<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 24, 2000.
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
RX TECHNOLOGY HOLDINGS, INC.
(NAME OF SMALL BUSINESS ISSUER IN ITS CHARTER)
------------------------------
<TABLE>
<S> <C> <C>
NEVADA 7310 87-0531751
(STATE OR JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NO.) IDENTIFICATION NO.)
</TABLE>
------------------------
2264 SEVENTH STREET
MANDEVILLE, LOUISIANA 70471
(504) 727-9412
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES)
------------------------------
DONALD REX GAY
CHIEF EXECUTIVE OFFICER
2264 SEVENTH STREET
MANDEVILLE, LOUISIANA 70471
(504) 727-9412
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------------------
COPIES OF ALL COMMUNICATIONS TO:
GREGORY BARTKO, ESQ.
Law Offices of Gregory Bartko, P.C.
3475 Lenox Road, Suite 400
Atlanta, Georgia 30326
(404) 238-0550
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM (1)
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE PROPOSED OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, $.001 Par Value Per Share
Underlying Common Stock Warrants....... 501,493 $6.00 $3,008,958 $837.00
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(g) under the Securities Act.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
The information in this prospectus is not complete and may change. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission becomes effective. This prospectus is not an
offer to sell these securities and is not soliciting offers to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
SUBJECT TO COMPLETION DATED APRIL 24, 2000
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
501,493 SHARES OF COMMON STOCK
UNDERLYING 501,493 COMMON STOCK
PURCHASE WARRANTS
RX TECHNOLOGY HOLDINGS, INC.
------------------------
We are registering:
- 501,493 common stock purchase warrants to be distributed as soon as
practicable after the date of the prospectus, to stockholders of record as
of May 1, 2000; and
- 501,493 shares of common stock, par value $.001 per share, issuable upon
the exercise of the common stock purchase warrants, at $6.00 per share.
Each common stock purchase warrant you hold entitles you to purchase one
share of our common stock, at any time up until December 31, 2001, provided this
prospectus is still current or has been updated. Whether a current prospectus is
in effect or not, we can call and redeem the common stock purchase warrants for
$.01 per warrant, on 30 days notice, at any time after the date of this
prospectus.
Prior to this offering, only a limited public market has existed for our
common stock. You are not assured that any public market will continue in the
future. Our common stock is quoted on the NASD's Electronic Bulletin Board under
the Symbol "RXTXE". The current bid price quotation is $2.00. We arbitrarily
determined the exercise and redemption prices of the common stock purchase
warrants, which bear no relationship to assets, shareholders' equity or any
other objective criteria of value.
We are in the business of designing, building, installing and servicing
digital imaging photo systems that have progressed towards a fully integrated
turnkey approach that provide digital photographs. See "Business."
YOU SHOULD NOT PURCHASE THESE SECURITIES IF YOU CANNOT AFFORD TO RISK THE
LOSS OF YOUR ENTIRE INVESTMENT. INVESTING IN OUR COMMON STOCK INVOLVES
SUBSTANTIAL RISKS, SUCH AS THOSE DESCRIBED UNDER "RISK FACTORS" BEGINNING ON
PAGE 5.
SHARES OF COMMON STOCK ISSUED UPON EXERCISE OF THE COMMON STOCK PURCHASE
WARRANTS INVOLVES A HIGH DEGREE OF RISK AND SUBSTANTIAL AND IMMEDIATE DILUTION
AND SHOULD NOT BE PURCHASED BY ANYONE WHO CANNOT AFFORD TO RISK THE LOSS OF
THEIR ENTIRE INVESTMENT. SEE "RISK FACTORS" HEREIN.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THE PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS APRIL , 2000.
<PAGE>
- --------------------------------------------------------------------------------
You should only rely on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from
that contained in this prospectus. This prospectus does not constitute an
offer or a solicitation of an offer by anyone in any jurisdiction in which
such offer or solicitation is not authorized or is unlawful. The information
contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or of any
distribution of the options.
- ------------------------------------------
------------------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
SUMMARY..................................................... 1
RISK FACTORS................................................ 5
FORWARD-LOOKING STATEMENTS.................................. 11
USE OF PROCEEDS............................................. 12
DIVIDEND POLICY............................................. 12
CAPITALIZATION.............................................. 12
DILUTION.................................................... 13
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION................................................. 13
BUSINESS.................................................... 14
MANAGEMENT.................................................. 23
PRINCIPAL SHAREHOLDERS...................................... 27
DESCRIPTION OF SECURITIES................................... 29
SHARES ELIGIBLE FOR FUTURE SALE............................. 31
PLAN OF DISTRIBUTION........................................ 31
EXPERTS..................................................... 33
LEGAL MATTERS............................................... 33
ADDITIONAL INFORMATION...................................... 33
FINANCIAL STATEMENTS........................................ F-1
</TABLE>
------------------------
i
<PAGE>
PROSPECTUS SUMMARY
THIS SUMMARY HIGHLIGHTS IMPORTANT INFORMATION. AS A SUMMARY, IT IS
NECESSARILY INCOMPLETE AND DOES NOT CONTAIN ALL THE INFORMATION YOU SHOULD
CONSIDER BEFORE INVESTING. YOU SHOULD READ THE ENTIRE PROSPECTUS CAREFULLY.
OUR COMPANY
We were originally incorporated in Nevada on December 22, 1993 as RXT, Inc.
By amendment to the articles of incorporation dated December 20, 1994, we
changed our corporate name to RX Technology Inc. On February 16, 2000, we
entered into an agreement and plan of reorganization with Valley Excavation and
Trucking, Inc. that provided that all of our outstanding shares of common stock
on that date would be exchanged for shares of common stock issued by Valley.
After the date of this agreement, Valley changed its name to RX Technology
Holdings, Inc., and RX Technology, Inc. became our wholly-owned subsidiary.
References to our company throughout this prospectus include RX Technology
Holdings, Inc., formerly known as Valley Excavation and Trucking, Inc., and our
wholly-owned subsidiary, RX Technology, Inc.
OUR BUSINESS
We are in the business of designing, building, installing and servicing
digital imaging photo systems. These systems have progressed towards being fully
integrated and are turnkey for generating digital photographs. We manufacture
selected key components for the integration of our photo systems. We have
acquired extensive knowledge and technical know-how to deploy our technology and
photo systems in targeted markets and selected applications. Our photo systems,
and those operated by RX Technology Europe Limited, are widely used in the theme
park, thrill ride and attraction industry in the United States, Europe, Asia and
Latin America. We have a total of 59 operating sites in the Unites States and
South America, 41 of which are staffed and operated by us.
The technology used in our photo systems represents 15 years of research and
development primarily conducted in Europe. The uniqueness of our software
application gives us, among other benefits, the flexibility to position our
photo systems equipment in locations that capture photographs at the point of
maximum expression and excitement. We capture that precise moment then digitize
the pictures, store them electronically, display them and instantly print them,
in approximately 30 seconds, only at the time a sale is made.
OUR TECHNOLOGY AND ALLIANCES
By agreement with Mr. Gay, our chief executive officer, European-based
engineers formed a company in April 1994 that is now one of our stockholders, RX
Technology Europe Limited. RX Technology Europe Limited has territorial
marketing rights within Europe and Africa. RX Technology Europe Limited provides
us with research and development services and provides us with specific hardware
and software equipment. Both companies benefit from any new software and
hardware developments.
We have formed alliances with major corporations such as Polaroid and Kodak,
which increases our exposure in the digital photo systems market. In addition to
our 59 site locations, we have letters of intent or are in negotiations for the
installation of 18 new photo systems for this current season, including Mexico
City, Mexico.
OUR PRINCIPAL OFFICES
Our principal executive offices are located at 2264 Seventh Street,
Mandeville, Louisiana 70471. Our telephone and facsimile numbers at that
location are 504-727-9412 and 504-727-9815, respectively. Our website is located
at www.rxtechnology.com.
1
<PAGE>
THE OFFERING
<TABLE>
<S> <C>
Securities Offered........................... 501,493 shares of our common stock, $.001 par
value, underlying 501,493 common stock
purchase warrants. See "Description of
Securities."
Offering Prices.............................. $6.00 per share underlying the common stock
purchase warrants.
Plan of Distribution......................... The shares of common stock will be offered
and sold without any discounts or other
commissions, to holders of the common stock
purchase warrants, when they exercise them.
See "Plan of Distribution."
Use of Proceeds.............................. We could potentially receive gross proceeds
of as much as $3,008,958 from the sale of the
501,493 shares of common stock issuable upon
exercise of the common stock purchase
warrants, if all warrants are exercised. Any
proceeds will be used generally to provide
additional working capital, but have not been
specifically allocated, inasmuch as there is
no assurance any of the common stock purchase
warrants will be exercised.
Transfer Agent............................... Interwest Transfer Company, Inc., 1981 East
4800 South, Suite 100, Salt Lake City, Utah
84117, (801) 272-9294
Securities Outstanding....................... We are authorized to issue up to 50,000,000
shares of common stock and presently have
9,026,870 shares of common stock issued and
outstanding as of April 14, 2000. We have
reserved from our authorized capital 501,493
shares of common stock for issuance upon
exercise of the common stock purchase
warrants. We are also authorized to issue up
to 1,000,000 shares of preferred stock in one
or more series with such rights and
preferences as the board of directors may
designate. Our board of directors has not
designated any series of preferred stock.
Common Stock Purchase Warrants............... Each common stock purchase warrant you hold
entitles you to purchase one share of common
stock at any time up until December 31, 2001,
provided this prospectus is still current or
has been updated. The exercise price is $6.00
per share, subject to adjustment in certain
events. Each of the common stock purchase
warrants is callable and can be redeemed by
us for $.01 per warrant on 30 days notice at
any time after the date of this prospectus.
See "Description of Securities--Warrants."
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
Risk Factors................................. An investment in our securities is highly
speculative. You will suffer substantial
dilution in the book value per share of the
common stock compared to the purchase price.
If substantial funds are not received from
exercise of the common stock purchase
warrants, of which there is no assurance, we
may require additional funding for which we
have no commitments. No person should invest
who cannot afford to risk loss of the entire
investment. See "Risk Factors."
</TABLE>
SUMMARY CONSOLIDATED FINANCIAL DATA
The following table summarizes certain financial data for RX Technology,
Inc. This information is qualified by reference to, and should be read together
with, the historical financial data for the years ended December 31, 1998 and
1999 and should be read in conjunction with our audited financial statements
included elsewhere in this prospectus. The historical financial data as of
December 31, 1998 and 1999 are derived from and should be read in conjunction
with our unaudited financial statements included elsewhere in this prospectus.
The data presented below should also be read in conjunction with Management's
Discussion and Analysis of Financial Condition and Results of Operations and the
financial statements and accompanying notes appearing elsewhere in this
prospectus.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
-------------------------------------
DECEMBER 31, 1998 DECEMBER 31, 1999
----------------- -----------------
<S> <C> <C>
Statement of Operations Data:
Revenue................................................... $4,332,411 $6,028,397
Cost of revenue........................................... 2,182,860 3,049,454
Operating cost and expenses............................... 1,976,473 3,207,170
---------- ----------
Income (loss) from operations............................. 173,078 (228,227)
Interest expense.......................................... 143,098 595,119
Income tax expense........................................ 16,431 --
---------- ----------
Net Income (loss)........................................... $ 13,549 $ (823,346)
========== ==========
</TABLE>
3
<PAGE>
RISK FACTORS
AN INVESTMENT IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. IN ADDITION
TO THE OTHER INFORMATION IN THIS PROSPECTUS, YOU SHOULD CAREFULLY CONSIDER THE
FOLLOWING RISK FACTORS BEFORE INVESTING IN OUR SECURITIES.
WE HAVE A LIMITED OPERATING HISTORY AND MAY FACE DIFFICULTIES ENCOUNTERED BY
EARLY STAGE COMPANIES IN NEW AND RAPIDLY EVOLVING MARKETS. We have a limited
operating history and have only been providing our products and services since
1993. As a result, we have a limited operating history upon which you may
evaluate our business and prospects. Our prospects must be considered in light
of the risks, expenses, delays, problems and difficulties frequently encountered
by early stage companies.
WE HAVE INCURRED NET LOSSES SINCE COMMENCING OUR BUSINESS AND WE EXPECT
LOSSES FROM OPERATIONS IN THE FUTURE. We have not achieved profitability and
expect to continue to incur operating losses for the foreseeable future. For our
year that ended December 31, 1999, our net loss was $823,346. We expect to
continue to incur significant operating losses and capital expenditures and, as
a result, we expect significant net losses in the future and we will need to
generate significant revenues to achieve and maintain profitability.
WE MAY BE UNABLE TO MEET OUR FUTURE CAPITAL REQUIREMENTS. We have limited
operating capital, and we are dependent upon the receipt of cash from our
operations and elsewhere to develop our business as intended. We believe that
cash provided from our operations, plus capital we received in our most recent
private placement, will allow us to meet our cash and capital requirements for
the next 12 months. However, no assurance can be given that additional financing
may not be required by us in the future.
Since the warrants are exercisable only at the election of the holders, we
can not rely on the receipt of any cash proceeds from the exercise of the
warrants. Since the amount of capital available to us may be limited, it may not
be sufficient to enable us to fully develop our business without additional
capital raising activities. If appropriate financing is not obtained by us in
the future, we intend to modify our operations accordingly. We may require
additional funding sooner than anticipated. If we raise additional capital
through the sale of equity, including preferred stock, or convertible debt
securities, the percentage of ownership of our stockholders will be diluted.
WE DEPEND HEAVILY ON OUR CHIEF EXECUTIVE OFFICER, D. REX GAY, AND WE MAY NOT
BE ABLE TO REPLACE HIS SERVICES IF HE WERE NO LONGER AVAILABLE TO US. We are
highly dependent upon the continued services of Donald Rex Gay, our chief
executive officer and founder. To date, we have not sought to obtain any key man
life insurance coverage insuring the life of Mr. Gay, and we do not anticipate
obtaining such coverage in the foreseeable future. We have also not yet entered
into a written employment agreement and covenants not to compete with Mr. Gay.
The loss of Mr. Gay's services would have a material adverse effect upon our
business, our relationships with customers and on our financial condition and
results of operations. There can be no assurances that we would be able to
replace Mr. Gay in the event his services become unavailable.
WE MAY NOT BE ABLE TO EFFECTIVELY COMPETE IN THE DIGITAL IMAGING BUSINESS
DUE TO THE FACT THAT MANY OF OUR COMPETITORS ARE BETTER FINANCED, PUBLIC
COMPANIES WITH FAR GREATER FINANCIAL RESOURCES. Some of our competitors include
larger, better financed competitors in the theme park photography business, such
as Kodak, Polaroid, and Fuji. We believe, however, that these competitors are
reluctant to move swiftly into the digital realm as the bulk of their revenues
come from chemical-based film sales and development. These competitors stand to
lose revenue or be forced into expensive equipment upgrades once digital imaging
reaches a certain critical mass. However, no assurance can be given that these
or other competitors will not become in more direct competition with us.
Even though we believe we have discovered a niche market place that is not
currently being directly addressed by our major competitors, there are other
companies pursuing related technology and services to the theme park ride market
and the digital imaging business in general. These competitors may have
5
<PAGE>
greater financial resources, stronger management resources and a better ability
to enhance their share of the market. We cannot provide investors with any
assurances that our competitors will not gain greater market share in the
digital imaging business at our expense, and if they do, that will have an
adverse effect on our business and the results of our operations.
OUR MANAGEMENT WILL CONTROL 64% OF OUR COMMON STOCK AFTER ALL WARRANTS AND
OPTIONS ARE EXERCISED, AND THEIR INTERESTS MAY CONFLICT WITH YOURS. If all of
the warrants become fully exercised, and if our management were to exercise
their options, Mr. Gay and others in our group of officers and directors,
currently own and will have the right to vote 64% of our then issued and
outstanding common stock, without giving effect to any other potential issuances
of additional shares of common stock. Inasmuch as our articles of incorporation
do not provide for cumulative voting, our current management will be in a
position to elect all of our directors and thereby control us. The purchasers of
common stock underlying the warrants will have only a limited ability to elect
any of our directors or to significantly affect corporate decision making on
material events such as mergers or acquisitions.
THE EXERCISE PRICE OF THE COMMON STOCK RECEIVED UPON EXERCISE OF THE
WARRANTS WAS DETERMINED ARBITRARILY AND BEARS NO RELATIONSHIP TO THE PRICE OF
OUR COMMON STOCK QUOTED ON THE OVER-THE COUNTER ELECTRONIC BULLETIN BOARD. The
exercise prices of the warrants were arbitrarily determined by our board of
directors at the time of grant and bears no relationship to the bid or ask
prices of our common stock as quoted on the Over-the-Counter Electronic Bulletin
Board. The exercise prices also bear no relationship to our assets, book value,
net worth or other economic or recognized criteria of value. In no event should
the exercise prices of our warrants be regarded as an indicator of any future
market price of our securities.
OUR CHIEF EXECUTIVE OFFICER, MR. GAY WILL HAVE SUBSTANTIAL CONTROL OVER OUR
AFFAIRS IF HE EXERCISES HIS WARRANTS AND IF HE EXERCISES HIS OPTIONS. Subject to
the limitations of Nevada corporate law, our chief executive officer, Mr. Gay,
will have voting and board of director control over us through his aggregate
common stock ownership. Mr. Gay now holds 4,933,000 shares of our common stock.
If he were to exercise all of the warrants he will receive in our distribution
of 501,493 warrants as of the May 1, 2000 record date, and if he were to
exercise the 2,959,836 options he received on February 16, 2000, he would then
hold a total of 8,166,892 of our shares of common stock then outstanding.
Mr. Gay will have the right, assuming our ownership does not change materially,
to perpetuate his status as an officer and director and therefore conduct our
business and affairs. The terms of any future employment agreements or other
agreements between us and Mr. Gay will not be the result of any arm's length
bargaining or negotiation, and such transactions involve inherent conflicts of
interest. There is no assurance that such transactions are or will be favorable
to us due to the lack of arm's length bargaining.
THE MANNER IN WHICH WE OBTAIN OUR DIGITAL IMAGING EQUIPMENT INCREASES OUR
LEVERAGE AND OUR FINANCE COSTS. In the past, we have purchased or leased our
digital imaging equipment by financing the equipment at market financing rates.
The use of leverage to finance our equipment purchases increases our risk of
loss as opposed to if we borrowed a smaller portion or none of the purchase
price of this equipment. Our risk is increased because we must satisfy these
obligations on specific dates, regardless of our revenues. If we do not meet our
debt service payments when due, we may be forced to forfeit the equipment
securing the debt.
THERE IS NO ASSURANCE OF A LIQUID PUBLIC MARKET FOR OUR COMMON STOCK.
Although our common stock is now eligible for quotation on the Over-the-Counter
Electronic Bulletin Board maintained by the NASD, there has been no significant
liquid public market for our common stock. There has been no long term
established public trading market for the common stock and there can be no
assurance given that a regular and established market will be developed and
maintained for the common stock if the warrants are exercised. There can also be
no assurance as to the depth or liquidity of any market for our common stock or
the market prices at which our stockholders may be able to sell the common stock
in the future. Accordingly, investors may have difficulty in selling their
common stock in the future, and we can give no assurance that the common stock
can ever be resold.
6
<PAGE>
EXERCISING THE WARRANTS WILL RESULT IN ADDITIONAL DILUTION OF OWNERSHIP HELD
BY OUR EXISTING STOCKHOLDERS. When the holders of the warrants elect to exercise
their warrants, our existing stockholders will incur substantial immediate
dilution in their ownership percentage of their common stock compared to their
percentage ownership prior to the exercise of the warrants. Furthermore, if less
than all warrants are exercised, their ownership dilution will be less.
SINCE WE OBTAIN OUR RESEARCH AND DEVELOPMENT FROM RX TECHNOLOGY EUROPE
LIMITED, ONE OF OUR STOCKHOLDERS, OUR SUPPLY OF CURRENT PRODUCT AND SERVICE
DEVELOPMENTS WILL BE ADVERSELY AFFECTED IF OUR RELATIONSHIP IS TERMINATED.
Through a relationship between our chief executive officer and RX Technology
Europe Limited, we have access to new product updates and technology
improvements. This relationship has worked well for us, but if our relationship
was to be terminated or limited for any reason, we would not be able to gain
access to needed software or hardware developments that are needed to maintain
and improve our products and services. Without this relationship with RX
Technology Europe Limited, our business may not succeed and our technology may
become obsolete, which would have a significant negative impact on our business
and results of operations.
WE MAY BE UNABLE TO RESPOND TO RAPID TECHNOLOGICAL CHANGES IN THE DIGITAL
IMAGING INDUSTRY, WHICH COULD MATERIALLY HARM OUR ABILITY TO CONTINUE AND EXPAND
THE SYSTEMS WE HAVE. The digital imaging business is characterized by rapidly
changing technologies and evolving industry standards. We must continue to
develop, enhance and improve our photo systems to remain competitive in the
event photography industry. We also need to integrate the various software
programs and tools required to enhance and improve our product offerings and
manage our business. We may experience difficulties that could delay or prevent
the successful development, introduction or marketing of new digital imaging
products and services. We could also incur substantial costs if we need to
modify our services or infrastructure to adapt to these changes.
WE MAY DILUTE YOUR CURRENT OWNERSHIP BY ISSUING ADDITIONAL SHARES OF OUR
COMMON AND PREFERRED STOCK. We are authorized to issue up to 50,000,000 shares
of common stock. Without considering the shares of common stock underlying the
warrants, we have 9,026,870 shares of common stock issued and outstanding. To
the extent of such authorization, our board of directors has the ability,
without seeking stockholder approval, to issue additional shares of common stock
in the future for such consideration as the board of directors may consider
sufficient. The issuance of additional common stock in the future will reduce
the proportionate ownership and voting power of all of our common stock.
We are also authorized to issue up to 1,000,000 shares of preferred stock,
the rights and preferences of which may be designated in series by the board of
directors. To the extent of such authorization, such designations may be made
without stockholder approval. The board of directors has not designated any
series or issued any shares of preferred stock. The designation and issuance of
preferred stock in the future would create additional securities that in all
likelihood would have dividend and liquidation preferences over our common
stock. Furthermore, the grant of additional warrants or options or similar
rights to purchase shares of our capital stock would increase the dilutive
effect to our existing stockholders.
SHARES ELIGIBLE FOR FUTURE SALE COULD IMPAIR OUR STOCK PRICE. The market
price of our common stock as quoted on the Over-the-Counter Electronic Bulletin
Board could drop due to sales of a large number of shares of our common stock or
the perception that these sales may occur. These factors could also make it more
difficult to raise funds through future offerings of common stock. The 501,493
shares of common stock registered for sale under this prospectus, except 277,148
shares that are the subject of warrants to be distributed to our officers,
directors or affiliates, will be freely salable in the market. Shares of our
common stock that may be received by our officers, directors or affiliates after
exercise of their warrants are deemed restricted securities as that term is
defined under the Securities Act; and in the future these shares may qualify for
resale into a public market under Rule 144, which provides, in essence, that a
person holding restricted securities for a period of one year may sell every
three months, in brokerage transactions and/or marker maker transactions, an
amount equal to the greater of: (a) 1% of our issued and outstanding
7
<PAGE>
common stock; or (b) the average weekly trading volume of our common stock
during the four calendar weeks prior to such sale.
Rule 144 also permits, under certain circumstances, the resale of shares
without any quantity limitation by a person who is not an affiliate and who has
satisfied a two-year holding period. At the date of this prospectus, there are
4,988,653 shares of common stock outstanding in the hands of our affiliates that
would qualify for Rule 144 resales if and when all other conditions of Rule 144
are complied with and a public market for our shares of common stock exists.
There can be no assurance as to the market effect of such resales on the market
price of the common stock.
FLUCTUATIONS IN OUR QUARTERLY RESULTS MAY ADVERSELY AFFECT OUR STOCK PRICE.
We expect to experience significant fluctuations in our future quarterly
operating results due to a variety of factors, many of which are outside our
control. As a result, we believe that quarterly comparisons of our operating
results are not necessarily meaningful and that investors should not rely on the
results of one quarter as an indication of our future performance. We believe it
is likely that, in the future, fluctuations in our quarterly operating results
will cause our results to fall below comparable historical periods and the
expectations of securities analysts and investors, which could cause the price
of our common stock to drop. Factors that may negatively affect our quarterly
operating results include:
- our ability to attract new customers;
- the weather trends across the United States that impact the number of
people using theme parks and entertainment facilities;
- the announcement or introduction of new or enhanced products by our
competitors;
- changes in our pricing policies or the pricing policies of our
competitors;
- the amount and timing of operating costs and capital expenditures relating
to expansion of our business, operations and infrastructure; and
- our ability to attract and retain new personnel in a timely and effective
manner.
WE RELY ON TECHNOLOGIES LICENSED OR OBTAINED BY AGREEMENT FROM THIRD
PARTIES. We currently license from third parties certain technologies and
information incorporated into our photo systems. As we continue to introduce new
products that incorporate new technologies, we may be required to license
additional technology from others. We cannot assure you that these third-party
technology licenses will continue to be available to us on commercially
reasonable terms, if at all. Additionally, we cannot assure you that the third
parties from which we currently license our technology will be able to defend
their proprietary rights successfully against claims of infringement.
Any failure to obtain any of these technology licenses could result in
delays or reductions in the introduction or servicing of our products, features,
functions or services. It could also negatively affect the performance of our
existing products until equivalent technology can be obtained.
OUR OPERATING RESULTS DEPEND ON OUR NETWORK INFRASTRUCTURE AND TRANSACTION
POINT-OF-SALE SYSTEMS. The satisfactory performance, reliability and
availability of our products, transaction-processing systems and network
infrastructure are critical to our operating results, as well as to our ability
to attract and retain customers and maintain adequate customer service levels.
Any system interruptions that result in the unavailability of our products or
reduced performance of our transaction systems would reduce the volume of
revenues and the attractiveness of our products and services, which would
seriously harm our business, operating results and financial condition. If the
volume of our business were to increase significantly, we will need to further
expand and upgrade our technology, transaction processing-systems and network
infrastructure. Our transaction processing systems and network infrastructure
may not be able to accommodate increases in traffic in the future. Any inability
to do so could negatively impact our business, operating results and financial
condition.
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OUR COMPUTERS AND COMMUNICATIONS SYSTEMS ARE VULNERABLE TO DAMAGE OR
INTERRUPTION WHICH MAY HINDER OUR ABILITY TO DELIVER TIMELY OUR PRODUCTS AND
SERVICES. Our ability to successfully provide our products and services depends
on the efficient and uninterrupted operation of our computers and communications
hardware systems. Substantially all of our computer and communications systems
are located in Mandeville, Louisiana. Our systems and operations are vulnerable
to damage or interruption from fire, flood, power loss, telecommunications
failure, break-ins and similar events. Despite our implementation of network
security measures, our servers are vulnerable to computer viruses, physical or
electronic break-ins and similar disruptions, which could lead to interruptions,
delays, loss of data or the inability to accept and confirm customer
information. The occurrence of any of the foregoing risks could negatively
impact our business, operating results and financial condition.
RAPID TECHNOLOGICAL CHANGES IN THE DIGITAL IMAGING BUSINESS COULD RENDER OUR
PRODUCTS AND SERVICES OBSOLETE. If we are unable, for technical, legal,
financial or other reasons, to adapt in a timely manner in response to changing
market conditions or customer requirements, our business, operating results and
financial condition could be harmed. Our photo systems, and in part, our
electronic commerce application through our e-kiosks, are characterized by rapid
technological change, sudden changes in customer requirements and preferences,
frequent new product and service introductions embodying new technologies and
the emergence of new industry standards and practices that could render our
existing technology obsolete. The emerging nature of these products and services
and their rapid evolution will require that we continually improve the
performance, features and reliability of our products. Our success will depend,
in part, on our ability:
- to enhance our existing products and services;
- to develop and license new technologies that address the increasingly
sophisticated and varied needs of our current and prospective customers;
and
- to respond to technological advances and emerging industry standards and
practices on a cost-effective and timely basis.
The development of electronic commerce products and other proprietary
technology entails significant technical and business risks and requires
substantial expenditures and lead time. We may be unable to use new technologies
effectively or adapt our products to customer requirements or emerging industry
standards.
WE WILL HAVE BROAD DISCRETION IN THE USE OF THE PROCEEDS FROM THE EXERCISE
OF THE WARRANTS. THIS WILL INCREASE THE RISK THAT WE WILL NOT USE THE PROCEEDS
EFFECTIVELY OR THAT WE WILL USE THEM IN WAYS THAT YOU DO NOT AGREE. The net
proceeds, if any, from the exercise of the warrants will be added to our working
capital and will be available for general corporate purposes, including
operating expenses and capital expenditures. In addition, we may use a portion
of any such net proceeds to acquire or invest in complementary businesses,
technologies, services or products. We cannot state with certainty particular
uses for the net proceeds from the exercise of the warrants, and will have broad
discretion in the use of the net proceeds. We can give no assurance as to
whether any net proceeds will be obtained from the exercise of the warrants.
EFFECTIVELY MANAGING OUR GROWTH MAY BE DIFFICULT. We expect to grow rapidly
by placing new photo systems in additional Theme Parks in the United States and
Latin America, including Mexico. We also believe we will grow rapidly by
developing additional applications for our photo systems, such as event
photography. This growth is likely to place a significant strain on our
resources and technology systems. To manage our growth, we must implement new
systems and train and manage our employees. We also will need to hire additional
personnel to service our existing and new photo systems. We cannot assure you
that our management will be able to effectively or successfully manage our
growth.
RISK OF FAILURE OF OUR COMPUTER AND COMMUNICATIONS HARDWARE SYSTEMS
INCREASES WITHOUT REDUNDANT FACILITIES. Our business depends on the efficient
and uninterrupted operation of our computer software
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and hardware systems. Any system interruptions may reduce the attractiveness of
our products to potential customers and could materially adversely affect our
business, financial condition and operating results. We do not have back-up or
redundant facilities for our computer systems. Interruptions may also result
from natural disasters as well as power loss, telecommunications failures and
similar events.
OUR SYSTEMS MAY NOT BE YEAR 2000 COMPLIANT. We may realize exposure and risk
if the systems on which we are dependent to conduct our operations are not Year
2000 compliant. Our potential areas of exposure include products purchased from
third parties, computers, software, telephone systems and other equipment used
internally. If our present efforts to address the Year 2000 compliance issues
are not successful, or if distributors, suppliers and other third parties with
which we conduct business do not successfully address such issues, our business,
operating results and financial position could be materially adversely affected.
In the event that our system is not Year 2000 compliant, we may have difficulty
in maintaining our own websites. At the date of this prospectus, we have not
encountered any material Year 2000 problems.
OUR COMMON STOCK PRICE ON THE OVER-THE-COUNTER ELECTRONIC BULLETIN BOARD IS
LIKELY TO BE HIGHLY VOLATILE. The market price of our common stock may be highly
volatile, just as the stock market in general, and the market for technology
companies in particular, have been highly volatile. Investors may not be able to
resell their shares of common stock following periods of volatility because of
the market's adverse reaction to such volatility. The trading prices of many
technology stocks have reached historical highs within the last year and have
reflected relative valuations substantially above historical levels. During the
same period, such companies' stocks have also been highly volatile and have
recorded lows well below such historical highs. We cannot assure you that our
stock will trade at the same levels as other technology stocks or that
technology stocks in general will sustain their current market prices. Factors
that could cause such volatility may include, among other things:
- changes in the prices of the stock market as a whole;
- actual or anticipated variations in quarterly operating results;
- announcements of technological innovations;
- new digital imaging products or services;
- changes in financial estimates by securities analysts;
- conditions or trends in the technology industry;
- changes in the market valuations of other technology companies;
- announcements by us or our competitors of significant acquisitions,
strategic partnerships or joint ventures;
- capital commitments;
- additions or departures of key personnel; and
- substantial sales of common stock by our stockholders.
Many of these factors are beyond our control and they may materially
adversely affect the market price of our common stock, regardless of our
operating performance.
THERE IS A RISK THAT OUR COMMON STOCK WILL BE DELISTED FROM THE
OVER-THE-COUNTER ELECTRONIC BULLETIN BOARD. Our common stock is currently
eligible for quotation on the Over-the-Counter Electronic Bulletin Board under
the symbol RXTXE. The NASD has implemented an eligibility rule that requires
companies listed on the Bulletin Board to become reporting companies with the
Securities and Exchange Commission during a phase in schedule. The deadline for
us to become a reporting company is currently set for May 7, 2000. In the event
we are unable to comply with the eligibility rule by that date, our stock will
be delisted from the Bulletin Board and it is expected that such delisting will
have a negative impact on the price and
10
<PAGE>
trading activity in our common stock, even though our common stock would
continue to be eligible for quotations in the Electronic Pink Sheets maintained
by the National Quotations Bureau, Inc. Notwithstanding the filing of a
registration statement with the Securities and Exchange Commission, no assurance
can be given that we will be able to comply with the eligibility rule on a
timely basis or that our common stock will continue to be eligible for quotation
on the Over-the Counter Electronic Bulletin Board.
YOU WILL INCUR IMMEDIATE AND SUBSTANTIAL DILUTION WHEN THE WARRANTS ARE
EXERCISED. Warrant holders who exercise their warrants to purchase the
underlying shares of common stock will suffer substantial dilution in the
purchase price of the shares compared to the net tangible book value per share
immediately after the purchase. The exact amount of dilution will vary depending
upon the total number of options exercised, and will be greater if less than all
the warrants are exercised. The fewer warrants exercised, the greater dilution
will be with respect to the warrants that are exercised.
APPLICABILITY OF LOW-PRICED STOCK RISK DISCLOSURE REQUIREMENTS. Our common
stock may be considered a low-priced security under rules promulgated under the
Securities Exchange Act of 1934. Under these rules, broker-dealers participating
in transactions in low-priced securities must first deliver a risk-disclosure
document which describes the risks associated with such stocks, the
broker-dealer's duties, the customer's rights and remedies, and certain market
and other information. Broker-dealers must also make a suitability determination
approving the customer for low-priced stock transactions based on the customer's
financial situation, investment experience and objectives. Broker-dealers must
also disclose these restrictions in writing and provide monthly account
statements to the customer, and obtain specific written consent of the customer.
With these restrictions, the likely effect of designation as a low-priced stock
is to decrease the willingness of broker-dealers to make a market for the stock,
to decrease the liquidity of the stock and increase the transaction cost of
sales and purchases of such stocks compared to other securities.
CURRENT PROSPECTUS IN REQUIRED IN ORDER TO EXERCISE ANY WARRANTS.
Holders of the warrants may exercise their warrants to acquire the
underlying common stock only if a current prospectus relating to the company is
then in effect and such exercise is qualified or exempt from qualification under
applicable securities laws of the states in which the holders of the warrants
reside. Although we intend to use our best efforts to maintain a current
prospectus and federal and state registration/qualification for such exercise,
there is no assurance that we will be able to do so when a holder may wish to
exercise warrants. The value of the warrants will be greatly diminished if we do
not maintain your ability to exercise them.
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that address, among
other things, our digital imaging business strategy, our photo systems expansion
strategy, the development and expansion of our products and services, use of
proceeds, projected capital expenditures, liquidity, development of additional
revenue sources, development of marketing and distribution alliances, market
acceptance of our e-commerce application and technological advancements. These
statements may be found in the sections of this prospectus entitled "Prospectus
Summary," "Risk Factors," "Use of Proceeds," "Management's Discussion and
Analysis of Financial Condition and Results of Operations," "Business" and in
this prospectus generally. Our actual results could differ materially from those
anticipated in these forward-looking statements as a result of various factors,
including all the risks discussed in "Risk Factors" and elsewhere in this
prospectus.
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USE OF PROCEEDS
The net proceeds we may receive from the sale of shares of common stock
underlying the warrants will vary depending upon the total number of warrants,
and the timing of and prices at which they are exercised. We can give no
assurances that any warrants will be exercised or that we will obtain any net
proceeds from exercise of the warrants. Regardless of the timing and number of
warrants exercised, we expect to incur offering expenses estimated at
approximately $72,500 for legal, accounting, printing and other costs in
connection with the offering pursuant to this prospectus.
The uses of any proceeds that we may receive from exercise of the warrants
will depend on the amounts received and the timing of their receipt. We will
have broad discretion in applying the net offering proceeds, and we have
presently identified the following categories of expenditures, in the general
order of their priority: (i) purchase of additional software and hardware for
new photo systems and related equipment; (ii) expenses for additional personnel
(iii) repayment of existing financing for software and hardware; (iv) product
research and development; and (v) working capital and general corporate
purposes.
DIVIDEND POLICY
We have never declared or paid any dividends on our common stock. We do not
anticipate paying any cash dividends in the foreseeable future. We currently
intend to retain future earnings, if any, to finance operations and the
expansion of our business. Any future determination to pay cash dividends will
be at the discretion of the board of directors and will be dependent upon our
financial condition, operating results, capital requirements and such other
factors as the board of directors deems relevant.
CAPITALIZATION
The following table sets forth our capitalization as of December 31, 1999.
Our capitalization is presented (i) on an actual basis; and (ii) on a pro forma
basis. The following table sets forth our:
- actual capitalization as of December 31, 1999;
- our pro forma capitalization as of December 31, 1999 giving effect to:
- the reverse acquisition with Valley Excavation and Trucking, Inc. at
February 16, 2000;
- the issuance of 2,026,870 shares of our common stock in our private
placement dated February 16, 2000 and March 24, 2000, and the receipt of
the offering proceeds;
- the exercise of 501,493 warrants at $6.00; and
- the payment of $72,500 of estimated offering expenses.
<TABLE>
<CAPTION>
PRO FORMA
WITH
501,493
ACTUAL PRO FORMA WARRANTS
------------- ---------- ----------
<S> <C> <C> <C>
Stockholders' equity
Common stock, $001. par value authorized-50,000,000
shares issued and outstanding--9,026,870............. $ 2,000 $ 9,027 $ 9,529
Additional paid-in capital............................. 60,698 4,087,728 7,023,684
Retained (deficit)..................................... (20,747) (695,338) (695,338)
------------- ---------- ----------
Total stockholders' equity............................. $ 41,951 $3,401,417 $6,337,875
============= ========== ==========
</TABLE>
Please read the capitalization table with Management's Discussion and
Analysis of Financial Condition and Results of Operations and the financial
statements included in this prospectus.
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DILUTION
Dilution is the difference between the price per share being paid for the
common stock upon exercise of the warrants, and the net tangible book value per
share of the common stock immediately after its purchase. Our net tangible book
value per share of common stock is calculated by subtracting total liabilities
from our total assets less any intangible assets and liquidation preferences,
then dividing by the number of shares of common stock then outstanding. Based on
our December 31, 1999 fiscal year end audited financial statements, we had
5,000,000 shares of common stock outstanding with a net tangible book value of
$33,646 or approximately $.006 per share. These amounts do not give effect to
operating results or any other changes in our net tangible book value or to any
obligations to issue shares of common stock after December 31, 1999.
Based upon an assumption that 501,493 shares of our common stock would be
purchased pursuant to 501,493 warrants to be distributed and exercisable at
$6.00 per share (of which there is no assurance), upon the exercise thereof, but
before giving effect to any other obligations to issue shares of common stock,
our estimated net tangible book value after the sale of these shares, on a pro
forma basis (which gives effect to receipt of the estimated net proceeds from
such exercise and issuance of the underlying shares of common stock, but does
not take into consideration any other changes in our net tangible book value
subsequent to December 31, 1999), would be approximately $2,970,104 or $.31 per
share. This would result in dilution to persons exercising warrants at $6.00 per
share of $5.69 per share. Net tangible book value per share would increase to
the benefit of present stockholders from $33,646 prior to the offering to
$2,970,104 after the offering, or an increase of $.31 per share attributable to
the exercise of the warrants.
If less than all the warrants are exercised, dilution to the holders who do
exercise will be greater than the amount shown. The fewer the number of options,
the greater the dilution will be to those who do exercise. The following table
sets forth the estimated net tangible book value per share assuming exercise of
all warrants during the first year, and the dilution to persons purchasing the
underlying shares of common stock:
<TABLE>
<S> <C>
Exercise of all $6.00 warrants:
exercise price per share.................................. $6.00
Net tangible book value per share prior to exercise......... $.006
Pro forma net tangible book value per share after exercise
of $6.00 warrants....................................... $ .31
Dilution per share to new investors for $6.00 warrants...... $5.69
</TABLE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
Gross revenue for the 12 months ended December 31, 1999, was $6,028,397, a
39.1% increase as compared to $4,332,411 for the same period of 1998. The
$1,695,986 increase in gross revenue was due primarily to installing new systems
in 1999, more aggressive sales at all installation sites and more efficient
operational management at all sites.
Our 1999 gross profit of $2,978,943 increased 38.6% from $2,149,511 for
1998. For 1999, the gross profit margin of 49.4% was down slightly from 49.6%
from 1998. The slight decline reflected an inability to secure all volume
discounts on purchase materials. This should be addressed in fiscal year 2000
and benefit next year's margin comparison.
Our 1999 operating expenses of $3,207,170 climbed 62.3% from $1,976,473 from
1998. Photo sales expense reflects on-site costs including labor and was
$1,490,270 for 1999 having increased 44.0% from $1,035,576 for 1998. This
$454,694 increase reflects installation costs for new systems, infrastructure
investment of personnel and expenses to support expansion and expected rapid
growth.
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Our 1999 general and administrative expenses of $1,716,900 increased 82.4%
from $940,897 for 1998. This $776,003 increase, in part, reflected major
one-time expenses associated with activities to secure additional financing and
start-up expenses on a major new accounting system.
Our operating expenses for 1999 were $3,207,170 and exceeded gross profit
resulting in a net operating loss of $228,227 for that year. For 1998, our
operating expenses totaled $1,976,473 and were less than gross profit resulting
in an operating income of $173,078 for 1998.
For fiscal year 1999, non-operating items were a $595,119 expense. This was
an unfavorable change of $452,021 from net non-operating income of $143,098 for
1998. This change reflected 1999 interest expense of $445,774 compared to
interest expense of $143,650 for 1998. Additionally, in 1999 we absorbed a
one-time financing fee of $150,000. Given a substantial injection of equity
capital in early 2000, we expect our debt and interest expense will be
materially reduced in fiscal year 2000.
For fiscal year 1999, we had a loss before income taxes of $823,346.
There was no reported income tax expense for 1999. This compares to income
before taxes of $29,980 for 1998. For fiscal year 1998, we showed income tax
expense of $16,431 and a net income of $13,549.
BUSINESS
OUR COMPANY
We are a leader in the design, integration, deployment, operation and
support of revenue-generating, digital imaging business sites that compliment
highest-traffic/highest-speed rides at some of the world's premier theme parks.
In real time, our systems capture, digitize, manipulate and display images of
all riders. Those images selected by a given rider for purchase are reproduced,
in less than one minute, in full-color hard-copy photo prints.
Our electronic technology illuminates and captures that split second time
slice needed to capture each individual pair or foursome of riders. Our
technology includes proprietary hardware, developed/copyrighted software and
extensive trade secret knowledge for theme park photography. Importantly, our
sites include computerized customer ordering accounting and service support
programs to track revenue, inventory and cost for monitoring profitability of
each site. Over the last five years, we have become the technology and market
leader in ride photography theme park imaging.
We have made strides towards establishing ourselves as a premier provider of
pictures in the leisure and entertainment segment of the market especially in
special event imaging. Utilizing portrait quality digital imaging systems
adapted from the theme park industry, we captured images during Christmas with
Santa Clause in Carlsbad, California. Also, RX Technology Europe Limited
participated with Harrods Department Store in capturing images during Easter and
Christmas with Santa Claus with the latter selling over 14,000 guest pictures in
1997, 15,000 in 1998 and 16,000 in 1999 each at $15.00. This technology was also
used at the New Orleans Jazz & Heritage Festival in 1999, at the Association for
Commuter Transportation International Conference in Washington D.C. and at major
corporate holiday functions in San Antonio, Texas in 1999.
HISTORY
We were founded in December 1993 by our chairman, president and chief
executive officer, Donald Rex Gay. Mr. Gay's business career spans 25 years
during which he founded and managed two successful businesses; one in medical
staffing and equipment and second in consumer digital imaging. Currently, we
have a three-person board of directors, consisting of Mr. Gay, Dr. Christopher
Marvell, co-managing director of RX Technology Europe Limited and Richard
Govatski, president of a successful software company.
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OUR FACILITIES
Our headquarters is in a modern 4,000-square feet facility located at 2264
7(th) Street, Mandeville, Louisiana 70471 (504-727-9412). This location is
minutes from a major international airport and the I-12 northern bypass of New
Orleans, Louisiana. Currently, we employ 14 full-time people, four of which work
at our Mandeville, Louisiana facility where the administration, testing and
integration facilities are housed. Our employee base also includes some 130
seasonal employees working, as needed, during the active open seasons in the
various Theme Parks.
MAJOR TECHNOLOGY ADVANCES
1994
- FULL CAMERA REMOTE CONTROL--PEPSI MAX THE BIG ONE (Blackpool, UK)
- OFFERING BOTH A5 (7"X5") PRINTS & MUGS--PEPSI MAX THE BIG ONE (Blackpool,
UK)
1995
- INTEGRATING SALES OF MUGS & T-SHIRTS--WICKED WITCH'S HAUNT (Thorpe Park,
UK)
- FLASH FOR CLOSE-UPS OF ALL RIDERS--PEPSI MAX THE BIG ONE (Blackpool, UK)
- FULLY AUTOMATIC LIGHT SENSOR--PEPSI MAX THE BIG ONE (Blackpool, UK)
- LASER-TRIGGERED HIGH-ACCURACY IMAGES--NEMESIS (Alton Towers, UK)
- IMAGES WITH THEME BACKGROUNDS--NEMESIS (Alton Towers, UK)
- DUAL CAMERA, DUAL FLASH--NEMESIS (Alton Towers, UK)
- A4 (11" X 8") SIZED PRINTS--NEMESIS (Alton Towers, UK)
1996
- PICTURE-IN-PICTURE PRESENTATION--TUTUKI, SPLASH (Port Adventure, Spain)
- QUAD CAMERA, QUAD FLASH SYSTEMS--BIG SHOT, STRATOSPHERE TOWER (Las Vegas,
NV)
1997
- SCANNING CAMERA SYSTEM--THE RIPSAW (Alton Towers, UK)
- SCANNING SYSTEM WITH CHROMA-KEY BACKGROUNDS--THE NICKELODEON (Alton
Towers, UK)
- ULTRA HIGH RESOLUTION DIGITAL PORTRAIT SYSTEM--HARRODS (London, UK)
1998
- FIVE CAMERA PICTURE-IN-PICTURE SYSTEM WITH THEMED BACKGROUND--OBLIVION
(Alton Towers, UK)
- DEVELOPED A UNIQUE INTERFACE TO BARCODE WRIST BANDS--PORT DISCOVERY
(Baltimore, MD)
1999
- BARCODE ACTIVATED DIGITAL IMAGING SYSTEM for images generated during an
event or activity are automatically displayed by the would-be-purchaser
brushing a wrist-band carried barcode past a scanner ATC CONFERENCE
(Washington, D.C.)
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2000
- WALK-ABOUT PHOTOGRAPHY where our personnel walk through the park digitally
capturing images of guests as they visit various areas/sites. These images
can be displayed and printed by barcode activation--SIX FLAGS FRONTIER
CITY (Oklahoma City, OK)
OUR CORPORATE STRATEGY
We have a seven-facet corporate strategy as follows:
/ / PROPEL SHAREHOLDER VALUE BY DRIVING GROWTH:
Our goals are to create long-term value for shareholders by increasing
revenues and profits. We plan to accomplish this by designing and deploying high
performance, low cost imaging systems that serve as stand alone profit centers.
To achieve these objectives, we will concentrate on high value consumer imaging
markets where we, and RX Technology Europe Limited, can capture a high
percentage of the available market and maintain that market share on a long-term
basis through the use of proprietary technology that captures and sells personal
images at permanent sites on a walk-about basis, as well as transient or special
events.
/ / TARGET MARKETS THAT OPTIMIZE OUR PRICE LEVERAGE:
Our profitability and shareholder value objectives are best met in selected
target markets where the photographed subjects are involved in an activity that
confers high emotional value and/or status to the subject. These photo
opportunities are characterized by settings where the subject is actively
involved in a unique activity or event that allows sufficient passiveness to
allow the capturing of the subject's photo image. Such settings involve extreme,
unique settings in which the subject is unlikely to have other photo
opportunities or a second chance to record participation in the event or
activity. Addressing the subject's desire to record the event can command a
premium price for such unique, high value images. Sales of such photo prints are
high impulse purchases and positioning the point of sale immediately after the
event enhances the impulse to purchase our product. We intend to exploit the
price leverage our technology provides to create value from our core amusement
park market as well as other target markets.
/ / DESIGN AND DEPLOY DIGITAL PHOTO SYSTEMS:
We intend to deploy and design digital photo systems and tri-system
electronic photo networks to serve multiple imaging markets in the amusement
park industry and at special events. These systems will include proprietary
front-end technologies that acquire, manipulate and store the photographic
images. Once captured and stored, these images will be marketed in a uniquely
designed photo booth or suite through which retail customers (e.g., riders on an
amusement park attraction) walk to preview images and select those to be
reproduced for purchase. The photo suite houses an end-to-end solution that not
only captures the images but also includes systems that (1) automatically
re-purpose the images (as well as sending text and video) for resale via
adjoining Internet kiosks, (2) manage sales activities, (3) track and capture
photo material use and costing information, and (4) record sales and site
profitability which interface with accounting systems and are summarized in
management reports.
/ / EFFECT BARRIERS TO ENTRY:
We plan to continuously enhance our technology used in the most technically
challenging imaging market--the ride photography industry and deploy this
technology in multiple markets requiring proprietary technology and uncommon
applications experience. One objectives in maintaining state-of-the-art systems
is to create and maintain strong market share in the amusement park industry so
that our competitors will face increasingly more difficult technological
know-how and cost entry barriers.
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/ / STRENGTHEN LEADERSHIP IN THEME PARKS WORLDWIDE:
We believe that our core market of the amusement park thrill ride industry
can provide us with double digit growth. Our proprietary technology,
relationships with park management, marketing experience and implementation
know-how have created a platform for continued growth in this market. We intend
to leverage these expertise to own and operate photo booths or suites to sell
premium-priced photo prints directly to retail customers as they exit thrill
rides. In doing so, we can offer value to customers by capturing the customer in
an activity that has limited opportunity for being recorded other than by us and
positions the sale of this unique product at the optimum moment of interest
immediately after experiencing the activity. We plan to also derive wholesale
revenue by selling or licensing our technology, marketing expertise and/or photo
supplies to third parties where the amusement park is less attractive to us for
direct ownership or operation. We also intend to reduce the seasonality of our
revenues by continuing to expand worldwide in the amusement park market and into
other under exploited target markets. We also intend to become a leader in
walk-about and front gate photography.
/ / PENETRATE SPECIAL EVENTS:
Over time, we intend to leverage our technology and imaging expertise gained
in the most technically challenging amusement park market to provide high-value
imaging in other markets such as transient events, for example conventions, and
seasonal and special events, for example Christmas pictures with Santa. One
objective of this diversification effort is to minimize the seasonal nature of
our cash flow caused by the amusement park industry's limited operating periods
in which they are generally closed in the winter.
/ / RE-PURPOSE IMAGES FOR RESALE ON THE INTERNET:
We intend to create derivative revenue opportunities for previously captured
images by allowing customers to have the electronic image, sent over the
internet, to a destination of their choosing. This will be accomplished by
making images available at unattended Internet kiosks or wireless computers
located next to our photo booths or suites. We also believe additional revenue
can be generated from amusement park and special events sponsors desiring to use
our captured images in their promotional material and advertising.
OUR PRODUCTS AND SERVICES
EQUIPMENT AND TECHNOLOGY
We design and deploy turnkey digital imaging systems, which provide unique
high quality photo prints in 30 seconds. In being totally digital, our imaging
networks can add effects, such as logos, overlays, framing, themed backgrounds,
picture-in-picture and 3-D, with no time delay. Additionally we can instantly
re-purpose the image for internet sale. We provide controls that ensure only
customer-requested images be reproduced as photo prints, thus avoiding misprints
and the costs associated with speculative selling. This superior image contents
enhancement and real time delivery is a result of our unique technology and
know-how, incorporating the following functions:
- Multiple burst custom flash units that enable high-speed image capture in
one second under adverse lighting conditions (shown-right);
- Cameras remotely controlled from sales building with pan, tilt, zoom and
focus capabilities;
- Automatic image capture, display and print operation; and
- On-demand, custom electronic point of sale terminals produce management
and accounting reports for any time interval
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Internet kiosks that allow the guest to send the images, as well as text and
video, over the internet, creating additional excitement and providing
additional direct and indirect revenue. Our imaging system captures images with
a high-resolution, non-film, digital camera. In the theme park industry, this
may result in one picture per ride or a series of pictures. Images are stored in
memory and viewable on monitors as guests exit the ride.
All photo print sales are made at our electronic point of sale units and the
required print(s) served by the imaging system to video printers. A PC is used
to configure and coordinate the imaging unit, electronic point of sale units,
and video printers, as well as to provide sales information and management
reports. If a guest elects to purchase additional images for Internet delivery,
this is also accomplished from the electronic point of sale unit; with a unique
pin number on his receipt the guest is able to access his image and send it with
a message over the Internet.
The guest can choose among a 5 X 7 size photo print in a custom folder, a
4 X 3 in a custom folder or a key chain or magnet with their picture inserted.
Prices may vary depending on the location and the demographics of the park.
Generally a discount is provided to the guest as an incentive to purchase a
second picture given that we can produce two or more photo prints on the same
sheet of print media/ special paper.
To help maximize the return on investment for us and for theme park/themed
entertainment centers, we are a one-stop source for site selection, system
design, integration, deployment, field support training and management reports.
Working with planners, architects and operators, our team of on-location
advisors and consultants, insure that the imaging sites envisioned by the client
will have adequate throughput volume for profitability, and will not require
costly retrofits. The minimum life expectancy of RXT digital imaging systems
installed is five years, although most installations will undoubtedly achieve
ten years or more of active service.
Our typical digital photo system captures, digitizes, and stores images
electronically for display on monitors so that customers may select images, as
photo prints, for purchase.
- Our digital photo systems print hundreds of pictures per hour, while
maintaining print quality, providing an easy-to-use and maintain system
that is effectively operated by summer or seasonal help.
- Integrated electronic point of sale stations contain customized price
schedules that prevent operators from making a mistake in selling a
product selection.
- Customized reports can be produced at any time and over any time interval
providing accounting activity level, revenue, cost and profit data for our
management.
- Unique custom logos, framing or themed backgrounds are added to prints
without any time delay.
- Resizing, mirroring or selecting an appropriate printer is completely
automatic eliminating down time and decision making by the operators of
the system.
- Our photo systems include various types of color printers offering A4, A5
and A6 formats giving us flexibility to provide the optimal solution in
meeting the needs of the guests.
OUR MARKETS
The world's top 20 theme parks account for a large percentage of the
worldwide theme park imaging revenue. We enjoy a healthy imaging revenue
penetration worldwide with significant over representation in class A parks
which are generally concentrated in North America and Western Europe. For these,
we are the penetration leader by a wide margin and we intend to increase
penetration levels over the next three years.
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Today, we have a total of 59 operating sites in the United States and South
America, 41 of which are staffed and operated by us. In addition, we have under
contract and expect to install 18 additional new installations by July 2000. In
North America, revenue peaks during the June to September vacation season. In
contrast, the Mexican and South American peak is October through February. Thus,
expansion into the latter continent has the strategic value in accelerating
consolidated revenue growth, while dampening the seasonality of revenue and cash
flow. In early August 1998, we installed the first two of our sites in Latin
America and will be installing four systems in Mexico in the next couple of
months.
MARKETS AND APPLICATIONS BEYOND THEME PARKS
We have developed several areas where our core digital imaging technology is
being used to expand our market share and revenue base. Additionally there are
several unique and well-researched markets where we will be able to expand upon
our competency in leisure and entertainment imaging. Over the past two years, we
have expanded into special event imaging and have participated in the Christmas
imaging market in conjunction with Legoland theme park in California.
Additionally, we have introduced a new special event photo system to be used
at business functions, sporting events, special promotions as well as for
walk-about front gate imaging. This photo system was utilized at The New Orleans
Jazz & Heritage Festival 1999, at the International Convention for the
Association For Commuter Transportation, at The Legoland Christmas Festival and
at USAA Insurance Holiday Events.
This photo system will also be utilized as the foundation for digital
imaging at ski resorts, white water rafting and other sporting venues. In some
instances a hybrid system utilizing high speed systems and walk about systems
will provide a variety of choices for attendees and guests. Several major
partners have been identified and we are entering negotiations.
We have determined that a viable market exists in the portable and temporary
deployment of our digital imaging technology. We are currently expanding the
following two markets:
- Selected Event Imaging Sites: Transportable digital imaging systems will
be physically deployed to Special Event locations. The organic nature of
the event selected will provide the context and content necessary to give
the individual a valuable emotional keepsake that cannot be duplicated at
any other place or time. These sites are best suited to one time events
(such as the Super Bowl, local fairs or large reunions); events lasting
several days or weeks (such as the time trials and running of the
Indianapolis 500, and the Olympic Games); and, seasonal events which
produces in excess of 10 million prints per year, with Christmas and
Easter being the major holidays.
- Licensed Content Enhanced Imaging Sites: Semi-permanent imaging sites will
be located in high-traffic areas with optimal demographics for periods of
up to a year or more. Sometimes the excitement and hoopla surrounding the
opening of a hot new "entertainment mecca" or tourist site will bring
extremely high levels of traffic for several months before the novelty
wears off and interest wanes. These locations may be well suited for a
semi-permanent placement that can be redeployed as activity/profitability
drops, or upgraded to a permanent installation if so warranted. These
sites will electronically deliver a myriad of "context" settings (such as
key scenes from top movies) that will give the customer a high emotional
value not constrained by the site's physical location.
OUR SOURCES OF REVENUE
One class of customer to which we sell our photo systems, print media,
software licensing, and service/ maintenance to third party owners/operators of
currently. Currently there are 13 of these sites. Sales agreements specify that
we are the sole supplier of print media (non photographic picture paper). In
1998, we sold over 1.0 million sheets of digital print media to customers in the
United States; in 1999, unit sales
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of digital print media exceeded 1.5 million sheets in the U.S. alone. Ongoing
support and media supply insures continuing contact with customers, as well as
an ongoing revenue stream.
Revenue sharing agreements with selected themed entertainment centers cover
46 of our installation sites. We furnish equipment, manage the photo systems and
in some cases hire the personnel with no up front money from the owner.
Obviously, we will only enter into this type of an arrangement when its analysis
shows the installation will be profitable.
INTERNET DEPLOYMENT
Our company and eKiosk.com have signed an agreement whereby we are the
exclusive representative for eKiosk, primarily in the Theme Park and themed
entertainment park Industries. In addition, we are considering representing
eKiosk in the placement of Internet kiosks in malls, airports and the like.
eKiosk is the leader and pioneer in the design, manufacture and deployment of
public Internet kiosks and their support systems to the travel and leisure
market. They provide public access to a wide variety of Internet, e-commerce,
and conventional messaging capabilities to hotels and resorts. Services include
telephone and data port access, Internet email access and Internet browsing for
corporate and personal use.
We are negotiating placement of internet kiosk units into theme parks and
themed entertainment centers both adjoined to our digital photo system
installations and in freestanding locations throughout the parks. The interface
with the internet through our relationship with eKiosk is a natural path of
distribution for us since we have captured and already stored in digital format
a unique and memorable image. Customers can now transmit their digital photo and
a video or text message to anyone anywhere in the world and also receive a high
quality photo print.
OUR STRATEGIC ALLIANCES
We have developed strategic relationships with Sony, Polaroid, Kodak, Fuji,
and other key peripheral manufacturers and suppliers. These relationships
provide leads, cooperative ventures, and advanced notification and availability
of new technology, new products and competitive pricing. Additionally, we are
often provided with the ability to purchase equipment and systems at substantial
discounts.
The major suppliers within the industry, Kodak, Cannon, Polaroid, Sony and
Fuji have all tried to create special marketing teams to develop and penetrate
sub markets or industries. For the most part, these efforts have not met
expectations. It is relatively easy to create a marketing team to develop a
particular niche, like the Theme Park industry; it is more difficult for larger
corporations to formulate a separate and stand alone marketing and business plan
for a digital imaging group.
OUR COMPETITION
Our ride photography competitors are small with no significant installation
base and, hence, not well positioned for market expansion. To date, we are aware
of no competitor that designed and developed its own systems solution; nor are
we aware of any competitor that effectively competed with our high quality and
high-speed digital photo systems. In 1998 and 1999 we replaced several ride
photo systems installed by competitions. Another class of competitors primarily
are involved in front gate photography and we believe there are few
installations of this type. New entrants to the themed imaging industry, such as
Image ID, Inc. may also aggressively pursue relationships with major parks,
vendors and concessionaires to find-established delivery and distribution
networks.
Competitors Include:
- Freeze Frame (Orlando, FL)--provides front gate systems, taking
pictures of people as they enter a park and for sale within a key chain
viewer, for example as they depart;
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- Kodak Themed Entertainment (Los Angeles, CA)--has been somewhat
successful in the very large parks. It is our understanding that they
provide a multi-million dollar sponsorship to the various parks,
negotiating rights of first refusal on any new or available
photographic souvenir sales sites. We believe we have competed
effectively against Kodak and, in fact, have implemented a joint
venture with Kodak; and
- Jackson Digital (Las Vegas, NV)--integrates various components and
provides some customized software as a part of the integration
solution. Jackson Digital also provides systems for fantasy photographs
and old time photos. The themed entertainment segment is not the major
focus of the company.
RESEARCH, DEVELOPMENT AND OUR RELATIONSHIP WITH RX TECHNOLOGY EUROPE LIMITED
Our need to stay ahead of the competition regarding systems cost, picture
quality, speed of print and other merchandising possibilities encourages the
rapid development of new techniques and services. Research and development takes
place in the United Kingdom by the RX Technology Europe Limited engineering
team. We have exclusive rights to the technology. We offer them technical,
sales, advertising, merchandising and promotional expertise in return for RX
Technology Europe Limited's research and development expertise. RX Technology
Europe Limited is effectively our supplier for all intellectual property,
software and hardware utilized in our operations.
Of it's own initiative, RX Technology Europe Limited continues to push
developments in digital imaging to include the design of custom hardware and
software. We continue to be kept fully informed of these developments, with
access to the technology and resultant new systems. RX Technology Europe Limited
charges us its product cost plus a mark-up to cover the test, supply and support
of the items under warranty (for the hardware items). The software is supplied
by RX Technology Europe Limited on an as is basis without any charge, for our
exclusive use.
In various combinations these custom and/or proprietary items are utilized
within a completed RX Technology, Inc. imaging system, which also includes
standard equipment from other manufacturers. These items are currently
manufactured in the United Kingdom but could be made by subcontract assembly
companies elsewhere. Software and hardware developed by RX Technology Europe
Limited and which has been made available us includes:
CUSTOM ELECTRONIC HARDWARE
1. Ultra-high-speed multi-trigger photographic flash
2. Camera triggering and control unit
3. PC based multi-monitor display system
4. PC based specialized frame grabber
5. PC based video print server
6. Video Line equalizer and sync corrector
7. PC based specialized network communications unit
8. Specialized electronic point of sale unit
9. Specialized multiple video printer controller
10. Multiple camera timing and selection unit
11. Other devices are currently under development
CUSTOM SOFTWARE
1. DOS photo system control/electronic point of sale/accounting software
2. Windows specialized digital portrait imaging software
3. Windows remote camera control software
4. Windows complete imaging software
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4. Engineering diagnostic and support software
Due to the long term relationship that exists between us and RX Technology
Europe Limited, the companies do not compete and share sales and marketing
information. There exists a territorial split that reflects the given
practicalities of supporting the installed base. We operate the North and South
American continents, and East Asia. RX Technology Europe Limited operates in
Europe, Africa, and the western part of Asia. When a sales opportunity arises in
the other company's territory that lead is passed to RX Technology Europe
Limited or to us, as the case may be.
OUR CREDIT AND FINANCING FACILITIES
We arranged a asset based line of credit in March 1999 with KBK
Financial Inc. Our credit line was initially approved in the amount of
$1,750,000 and is secured by a first priority security interest in our business
equipment located in the various locations where we maintain booths and
concessions. The unpaid balance of the credit facility as of April 1, 2000 was
$1,084,386. Terms of the line of credit require monthly payments of principal
and interest, which should fully amortize the loan in four years. The variable
rate of interest on the loan is currently at 12.25%. The KBK line of credit is
also collateralized by a first priority security interest on our present and
future inventory. Our chief executive officer, Mr. Gay, personally guaranteed
the loan.
LEGAL PROCEEDINGS
We do not have pending any litigation that, separately or in the aggregate,
if adversely determined, would have a material adverse effect on us or our
operations. We may, from time to time, be a party to litigation or
administrative proceedings that arise in the normal course of its business.
EMPLOYEES
We presently have 14 full-time employees, four of whom are employed at the
year-round locations; Legoland and Six Flags Magic Mountain. The others are
employed in the clerical, technical or miscellaneous positions. We also hire
seasonal employees to staff facilities we have in various Theme Park locations.
During the peak of our season, we have approximately 130 such part-time or
seasonal employees. None of these employees are covered by collective bargaining
agreements. Management believes we have maintained an excellent relationship
with all its employees.
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MANAGEMENT
EXECUTIVE OFFICERS, DIRECTORS AND OTHER KEY EMPLOYEES
The following table sets forth certain information regarding our executive
officers, directors and key employees as of April 24, 2000. Each director listed
below has been elected for a period of one year and thereafter serves until his
or her successor is duly elected by the stockholders and they qualify as a
director. Our officers and other key personnel serve at the discretion of the
board of directors.
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- -------- ------------------------------------------
<S> <C> <C>
Donald Rex Gay............................ 58 President, Chairman, Chief Executive
Officer and Director
Dr. Chris Marvell......................... 44 Chief Technology Officer and Director
Richard F. Govatski....................... 55 Director
Herbert G. Perkins........................ 42 Principal Accounting Officer
S. Beatriz Gay............................ 31 Secretary/Treasurer
</TABLE>
DONALD REX GAY, has been our president, chief executive officer and chairman
of the board since 1994. Mr. Gay founded our business when we were incorporated
in December 1993. Mr. Gay has been involved in the formation and growth of
several entrepreneurial ventures, including founding Amtronics, Inc., Metarie,
Louisiana in 1984 and serving as its president and chief executive officer until
1993, and Amtronics Enterprises, Ltd., Vancouver, B.C. in 1989. In 1980 Mr. Gay
founded Allied Health Services Personnel, Inc., a private medical staffing and
equipment company and served as its president until 1984. Since 1984, Mr. Gay
has been involved in the digital imaging design and manufacturing business. In
1980, Mr. Gay received a certificate licensing him as a certified nurse
anesthetist, from Charity Hospital School of Anesthesia where he attended from
1978 to 1980. From 1971 to 1974, Mr. Gay attended the Dallas County Community
College in Dallas, Texas where he earned his associate's degree in 1980 in
applied sciences--registered nursing. From 1964 to 1967, Mr. Gay attended the
Dallas Institute of Mortuary Science, receiving his diploma as a graduate
funeral director in 1967. From 1960 to 1964, Mr. Gay was in the U.S. Navy
Medical Corps School at the Balboa Navy Hospital located in San Diego,
California.
DR. CHRISTOPHER MARVELL, PH.D. has been one of our directors since
December 1998. From April 1994 to the present time, Dr. Marvell has been the
managing director of RX Technology Europe Limited located in Derbyshire, England
and is one of the original developers of our digital imaging photo systems.
Between October 1984 to March 1994, Dr. Marvell was the managing director of
Marvell Consultants Limited, Nottinghamshire, England. Between October 1983 and
October 1984, he served as a senior research officer with Memotech, Ltd.,
Witney, Oxfordshire. Prior to that time from October 1979 to October 1993,
Dr. Marvell was a project engineer, senior project engineer and project manager
with TecQuipment Consultans, Ltd. of Nottingham, England. Dr. Marvell obtained a
bachelor of science degree and a Ph.D. degree in electrical and electronic
engineering from the University of Nottingham, England in 1976 and 1979,
respectively. Dr. Marvell conducts ongoing research and development for RX
Technology, Inc. and RX Technology Europe Limited from his facilities in the
United Kingdom.
RICHARD F. GOVATSKI, is the president and chief executive officer of
NMXS.com, Inc., a public company that develops and markets products based on
internet technology based digital asset management software. Prior to founding
NMXAS.com, Inc., Mr. Govatski was the president of Media Publishing
Group, Inc., New York, New York, from July 1988 to June 1994. Mr. Govatski has
been instrumental in the formation and growth of other entrepreneurial
enterprises since 1982. Mr. Gavotaski received his bachelor of sciences degree
in communications from Butler University, Indianapolis, Indiana in 1968.
HERBERT G. PERKINS, is our principal accounting officer and is one of our
consultants. Mr. Perkins has over 18 years of accounting, banking and
information processing experience, and has been our accounting
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officers since December 1999. From August, 1993 until he became our consultant,
Mr. Perkins was an accountant with the firm of Wegmann-Dazet & Co., certified
public accountants in Metarie, Louisiana. There he planned and supervised audit
engagements for the firm's corporate clients. Mr. Perkins received his BBA
degree, magna cum laude, in accounting from Loyola University in New Orleans,
Louisiana in 1992.
S. BEATRIZ GAY, has served as our corporate secretary and administers our
policies, procedures, personnel management and sales accounting control since
January, 1996. Between August 1992 to July 1994, Ms. Gay was a legal secretary
at the New Orleans, Louisiana based law firm of Stone, Pigman. Ms. Gay reads,
writes and speaks fluently in Spanish and presently liaisons with our business
connections in Argentina, Mexico and other prospective Latin American countries.
Prior to that from 1989 to February 1992 Ms. Gay was manager for the Hotel Dieu
Hospital Cardiology Department Medical Offices. During this time Ms. Gay's
functions included that of office manager in addition to medical assistant and
technician. Ms. Gay received her training as a legal and medical secretary at
Coastal Training Institute, New Orleans, Louisiana from 1986 to 1987. She also
attended the Delgado Community College in New Orleans, Louisiana from 1994 to
1996 and studied general business courses.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
At present, we have not entered into any indemnification agreements with our
officers or directors. Our re-stated articles of incorporation dated March 4,
1997, provide a comprehensive indemnification provision that provides that we
shall indemnify, to the fullest extent under Nevada law, our directors and
officers against certain liabilities incurred with respect to their service in
such capabilities. In addition, our Re-stated Articles of Incorporation provide
that the personal liability of our directors, officers, and our stockholders for
monetary damages will be limited.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and our controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended and is, therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by us of
expenses incurred by our directors, officers or controlling persons in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
offered or sold, we will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933, as amended and will be
governed by the final adjudication of such case.
DIRECTOR'S COMPENSATION
Our directors who are also officers currently do not receive salaries or
fees for serving in their capacity as our directors. We presently have three
directors, one of which is also our chief executive officer. We plan to add one
or two independent directors to our board of directors during the 12 months
following the date of this prospectus. Independent directors will receive $1,000
for attendance at each meeting of our board of directors. We reimburse all
directors for any expense incurred in attending meetings of the board of
directors.
KEYMAN LIFE INSURANCE
We do not presently own life insurance covering the death of any officer,
director or key employee. We are planning to purchase such insurance in order to
provide adequate funding for our repurchase of shares of common stock from the
estate of our principal stockholder and chief executive officer, Mr. Gay as a
result of his death, and to provide us with capital to replace the loss of
Mr. Gay's services to us. We do
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not presently have such life insurance coverage, nor has Mr. Gay made an
application for such coverage. We can make no assurance if and when such life
insurance coverage will be obtained, and if available, whether the premiums
payable for coverage will be reasonable.
DIRECTORS' AND OFFICERS' INSURANCE
We do not presently maintain directors' and officers' liability insurance.
We can provide no assurance that we will be able to obtain such coverage in the
future, or, if such coverage is obtainable, the premiums will not be
prohibitive.
BOARD COMPOSITION
Our board of directors consists of three members who serve as directors for
one year terms or until their successors are duly elected and are qualified as
directors. Donald Rex Gay, our chief executive officer and a director is the
husband of our secretary/treasurer. Vacancies in the office of any director may
be filled by a majority of the directors then in office. At least one additional
independent director will be added to our board of directors and our independent
directors will serve as members of both committees.
Our president and chief executive officer is appointed by our board, and all
of our other executive officers are appointed by the president and chief
executive officer.
COMMITTEES OF THE BOARD
We plan to establish two standing committees of our board, an audit
committee and a compensation committee. Our audit committee will recommend to
our entire board of directors the independent public accountants to be engaged
by us, reviews the plan and scope of our annual audit, review our internal
controls and financial management policies with our independent public
accountants and reviews all related party transactions. The compensation
committee will review and recommend to our board, the compensation and benefits
to be paid to our officers and directors, administer our stock option plan,
approve the grant of options under the stock option plan and establish and
review general policies relating to compensation and benefits of our employees.
EXECUTIVE COMPENSATION
The following table sets forth the total compensation paid during our fiscal
year ended December 31, 1999 to our chief executive officer, Donald Rex Gay. No
other executive officer received a salary and bonus in excess of $100,000 in
this year.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL
COMPENSATION OTHER COMPENSATION
-------------------- ---------------------------
OTHER ANNUAL ALL OTHER
NAME AND POSITION SALARY($) BONUS($) COMPENSATION COMPENSATION
- ----------------- --------- -------- ------------ ------------
<S> <C> <C> <C> <C>
Donald Rex Gay chairman, president and chief
executive officer.............................. $96,000 -0- -0- -0-
</TABLE>
The aggregate compensation paid to all persons who served in the capacity as
an executive officer or director during the fiscal year ended December 31, 1999
(3 persons) was $137,139.
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<PAGE>
OPTIONS GRANTS DURING THE TWO YEARS
ENDED DECEMBER 31, 1999
<TABLE>
<CAPTION>
PERCENT OF TOTAL OPTIONS
--------------------------------------------------------------
NUMBER OF
SECURITIES
UNDERLYING OPTIONS
GRANTED
------------------- GRANTED TO
EMPLOYEES IN EXERCISE EXPIRATION
NAME 1998 1999 FISCAL YEAR 1999 PRICE DATE
- ---- -------- -------- ---------------- -------- ----------
<S> <C> <C> <C> <C> <C>
Donald Rex Gay............................. -0- -0- -0- -0- -0-
chairman, president and
chief executive officer
</TABLE>
The were no options granted to all persons who served in the capacity as an
executive officer or director during the fiscal year ended December 31, 1999 (3
persons). The above table does not include 2,959,836 options granted to Donald
Rex Gay at the time that our merger with Valley Excavation and Trucking, Inc.
was completed on February 16, 2000, which are now outstanding and exercisable to
purchase 2,959,836 shares of our common stock at $1.75 per share.
STOCK OPTION PLAN
On February 16, 2000, the board of directors adopted, with the approval of
the shareholders, a stock option plan, pursuant to which the board is authorized
to grant options to purchase up to 5,000,000 shares of our common stock to our
key employees, officers, directors, consultants and other agents and advisors.
Awards under the plan will consist of both qualified and non-qualified stock
options, restricted stock awards, deferred stock awards, stock appreciation
rights and other stock-based awards described in the plan.
The plan is administered by the board of directors which will determine the
persons to whom awards will be granted, the number of awards to be granted and
the specific terms of each grant, including the vesting thereof, subject to the
provisions of the plan. In connection with the qualified stock options to be
granted under the plan, the exercise price of each option may not be less than
100% of the fair market value of the common stock on the date of grant, or 110%
of the fair market value in the case of a grantee holding more than 10% of our
outstanding common stock. The aggregate fair market value of shares for which
qualified stock options granted under the plan are exercisable for the first
time by such a 10% or greater employee during any calendar year may not exceed
$100,000. Non-qualified stock options granted under the plan may be granted at a
price determined by the board of directors, not to be less than the fair market
value of the common stock on the date of grant.
The plan also contains certain change in control provisions which could
cause options and other awards to become immediately exercisable and
restrictions and deferral limitations applicable to other awards to lapse in the
event any person, as such term is defined in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, including a group as defined in Section 13(d),
but excluding certain of our stockholders, become the beneficial owners of more
than 25% of our outstanding common stock.
We granted 3,000,000 non-qualified common stock options entitling the former
stockholders of RX Technology, Inc. to purchase 3,000,000 shares of our common
stock at an exercise price of $1.75 per share. These options were granted on a
prorata basis with the number of shares of RX Technology, Inc. common stock held
by each shareholder at the time of the agreement and plan of reorganization
entered into with Valley Excavation and Trucking, Inc.
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In addition, and as a part of the agreement and plan of reorganization
consummated on February 16, 2000, we granted 1,000,000 non-qualified stock
options to existing stockholders of Valley Excavation and Trucking, Inc.,
exercisable to purchase 1,000,000 shares of our common stock at a price of $1.75
per share.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 78.75 of the Nevada Business Corporation Act provides the power to
indemnify any officer or director acting in his capacity as our representative
who was, is or is threatened to be made a party to any action or proceeding,
whether civil, criminal, administrative or investigative, for expenses,
judgments, penalties, fines and amounts paid in settlement in connection with
such action or proceeding. Generally, the only limitation on our ability to
indemnify our officers and directors is if they acted in good faith and in a
manner which they believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe their conduct was unlawful.
Our bylaws provide a right to indemnification to the full extent permitted
by law for expenses, attorney's fees, damages, punitive damages, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by any director or officer whether or not the indemnified liability arises or
arose from any threatened, pending or completed proceeding by or in our right by
reason of the fact that such director or officer is or was serving as our
director, officer or employee or, at our request, as a director, officer,
partner, fiduciary or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, unless the act or
failure to act giving rise to the claim for indemnification is finally
determined by a court to have constituted willful misconduct or recklessness.
Our bylaws provide for the advancement of expenses to an indemnified party upon
receipt of an undertaking by the party to repay those amounts if it is finally
determined that the indemnified party is not entitled to indemnification. Our
bylaws authorize us to take steps to ensure that all persons entitled to the
indemnification are properly indemnified, including, if the board of directors
so determines, purchasing and maintaining insurance.
LIMITATION OF LIABILITY
Our articles of incorporation provide that none of our directors or officers
shall be personally liable to us or our shareholders for monetary damages for a
breach of fiduciary duty as a director or officer, except for liability:
- for acts or omissions involving intentional misconduct, fraud or a knowing
violation of law; or
- for the payment of unlawful dividends prohibited by Nevada corporate law.
At present, there is no pending litigation or proceeding, and we are not
aware of any threatened litigation or proceeding, involving any director,
officer, employee or agent where indemnification will be required or permitted
under the articles of incorporation or our bylaws.
PRINCIPAL SHAREHOLDERS
The following table sets forth information with respect to beneficial
ownership of the our common stock as of the date of this prospectus by (i) each
person who beneficially owns more than 5% of the common stock; (ii) each of our
executive officers; (iii) each of our directors; and (iv) all executive officers
and directors as a group. The number of shares of common stock outstanding used
in calculating the percentage for each listed person includes the shares of
common stock underlying options or warrants held by such person that are
exercisable within 60 days, but excludes shares of common stock underlying
options
27
<PAGE>
or warrants held by any other person. Unless otherwise noted, each person has
the same address as our executive office.
<TABLE>
<CAPTION>
PERCENT BENEFICIALLY OWNED
NUMBER OF SHARES --------------------------------
BENEFICIALLY
NAME AND ADDRESS OF BENEFICIAL OWNER OWNED BEFORE OFFERING AFTER OFFERING
- ------------------------------------ ---------------- --------------- --------------
<S> <C> <C> <C>
Donald Rex Gay..................................... 8,166,892 66.5% 63.9%
RX Technology Europe Limited....................... 92,101 .07% .08%
Draycott Hall
Derwent Street
Draycott, Derbyshire, DE7 3NF,
United Kingdom
Richard Gavotski................................... -0- -0- -0-
Herbert G. Perkins................................. -0- -0- -0-
S. Beatriz Gay..................................... -0- -0- -0-
Total for all officers and Directors as a group (5
persons)......................................... 8,258,993 67.7% 64%
</TABLE>
- ------------------------
- Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission and generally includes voting or
investment power with respect to securities. Unless otherwise indicated,
the persons named in the table have sole voting and investment power with
respect to all shares beneficially owned, subject to applicable community
property laws.
- Includes 2,959,836 fully-vested non-qualified common stock options that
expire five years from the date of grant and that are exercisable at $1.75
per share, that were granted to Donald Rex Gay pursuant to our stock
option plan. Includes 274,056 warrants to be received by Mr. Gay on or
about May 1, 2000 as a part of our distribution of 501,493 warrants to our
existing stockholders of record, exercisable until December 31, 2001 at a
price of $6.00 per share.
- Includes 33,356 fully-vested non-qualified common stock options that
expire five years from the date of grant and that are exercisable at $1.75
per share, that were granted to RX Technology Europe Limited, a company
controlled by Dr. Chris Marvel, pursuant to our stock option plan.
Includes 3,092 warrants to be received by RX Technology Europe Limited on
or about May 1, 2000 as a part of our distribution of 501,493 warrants to
our existing stockholders of record, exercisable until December 31, 2001
at a price of $6.00 per share.
- S. Beatriz Gay is the wife of Donald Rex Gay.
CERTAIN TRANSACTIONS
In 1997 when we were formed, we sold 1,800,000 shares of our common stock
for total consideration of $9,000 to its founders, including Darold Moeller and
Lynn Dixon.
Prior to the agreement and plan of reorganization taking effect, we agreed
to dispose of our remaining assets previously used in our excavation, trucking
and snow removal business. These assets, consisting of four pieces of equipment,
were carried on our financial statements at $40,960 net of depreciation expense.
These assets were recently appraised at $26,000 and have been sold to Darold
Moeller, one of our founders, a former director and our former chief executive
officer. The $26,000 purchase price is to be paid by the assumption of an
outstanding lease with a $4,232 payoff due and a $21,768 promissory note issued
by Mr. Moeller which is due in six months and which bears interest at 6% per
year.
We purchase most, if not all, of our photo systems equipment from our sister
company RX Technology Europe Limited. One of the principal owners of RX
Technology Europe Limited is Dr. Chris Marvell, who
28
<PAGE>
is also one of our directors. An informal form of license agreement was entered
into between us and RX Technology Europe Limited on January 25, 2000. The terms
of that license agreement were negotiated at arm's length between RX Technology
Europe Limited and us. This agreement has a one-year term and provides for an
automatic renewal for an additional one-year term, but is subject to termination
in the event of the insolvency of either party, or if we do not pay the amounts
due to RX Technology Europe Limited for our equipment purchases when due.
In December 1999, we owed RX Technology Europe Limited $101,424 on equipment
purchases we made during that year. We agreed with RX Technology Europe Limited
to convert the balance of that amount due to 22,539 shares of our common stock
valued at $4.50 per share, which was what we believed to be the fair market
value of our common stock at that time.
DESCRIPTION OF SECURITIES
OUR COMMON STOCK
We are authorized to issue 50,000,000 shares of common stock. We now have
9,026,870 shares of common stock issued and outstanding.
Holders of our common stock are entitled to receive as, when and if declared
by the board of directors from time to time, such dividends and other
distributions in cash, stock or property from our assets or funds legally
available for such purposes, subject to any dividend preferences attributable to
any preferred stock that may be authorized. Holders of common stock are entitled
to one vote for each share held of record on all matters on which shareholders
may vote. There are no preemptive, conversion, redemption or sinking fund
provisions applicable to the common stock. All outstanding shares of common
stock are fully paid and non-assessable. In the event of our liquidation,
dissolution or winding up, holders of common stock are entitled to share ratably
in the assets available for distribution.
OUR PREFERRED STOCK
Pursuant to our articles of incorporation, we are authorized to issue
1,000,000 shares of "blank check" preferred stock, which may be issued from time
to time in one or more series upon authorization by our board of directors. The
board, without further approval of the stockholders, is authorized to fix the
dividend rights and terms, conversion rights, voting rights, redemption rights
and terms, liquidation preferences, and any other rights, preferences,
privileges and restrictions applicable to each series of the preferred stock.
The issuance of preferred stock, while providing flexibility in connection with
possible acquisitions and other corporate purposes could, among other things,
adversely affect the voting power of the holders of common stock and, in certain
circumstances, make it more difficult for a third party to gain control of us,
discourage bids for our outstanding common stock at a premium, or otherwise
adversely affect the price of our common stock. At present, we have issued no
shares of preferred stock outstanding.
OUTSTANDING OPTIONS
At the time that we acquired RX Technology, Inc. pursuant to the agreement
and plan of reorganization dated December 27, 1999, we agreed to issue at the
closing of the acquisition, 3,000,000 non-qualified common stock options that
are now outstanding and that are exercisable to purchase 3,000,000 shares of our
common stock at $1.75 per share. These options were issued to existing
stockholders of record of RX Technology, Inc. on February 16, 2000, which is the
date that the acquisition was effective. In addition, and as a part of the
agreement and plan of reorganization, we issued 1,000,000 non-qualified common
stock options that are now outstanding and that are exercisable to purchase
1,000,000 shares of our common stock at $1.75 per share.
On May 1, 1999, RX Technology, Inc. granted to Capstone Partners, L.C. of
Atlanta, Georgia, an NASD-member broker dealer, 246,653 options to purchase
246,653 shares of our common stock at an
29
<PAGE>
adjusted exercise price of $.81 per share. These options expire May 1, 2002 and
are now outstanding. The shares of common stock underlying these options are
being registered for issuance and resale in this registration statement.
Our outstanding options contain anti-dilution provisions with respect to the
occurrence of certain events, such as stock splits or stock dividends. The
anti-dilution provisions do not apply in the event of a merger or acquisition.
In the event of a liquidation, dissolution or winding-up of our company, holders
will not be entitled to participate in our assets. Holders of our options have
no voting, preemptive, liquidation or other rights of a stockholder, and no
dividends may be declared on the options.
The options granted to Capstone Partners, L.C. may be exercised by
surrendering the option certificate evidencing the options to be exercised, with
the exercise form included therein duly completed and executed, and paying to us
the exercise price per share in cash or check. The Capstone Partners, L.C.
options also include a cashless exercise provision allowing the exercise of the
options by delivery to us of a certain number of shares of our common stock
rather than cash or a check.
REGISTRATION RIGHTS
We previously granted registration rights covering the 246,653 shares of
common stock underlying the 246,653 options granted to Capstone Partners, L.C.
The holders of these options have a right to the registration of the underlying
common stock in the event of an underwritten public offering of our securities.
These registration rights provide that we will pay all of the expenses
associated with the registration of the underlying shares of common stock,
except that each holder of the options shall pay a prorata share of the holders'
expenses that relates to the registration, offer and sale of the common stock.
Registration of shares of our common stock pursuant to the exercise of
registration rights under the Securities Act would result in such shares
becoming freely tradable without restriction under the Securities Act
immediately upon the effectiveness of such registration.
THE WARRANTS
We have declared a distribution of 501,493 common stock purchase warrants to
shareholders of record as of May 1, 2000. The warrants are exercisable at $6.00
per share, prior to December 31, 2001, subject to effectiveness of registration
of the warrants and underlying shares.
- We may redeem all or a portion of the warrants, at $.01 per warrant, at
any time upon 30 day's written notice to the warrant holders. The warrants
may be redeemed whether or not a current registration statement is in
effect with respect thereto. Any warrant holder who does not exercise his
warrants prior to the redemption date, as set forth on our notice of
redemption, will forfeit his right to purchase the shares of common stock
underlying such warrants, and after such redemption date any outstanding
warrants referred to in such notice will become void and be canceled. If
we do not redeem the warrants, they will expire at the conclusion of the
exercise period unless we extended the exercise date.
- We may at any time, and from time to time, extend the exercise period of
the warrants provided that written notice of such extension is given to
the warrant holders prior to the expiration date thereof. Also, we may, at
any time, reduce the exercise price thereof by written notification to the
holders thereof. We do not presently contemplate any extensions of the
exercise period or reduction in the exercise price of the warrants.
- The warrants contain anti-dilution provisions with respect to the
occurrence of certain events, such as stock splits or stock dividends. The
anti-dilution provisions do not apply in the event of a merger or
acquisition. In the event of liquidation, dissolution or winding-up of our
company, warrant holders will not be entitled to participate in our
assets. Warrant holders have no voting, preemptive, liquidation or other
rights of a our stockholders, and no dividends may be declared on the
warrants.
30
<PAGE>
- The warrants may be exercised by surrendering to us, a warrant certificate
evidencing the warrants to be exercised, with the exercise form included
therein duly completed and executed, and paying to us the exercise price
per share in cash or check payable to us. Stock certificates will be
issued as soon thereafter as practicable.
- The warrants will not be exercisable unless the warrants and the shares of
common stock underlying the warrants are registered or otherwise qualified
in applicable jurisdictions.
- The warrants are nontransferable by their terms, cannot be transferred
without our consent and will be "restricted securities" pursuant to the
definition of that term used in Rule 144. The warrants will be stamped
with a restrictive legend.
SHARES ELIGIBLE FOR FUTURE SALE
Of the 9,026,870 shares of our common stock outstanding prior to the
exercise of any warrants, 7,000,000 shares are currently freely tradable under
Rule 144 of the Securities Act. Of this number of shares of common stock,
4,988,653 are held by our officers and directors. In addition, the 501,493
shares of common stock underlying the warrants will also be freely tradable into
the public market immediately upon issuance. Sales of substantial amounts of
this common stock in the public market could adversely affect the market price
of the common stock. Furthermore, all of the remaining shares of common stock
presently outstanding are restricted and/or affiliate securities that are not
presently, but may in the future be sold, pursuant to Rule 144, into any public
market that may exist for the common stock. Future sales by current stockholders
could depress the market prices of the common stock in any such market.
In general, under Rule 144 as currently in effect, a person (or group of
persons whose shares are aggregated), including our affiliates, can sell within
any three-month period, an amount of restricted securities that does not exceed
the greater of 1% of the total number of outstanding shares of the same class,
or (if the common stock becomes quoted on a stock exchange), the reported
average weekly trading volume during the four calendar weeks preceding the sale;
provided, that at least one year has elapsed since the restricted securities
being sold were acquired from us or any of our affiliates, and provided further
that certain other conditions are also satisfied. If at least two years have
elapsed since the restricted securities were acquired from us or our affiliates,
a person who has not been an affiliate of ours for at least three months can
sell restricted shares under Rule 144 without regard to any limitations on the
amount.
PLAN OF DISTRIBUTION
This prospectus and the registration statement of which it is part relate to
the offer and sale of 501,493 shares of our common stock issuable upon the
exercise of the warrants at an exercise price of $6.00 per share. The warrants
will be distributed as a dividend with respect to the common stock to
stockholders of record as of May 1, 2000. The warrants are exercisable until
December 31, 2001, provided this prospectus is still current or has been
updated.
We will manage this offering without an underwriter, and the shares of our
common stock will be offered and sold by us, without any discount, sales
commissions or other compensation being paid to anyone in connection with the
offering. In connection therewith, we will pay the costs of preparing, mailing
and distributing this prospectus to the holders of the warrants. Brokers,
nominees, fiduciaries and other custodians will be requested to forward copies
of this prospectus to the beneficial owners of securities held of record by
them, and such custodians will be reimbursed for their expenses.
There is no assurance that all or any shares of our common stock underlying
the warrants will be sold, nor any requirement, or escrow provisions to assure
that, any minimum amount of warrants will be exercised. All funds received upon
the exercise of any warrants will be immediately available to us for our use.
31
<PAGE>
WARRANT EXERCISE PROCEDURES
The warrants may be exercised in whole or in part by presentation of the
warrant certificate, with the purchase form on the reverse side thereof filled
out and signed at the bottom thereof, together with payment of the exercise
price and any applicable taxes at the principal office of Interwest Stock
Transfer Co., 1981 East 4800 South, Suite 100, Salt Lake City, Utah 84117.
Payment of the exercise price shall be made in lawful money of the United States
of America in cash or by cashier's or certified check payable to the order of RX
Technology Holdings, Inc. Warrant Exercise Account.
All holders of warrants will be given an independent right to exercise their
purchase rights. If, as and when properly completed and duly executed notices of
exercise are received by our transfer agent or warrant agent, together with the
certificates being surrendered and full payment of the exercise price in cleared
funds, the checks or other funds will be delivered to us and the transfer agent
or warrant agent will promptly issue certificates for the underlying shares of
common stock. It is presently estimated that certificates for the shares of
common stock will be available for delivery in Salt Lake City, Utah at the close
of business on the 10th business day after the receipt of all required documents
and funds.
TRANSFER AGENT
The transfer agent for our common stock and warrant agent for the common
stock purchase warrants is Interwest Transfer Co., Inc., Salt Lake City, Utah.
MARKET FOR COMMON STOCK
The following table sets forth the high and low bid prices for shares of our
common stock for the periods noted, as reported by the NASD's Electronic
Bulletin Board. Quotations reflect the inter-dealer prices, without retail
mark-up, mark-down or commission and may not represent actual transactions. On
February 17, 2000, our common stock began price quotations, a result of our
agreement and plan of reorganization entered into with Valley Excavation and
Trucking, Inc., under the symbols "RXTXE." Since February 17, 2000, recent bid
and ask quotations for our common stock are as follows:
<TABLE>
<CAPTION>
BID PRICES
-------------------
YEAR PERIOD HIGH LOW
- ---- ------ -------- --------
<S> <C> <C> <C>
2000 February 2000............................................... $4.125 $4.02
March 2000.................................................. $4.25 $4.12
April 2000.................................................. $3.35 $2.69
</TABLE>
Pursuant to NASD Eligibility Rule 6530, issued on January 4, 1999, issuers
who do not make current filings pursuant to Sections 13 and 15(d) of the
Securities Act of 1934 are ineligible for listing on the Over-the-Counter
Electronic Bulletin Board. Pursuant to the rule, issuers who are not current
with such filings are subject to delisting pursuant to a phase-in schedule
depending on each issuer's trading symbol as reported on January 4, 1999. For
purposes of delisting our common stock, our trading symbol is RXTX. Therefore,
pursuant to the phase-in schedule, we are subject to delisting on May 7, 2000.
On April 7, 2000, the Over-the-Counter Electronic Bulletin Board changed our
symbol to RXTXE reflecting our delisting date 30 days later.
We are not currently in compliance with the rule, and in the past, we have
not made any filings pursuant to Sections 13 and 15(d) of the Securities Act of
1934. We have filed this registration statement on Form SB-2 in order to
register the shares of our common stock that underlie the 501,493 warrants being
distributed to our stockholders of record as of May 1, 2000, and if declared
effective by the Securities and Exchange Commission, we will thereafter be a
reporting company and, assuming we file all periodic reports required by
Sections 13 and 15(d) of the Securities and Exchange Act of 1934, we will be in
compliance with the rule. If we are not in compliance with the rule before our
delisting date, we will not be eligible for price quotations on the
Over-the-Counter Bulletin Board until this registration statement
32
<PAGE>
becomes effective on order of the Securities and Exchange Commission and we
otherwise satisfy the eligibility rule to be reinstated on the Over-the-Counter
Bulletin Board.
EXPERTS
Our financial statements as of December 31, 1999 and for the two year period
ended December 31, 1999, included in this prospectus have been so included in
reliance on the report of Wegmann-Dazet & Co., certified public accountants, a
professional corporation, Metarie, Louisiana, independent auditors, given on the
authority of such firm as experts in accounting and auditing.
The financial statements as of December 31, 1999 and for the two year period
ended December 31, 1999, included in this prospectus on behalf of Valley
Excavation and Trucking, Inc. have been so included in reliance on the report of
Pritchett, Siler & Hardy, P.C, of Salt Lake City, Utah, independent certified
public accountants, given on the authority of such firm as experts in accounting
and auditing.
LEGAL MATTERS
The validity of the common stock offered by this prospectus will be passed
upon for us by Gregory Bartko, Esq. of Atlanta, Georgia.
ADDITIONAL INFORMATION
This prospectus constitutes a part of a registration statement on Form SB-2
filed by us with the Commission under the Securities Act with respect to the
securities offered in this prospectus. This prospectus does not contain all the
information which is in the registration statement. Certain parts of the
registration statement are omitted as allowed by the rules and regulations of
the Commission. We refer to the registration statement and to the exhibits to
such registration statement for further information with respect to us and the
securities offered in this prospectus. Copies of the registration statement and
the exhibits to such registration statement are on file at the offices of the
Commission and may be obtained upon payment of the prescribed fee or may be
examined without charge at the public reference facilities of the Commission
described below. Statements contained in this prospectus concerning the
provisions of documents are necessarily summaries of the material provisions of
such documents, and each statement is qualified in its entirety by reference to
the copy of the applicable document filed with the Commission.
After the effective date of this registration statement, we will file
annual, quarterly and special reports and other information with the Commission.
Such reports and information can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street N.W., Washington, D.C. 20549 and at its regional offices located at 7
World Trade Center, New York, New York 10048 and Northwest Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained from the Public Reference Section of the Commission,
Room 1024, Judiciary Plaza, 450 Fifth Street N.W., Washington, D.C. 20549 at
prescribed rates. Our common stock is quoted on the Over-the-Counter Electronic
Bulletin Board maintained by the NASD under the symbol "RXTXE." The Commission
maintains a website that will contain all information filed electronically by
us. The address of the Commission's website is (www.sec.gov.).
33
<PAGE>
RX TECHNOLOGY, INC.
CONTENTS
<TABLE>
<CAPTION>
PAGES
----------------
<S> <C>
Independent Auditors' Report................................ F-2
Financial Statements
Balance Sheet............................................. F-3
Statements of Operations.................................. F-4
Statements of Changes in Stockholders' Equity............. F-5
Statements of Cash Flows.................................. F-6
Notes to Financial Statements............................. F-7-F-13
</TABLE>
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Shareholders of
RX Technology, Inc.
We have audited the accompanying balance sheet of RX Technology, Inc. as of
December 31, 1999, and the related statements of operations and stockholders(1)
equity and cash flows for each of the two years in the period ended
December 31, 1999. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of RX Technology, Inc. as of
December 31, 1999, and the results of its operations and its cash flows for each
of the two years in the period ended December 31, 1999, in conformity with
generally accepted accounting principles.
WEGMANN-DAZET & CO. APC
Metairie, Louisiana
January 13, 2000
F-2
<PAGE>
RX TECHNOLOGY, INC.
BALANCE SHEET
DECEMBER 31, 1999
<TABLE>
<CAPTION>
1999
----------
<S> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents................................. $ 109,958
Accounts receivable, trade, less allowance for doubtful
accounts of $2,500 in 1999 286,750
Inventory................................................. 190,055
----------
Total Current Assets.................................... 586,763
Property and equipment, at cost, less accumulated
depreciation of $664,512.................................. 2,538,168
Due from shareholder........................................ 11,341
Other assets................................................ 25,981
----------
TOTAL ASSETS................................................ $3,162,253
==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Notes payable............................................. $1,784,366
Advance from Valley Excavation & Trucking, Inc............ 395,000
Line of credit............................................ 48,547
Current portion of long-term debt......................... 40,225
Accounts payable.......................................... 484,333
Accrued expenses.......................................... 185,227
Deferred revenue.......................................... 50,000
----------
Total Current Liabilities............................... 2,987,698
Long-term debt, less current portion........................ 47,846
Deferred income taxes....................................... 93,063
----------
TOTAL LIABILITIES....................................... 3,128,607
----------
STOCKHOLDERS' EQUITY
Common stock, .001 per share par value, 20,000,000 shares
authorized, 2,027,139 shares issued and outstanding..... 2,027
Preferred stock, .001 per share par value, 5,000,000
shares authorized, no shares issued and outstanding..... --
Additional paid-in capital.................................. 719,727
Retained (deficit).......................................... (688,108)
----------
TOTAL STOCKHOLDERS' EQUITY.............................. 33,646
----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY.............. $3,162,253
==========
</TABLE>
See accompanying Notes to Financial Statements.
F-3
<PAGE>
RX TECHNOLOGY, INC.
STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1999 AND 1998
<TABLE>
<CAPTION>
1999 1998
----------- -----------
<S> <C> <C>
Revenues.................................................... $ 6,028,397 $ 4,332,411
Cost of Revenues............................................ 3,049,454 2,182,860
----------- -----------
Gross Profit............................................ 2,978,943 2,149,551
----------- -----------
Operating Expenses
Photo Sales Expense....................................... 1,490,270 1,035,576
General and Administrative expenses....................... 1,716,900 940,897
----------- -----------
Total Operating Expenses.............................. 3,207,170 1,976,473
----------- -----------
Net Operating (Loss) Income............................. (228,227) 173,078
----------- -----------
Other Income (Expense)
Interest Income........................................... 425 --
Interest Expense.......................................... (445,774) (143,650)
Financing Fee............................................. (150,000) --
Other..................................................... 230 552
----------- -----------
Other Income (Expense), Net............................. (595,119) (143,098)
----------- -----------
(Loss) Income Before Income Taxes........................... (823,346) 29,980
Income tax expense........................................ -- (16,431)
----------- -----------
Net (Loss)Income............................................ $ (823,346) $ 13,549
=========== ===========
</TABLE>
See accompanying Notes to Financial Statements.
F-4
<PAGE>
RX TECHNOLOGY, INC.
STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1999 AND 1998
<TABLE>
<CAPTION>
ADDITIONAL
COMMON PAID-IN RETAINED
STOCK CAPITAL EARNINGS TOTAL
-------- ---------- --------- --------
<S> <C> <C> <C> <C>
Balance at December 31, 1997......................... $2,000 $373,046 $ 121,689 $496,735
Net income......................................... -- -- 13,549 13,549
------ -------- --------- --------
Balance at December 31, 1998......................... 2,000 373,046 135,238 510,284
Forgiveness of related-party debt.................. -- 95,279 -- 95,279
Net loss........................................... -- -- (823,346) (823,346)
Stock issued for cash--4,600 shares................ 5 -- -- 5
Stock warrants issued for 222,733 shares of common
stock............................................ -- 150,000 -- 150,000
Conversion of debt for 22,539 shares of stock...... 22 101,402 -- 101,424
------ -------- --------- --------
Balance at December 31, 1999......................... $2,027 $719,727 $(688,108) $ 33,646
====== ======== ========= ========
</TABLE>
See accompanying Notes to Financial Statements.
F-5
<PAGE>
RX TECHNOLOGY, INC.
STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1999 AND 1998
<TABLE>
<CAPTION>
1999 1998
---------- ----------
<S> <C> <C>
Cash flows from operating activities:
Net (loss) income........................................... $ (823,346) $ 13,549
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Depreciation............................................ 386,443 212,145
Increase in provision for bad debts..................... 1,354 1,146
Deferred taxes.......................................... -- 16,431
Issuance of stock warrants.............................. 150,000 --
(Increase) decrease in operating assets:
Accounts receivable, trade.............................. (215,823) (39,397)
Inventory............................................... (190,055) 451,700
Prepaid expenses........................................ 27,724 (27,724)
Other assets............................................ (16,311) (8,420)
Increase (decrease) in operating liabilities:
Accounts payable........................................ (191,713) 280,533
Accrued expenses........................................ 69,445 133,319
Due to related-parties.................................. 38,934 157,769
Deferred revenue........................................ 50,000 --
---------- ----------
Net Cash (Used) Provided by Operating Activities............ (713,348) 1,191,051
---------- ----------
Cash Flows From Investing Activities:
Acquisitions of property and equipment.................. (800,508) (1,601,186)
---------- ----------
Net Cash (Used) by Investing Activities..................... (800,508) (1,601,186)
---------- ----------
Cash Flows From Financing Activities:
Advances on short-term notes payable.................... 2,327,683 631,912
Repayments on short-term notes payable.................. (1,181,237) --
Advances on line of credit.............................. 15,400 44,082
Repayments on line of credit............................ (10,935) --
Repayments on long-term notes payable................... (33,840) (134,347)
Advance from Valley Excavation & Trucking, Inc.......... 395,000 --
Due from shareholder.................................... 18,046 (42,265)
---------- ----------
Net Cash Provided by Financing Activities................... 1,530,117 499,382
---------- ----------
Net Increase in Cash and cash equivalents............... 16,261 89,247
Cash and cash equivalents at Beginning of the Year...... 93,697 4,450
---------- ----------
Cash and cash equivalents at the end of the year...... $ 109,958 $ 93,697
========== ==========
</TABLE>
See accompanying Notes to Financial Statements.
F-6
<PAGE>
RX TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1999 AND 1998
1) NATURE OF THE COMPANY
RX Technology, Inc. (the Company), a Nevada corporation, is an international
company that markets and services digital image processing equipment and
specializes in the electronic capture, presentation and sale of pictures of
guests on amusement park ride attractions. The Company currently operates in the
United States of America and in Argentina.
2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The significant accounting policies followed by the Company are summarized
as follows:
(a) DEPRECIATION
For financial statement purposes the straight-line method is used to
determine depreciation. Depreciation is taken over the following useful lives
for financial reporting purposes:
<TABLE>
<S> <C>
Buildings................................................... 7-15 years
Park equipment.............................................. 7-10 years
Computers................................................... 7 years
</TABLE>
(b) INCOME TAXES
Income taxes are provided for the tax effects of transactions reported in
the financial statements and consist of taxes currently due plus deferred taxes.
The deferred tax assets and liabilities represent the future tax return
consequences of those differences, which will either be taxable or deductible
when the assets and liabilities are recovered or settled.
(c) ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
(d) INVENTORY
Inventory is stated at the lower of cost or market. Cost is determined
principally on the average cost method. The inventory consists of finished goods
and supplies.
(e) REVENUE RECOGNIZATION
The Company recognizes revenues from the sale of pictures as the pictures
are sold to the customers. Revenues on the sale of product are recognized when
shipped to the customer. Approximately 82% of the revenues are from the sale of
pictures and 18% from the sale of product.
The Company furnishes and installs photosystem equipment to numerous
amusement parks worldwide. The Company and the amusement parks share the
revenues generated. The Company's percentage of revenue varies from 40% to 70%,
depending on the agreement with the amusement park.
F-7
<PAGE>
RX TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1999 AND 1998
3) FINANCIAL INSTRUMENTS
Estimated fair values of the Company's financial instruments (all of which
are held for nontrading purposes) are as follows:
<TABLE>
<CAPTION>
1999
-----------------------
CARRYING FAIR
AMOUNT VALUE
---------- ----------
<S> <C> <C>
Assets:
Cash and cash equivalents.......................... $ 109,958 $ 109,958
Accounts receivable................................ 286,750 286,750
Due from shareholder............................... 11,341 11,341
Liabilities:
Short-term and long-term debt...................... $3,035,544 $3,035,544
</TABLE>
Fair values were determined as follows:
The carrying amounts of cash and cash equivalents, receivables, accounts
payable and accrued expenses, deferred income, short-term debt and current
installments of long-term debt approximate fair value because of the short-term
maturity of these instruments.
The fair value estimates of long-term debt were based upon quotes from major
financial institutions taking into consideration current rates offered to the
Company for debt of the same remaining maturities.
4) CASH AND CASH EQUIVALENTS
Cash and cash equivalents include approximately $80,465 held in
interest-bearing money market funds at December 31, 1999. Interest earned on
investments in money market funds varies in accordance with market rates of
interest. The Company maintains fluctuating cash balances with financial
institutions in excess of insured levels.
The Company considers money market funds and certificates of deposit with
maturities of 90 days or less to be cash equivalents.
5) PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
<TABLE>
<CAPTION>
1999
----------
<S> <C>
Buildings................................................... $ 229,767
Park equipment.............................................. 2,937,262
Computers................................................... 35,651
----------
3,202,680
Less accumulated depreciation............................... (664,512)
----------
$2,538,168
==========
</TABLE>
F-8
<PAGE>
RX TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1999 AND 1998
6) INCOME TAXES
The provision for income taxes consists of the following:
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Current taxes:
Deferred tax expense.................................... $ -- $16,431
======= =======
</TABLE>
Temporary differences giving rise to the deferred tax assets and liabilities
are due to the reporting of certain items differently for tax and financial
reporting purposes. The items consist primarily of depreciation, amortization,
allowance for doubtful accounts, and net operating loss carryforwards. At
December 31, 1999, the Company recorded a valuation allowance of $266,730 on the
deferred tax assets.
The following is a reconciliation of income tax benefit (expense) at the
federal statutory rate to the provision for income taxes.
<TABLE>
<CAPTION>
1999 1998
--------- --------
<S> <C> <C>
Tax at statutory rate of 34%........................... $ 279,938 $(10,193)
Valuation allowance.................................... (266,730) --
Other.................................................. (13,208) (6,238)
--------- --------
$ 0 $(16,431)
========= ========
</TABLE>
The following is a summary of the significant components of deferred tax
assets and liabilities as of December 31, 1999:
<TABLE>
<S> <C>
Deferred tax assets......................................... $ 266,730
Less: valuation allowance................................... (266,730)
---------
Net deferred tax assets..................................... --
Deferred tax liability...................................... 93,063
---------
Net deferred tax liability.................................. $ 93,063
=========
</TABLE>
The Company has net operating loss carryforwards available to offset future
income which expire as follows:
<TABLE>
<CAPTION>
NET OPERATING
YEAR ENDING DECEMBER 31 LOSS
- ----------------------- -------------
<S> <C>
2018........................................................ $ 24,009
2019........................................................ 872,087
</TABLE>
F-9
<PAGE>
RX TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1999 AND 1998
7) LINE OF CREDIT
<TABLE>
<S> <C>
The Company has a $50,000 revolving line of credit with a
bank, with interest at a variable rate. At December 31,
1999, the rate was 10.25%. Interest is payable monthly, and
the line is unsecured....................................... $48,547
=======
</TABLE>
8) NOTES PAYABLE
<TABLE>
<S> <C>
On April 1, 1999, the Company entered into a finance
transaction with Banc One Capital BIDCO-1998, LLC ("Banc
One") that provided $500,000 to the Company for equipment
financing purposes. The note is a senior subordinated
promissory note due on April 15, 2000 with interest
accruing thereon at the rate of 21% per year. The Company's
chief executive officer and majority stockholder personally
guaranteed the repayment of the principal and interest under
the note. In addition, the majority stockholder has executed
a stock pledge agreement dated April 1, 1999, agreeing to
pledge his 2,000,000 shares of the Company's common stock as
additional security for the repayment of the promissory
note. The note is secured by certain assets of the
Company..................................................... $ 500,000
Note payable to a finance company dated March 26, 1999, with
monthly payments of $82,175 including interest at a variable
rate. The rate at December 31, 1999 was 12.5%. The note is
secured by all accounts, inventory and equipment and the
personal guarantee of the majority stockholder. The note
matures on April 15, 2000. The maximum amount available
under the agreement is $1,750,000........................... 1,133,549
Note payable to a vendor dated July 20, 1999, with monthly
payments of $10,000 including 10% interest until the balance
is paid in full. The note is unsecured...................... 84,623
Note payable to a vendor dated March 31, 1999, with monthly
payments of $10,000 including 10% interest until the balance
is paid in full. The note is unsecured...................... 66,194
-----------
$ 1,784,366
===========
</TABLE>
9) LONG-TERM DEBT
<TABLE>
<S> <C>
Note payable to a finance company dated May 8, 1997, with
monthly installments of $1,033 including interest at 12%.
The note matures on May 8, 2002. This note is collateralized
by park equipment purchased through this note............... $25,123
Note payable to a finance company dated June 9, 1997, with
monthly installments of $1,001 including interest of 12%.
The note matures on June 9, 2002. This nots is
collateralized by park equipment purchased through this
note........................................................ 25,096
Note payable with a finance company dated August 15, 1997,
with monthly installments of $1,036 including interest of
18.44%. The note matures on July 15, 2002. This note is
collateralized by park equipment purchased through this
note........................................................ 25,397
Note payable with a finance company dated December 15, 1997,
with monthly installments of $1,187 including interest of
25.58%. The note matures on October 15, 2000. The note is
collateralized by park equipment and computer equipment
purchased through this note................................. 12,455
-------
88,071
Less current portion...................................... (40,225)
-------
$47,846
=======
</TABLE>
F-10
<PAGE>
RX TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1999 AND 1998
9) LONG-TERM DEBT (CONTINUED)
Maturities of long-term debt are as follows:
<TABLE>
<S> <C>
Year ending December 31, 2000............................... $40,225
2001................................. 32,029
2002................................. 15,817
</TABLE>
10) CONTINGENCIES
The Company is a defendant in a civil action in which an individual asserts
that the Company breached a contract. The claim is for $47,500. The Company
intends to vigorously defend this action. The ultimate resolution of this matter
is not ascertainable at this time. No provision has been made in the financial
statements related to this claim.
11) RELATIONSHIP WITH RX TECHNOLOGY LIMITED, EUROPE
RX Technology Limited, Europe is the exclusive supplier of custom designed
electronic hardware and software for RX Technology, Inc. RX Technology Limited,
Europe is the inventor of these items and continually performs research and
development to enhance, update and expand the functionality of these items.
The relationship between RX Technology Limited, Europe and RX Technology,
Inc. comes down to a personal relationship between the owners of both companies.
RX Technology Limited, Europe will investigate new developments in the field
of digital photography and design custom hardware and software to exploit these
new developments. RX Technology, Inc. will then be kept fully informed of these
developments and freely offered them. RX Technology Limited, Europe will charge
RX Technology, Inc. their own cost plus a mark-up to cover the test, supply and
support of the items under warranty (for the Hardware Items). The Software will
be supplied "as is" to RX Technology, Inc., without any charge, to be used by RX
Technology, Inc.
RX Technology, Inc., on encountering an application or opportunity, may
request that RX Technology Limited, Europe develops specific hardware and
software to meet these requirements. RX Technology Limited, Europe is committed
(within reason and time constraints) to comply with these requests and will
perform the necessary research and development at its own expense. Naturally,
both RX Technology Limited, Europe and RX Technology, Inc. will then mutually
benefit from the new development.
In summary, RX Technology Limited, Europe acts as the research and
development vendor of RX Technology, Inc. Intellectual property in the software
and hardware developed remains with RX Technology Limited, Europe, but RX
Technology, Inc. is free to use the developments in any way it sees fit.
In 1999, a loan in the amount of $101,424 to the Company from RX Technology
Limited, Europe was converted to equity through the issuance of 22,539 shares of
common stock at $4.50 per share.
12) CONCENTRATION OF CREDIT RISK
Financial instruments that potentially subject the Company to concentrations
of credit risk consist of trade accounts receivable. The Company grants credit,
which is unsecured, to customers all of whom are involved in the amusement park
industry.
F-11
<PAGE>
RX TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1999 AND 1998
13) SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Interest paid for December 31, 1999 and 1998, was $343,262 and $143,650,
respectively.
Noncash investing and financing activities:
<TABLE>
<CAPTION>
1998
--------
<S> <C>
Acquisition of computer equipment with debt................. $30,882
=======
</TABLE>
14) SUBSEQUENT EVENT
On December 7, 1999, the Company entered into an Agreement and Plan of
Reorganization (the "Agreement") with Valley Excavation and Trucking, Inc., a
Nevada corporation ("Valley"), that is listed for price quotations on the
NASD(1)s Over-the-Counter Electronic Bulletin Board ("OTCBB") under the symbols
"VETI." The Agreement contemplates that all of the outstanding shares of common
stock of the Company will be exchanged at closing for a certain number of shares
of the common stock of Valley. As of the closing date of the Agreement, the
2,027,139 shares of the Company's outstanding common stock will be exchanged for
5,000,000 shares of Valley common stock. In addition, and as an additional term
of the Agreement, the shareholders of the Company on the date of the closing,
will be granted an option on a prorata basis to their current ownership, to
purchase 3,000,000 additional shares of the Company(1)s common stock at an
exercise price of $1.75 per share. Also, options to purchase up to 1,000,000
shares of Valley at $1.75 per share will be made available for grants to
employees of the Company under an employee stock option plan to be approved by
the directors of the Company.
The closing of the transactions contemplated by the Agreement are subject to
several conditions. The most important of these conditions is that Valley shall
first have completed a Regulation D, Rule 506 offering of its common stock
structured to offer 1,830,000 shares of its common stock at an offering price of
$1.75 per share for an aggregate offering amount of $3,202,500. The Company has
already received $395,000 in loans which are expected to be converted to equity
in the purchase of shares in the private offering. If these debt holders convert
to stock they will do so at $1.50 per share and will receive 333,333 shares.
This would increase the maximum number of shares sold in Valley's Regulation D
offering to 1,877,619.
At the closing of the transactions contemplated by the Agreement, existing
management of Valley will resign as such and the existing management of the
Company will become the officers and directors of Valley. After the closing, the
Company intends to forthwith prepare and file a Form SB-2 registration statement
with the United States Securities and Exchange Commission ("SEC") in order to
become a fully reporting company as required for eligibility to continue price
quotations on the OTCBB.
The parties to the Agreement expect the transactions to close not later than
February 16, 2000.
15) RELATED-PARTY TRANSACTIONS
The Company had a related-party debt owed to Phototech which has been
forgiven. Total debt forgiven at December 31, 1999, was $95,279 and has been
recorded as additional paid-in capital.
F-12
<PAGE>
RX TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1999 AND 1998
16) FOREIGN OPERATIONS
The Company operates in Argentina. The net book value of the assets in
Argentina at December 31, 1999, was $126,000. The equipment in Argentina
contributed $197,600 of the total operating revenues of the Company for the year
ended December 31, 1999.
17) WARRANTS
The Company granted certain common stock purchase warrants associated with a
$500,000 note dated April 1, 1999. The warrants allow the holder to purchase
222,733 shares of the Company's common stock for $50. The warrants expire at the
earliest of (a) the occurrence of a public offering, (b) ten (10) years after
the closing date or (c) six (6) years after repayment of the debt. The warrants
have put rights at any time after five (5) years of closing date. The estimated
fair value of these warrants at the date issued was $150,000.
The Company also granted a five-year option to a consultant on May 1, 1999,
to purchase 100,000 shares of the Company's common stock at an exercise price of
$2.00 per share. The estimated fair value of these options at the date issued
was less than the exercise price.
F-13
<PAGE>
RX TECHNOLOGY HOLDINGS, INC.
(FORMERLY VALLEY EXCAVATION AND TRUCKING, INC.)
(A NEVADA CORPORATION)
RX TECHNOLOGY, INC.
(A NEVADA CORPORATION)
PROFORMA COMBINED BALANCE SHEET AND INCOME STATEMENTS
(UNAUDITED)
F-14
<PAGE>
RX TECHNOLOGY HOLDINGS, INC.
(FORMERLY VALLEY EXCAVATION AND TRUCKING, INC.)
RX TECHNOLOGY, INC.
PROFORMA COMBINED BALANCE SHEET AND INCOME STATEMENTS
(UNAUDITED)
The following unaudited proforma combined balance sheet and statement of income
aggregates the balance sheet and statement of operations of RX Technology
Holdings, Inc. formerly Valley Excavation and Trucking, Inc. (Parent) (A Nevada
Corporation) as of December 31, 1999 and the balance sheet and statement of
income of RX Technology, Inc. (Subsidiary) (A Nevada Corporation) as of
December 31, 1999 giving effect to a transaction completed on February 16, 2000,
wherein Parent acquired Subsidiary as a wholly-owned subsidiary (the
"Acquisition"). This business combination is treated as a reverse acquisition
and as a recapitalization of Subsidiary. Parent issued common stock in exchange
for all of the issued and outstanding shares of Subsidiary. The following
proforma balance sheet and statement of income uses the assumptions as described
in the notes and the historical financial information available at December 31,
1999. The financial statements of Parent at December 31, 1999 are audited. The
financial statements of Subsidiary at December 31, 1999 are also audited.
The unaudited proforma combined balance sheet and statement of income should
be read in conjunction with the separate financial statements and related notes
thereto of Parent and Subsidiary. The unaudited proforma condensed combined
balance sheet and statement of income are not necessarily indicative of the
condensed combined balance sheet and statement of income which might have
existed for the periods indicated or the results of operations as they may
appear now or in the future.
F-15
<PAGE>
RX TECHNOLOGY HOLDINGS, INC.
(FORMERLY VALLEY EXCAVATION AND TRUCKING, INC.)
RX TECHNOLOGY, INC.
PROFORMA COMBINED BALANCE SHEET
(UNAUDITED)
GIVING EFFECT TO AN ACQUISITION ON FEBRUARY 16, 2000 AND COMMON STOCK ISSUED ON
MARCH 24, 2000
<TABLE>
<CAPTION>
PROFORMA
RX REVERSE
TECHNOLOGY ACQUISITION RX RX PROFORMA
HOLDINGS, INCREASE TECHNOLOGY TECHNOLOGY, INCREASE PROFORMA
INC. (DECREASE) HOLDINGS, INC. INC. (DECREASE) COMBINED
---------- ----------- -------------- ----------- ---------- ----------
(12-31-99) (12-31-99) (12-31-99)
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents................. $ 5,887 $ -- $ 5,887 $ 109,958 $ 344,525 (5) $2,486,998
126,000 (1)
2,826,500 (2)
(63,975)(2)
(715,870)(3)
(146,027)(4)
Accounts receivable, net.................. -- -- -- 286,750 -- 286,750
Inventory................................. -- -- -- 190,055 -- 190,055
------- -------- ------- ---------- ---------- ----------
Total Current Assets........................ 5,887 -- 5,887 586,763 2,371,153 2,963,803
Property and Equipment, net................. -- -- -- 2,538,168 -- 2,538,168
Assets of discontinued operations........... 40,960 -- 40,960 -- -- 40,960
Due from shareholder........................ -- -- -- 11,341 -- 11,341
Other assets................................ -- -- -- 25,981 -- 25,981
------- -------- ------- ---------- ---------- ----------
Total Assets................................ $46,847 $ -- $46,847 $3,162,253 $2,371,153 $5,580,253
======= ======== ======= ========== ========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Notes payable............................. $ -- $ -- $ -- $1,784,366 $ 126,000 (1) $1,224,699
(126,000)(2)
(559,667)(3)
Advance from Valley Excavation & Trucking, -- -- -- 395,000 (250,000)(2) --
Inc..................................... (145,000)(4)
Line of credit............................ -- -- -- 48,547 -- 48,547
Current portion of long-term debt......... -- -- -- 40,225 -- 40,225
Accounts payable.......................... -- -- -- 484,333 -- 484,333
Accrued expenses.......................... -- -- -- 185,227 -- 185,227
Liabilities of discontinued operations.... 4,896 -- 4,896 -- -- 4,896
Deferred revenue.......................... -- -- -- 50,000 -- 50,000
------- -------- ------- ---------- ---------- ----------
Total Current Liabilities................... 4,896 -- 4,896 2,987,698 (954,667) 2,037,927
Long-term debt, less current portion........ -- -- -- 47,846 -- 47,846
Deferred income taxes....................... -- -- -- 93,063 -- 93,063
------- -------- ------- ---------- ---------- ----------
Total Liabilities........................... 4,896 -- 4,896 3,128,607 (954,667) 2,178,836
------- -------- ------- ---------- ---------- ----------
Stockholders' Equity
Preferred stock; $.001 par value, -- -- -- -- --
1,000,000 shares authorized, no shares
issued and outsanding...................
Common stock; $.001 par value, 50,000,000 2,000 5,000 (1) 7,000 2,027 1,830 (2) 9,027
shares authorized, 8,830,000 shares (2,027)(6)
issued and outstanding.................. 197 (5)
Additional paid-in capital................ 60,698 (5,000)(1) 34,951 719,727 3,200,670 (2) 4,087,728
(20,747)(2) (63,975)(2)
(150,000)(3)
2,027 (6)
344,328 (5)
Retained earnings (deficit)............... (20,747) 20,747 (2) -- (688,108) (6,203)(3) (695,338)
(1,027)(4)
-- -- -- -- -- --
------- -------- ------- ---------- ---------- ----------
</TABLE>
F-16
<PAGE>
RX TECHNOLOGY HOLDINGS, INC.
(FORMERLY VALLEY EXCAVATION AND TRUCKING, INC.)
RX TECHNOLOGY, INC.
PROFORMA COMBINED BALANCE SHEET
(UNAUDITED)
<TABLE>
<CAPTION>
PROFORMA
RX REVERSE
TECHNOLOGY ACQUISITION RX RX PROFORMA
HOLDINGS, INCREASE TECHNOLOGY TECHNOLOGY, INCREASE PROFORMA
INC. (DECREASE) HOLDINGS, INC. INC. (DECREASE) COMBINED
---------- ----------- -------------- ----------- ---------- ----------
(12-31-99) (12-31-99) (12-31-99)
<S> <C> <C> <C> <C> <C> <C>
Total Stockholders' Equity (deficit)........ 41,951 -- 41,951 33,646 3,325,820 3,401,417
------- -------- ------- ---------- ---------- ----------
Total Liabilities and Stockholders' $46,847 $ -- $46,847 $3,162,253 $2,371,153 $5,580,253
Equity....................................
======= ======== ======= ========== ========== ==========
</TABLE>
The accompanying notes are an integral part of this balance sheet.
F-17
<PAGE>
RX TECHNOLOGY HOLDINGS, INC.
(FORMERLY VALLEY EXCAVATION AND TRUCKING, INC.)
RX TECHNOLOGY, INC.
PROFORMA COMBINED STATEMENT OF INCOME
(UNAUDITED)
GIVING EFFECT TO AN ACQUISITION ON FEBRUARY 16, 2000 AND COMMON STOCK ISSUED ON
MARCH 24, 2000
<TABLE>
<CAPTION>
PROFORMA
RX REVERSE
TECHNOLOGY ACQUISITION RX RX PROFORMA
HOLDINGS, INCREASE TECHNOLOGY TECHNOLOGY, INCREASE PROFORMA
INC. (DECREASE) HOLDINGS, INC. INC. (DECREASE) COMBINED
---------- ----------- -------------- ----------- ---------- ----------
(YEAR (YEAR ENDED (YEAR
ENDED 12-31-99) ENDED
12-31-99) 12-31-99)
<S> <C> <C> <C> <C> <C> <C>
Revenues.................................... $ -- $ -- $ -- $6,028,397 $ -- $6,028,397
Cost of Goods Sold.......................... -- -- -- 3,049,454 -- 3,049,454
------- -------- ------- ---------- ---------- ----------
GROSS PROFIT................................ -- -- -- 2,978,943 -- 2,978,943
------- -------- ------- ---------- ---------- ----------
Operating Expenses
Photo Sales Expenset...................... -- -- -- 1,490,270 -- 1,490,270
General and administrative................ -- -- -- 1,716,900 6,203 (3) 1,724,130
1,027 (4)
------- -------- ------- ---------- ---------- ----------
Total operating expenses.................... -- -- -- 3,207,170 7,230 3,214,400
------- -------- ------- ---------- ---------- ----------
INCOME (LOSS) FROM OPERATIONS............... -- -- -- (228,227) (7,230) (235,457)
INTEREST AND OTHER INCOME................... -- -- -- 655 -- 655
INTEREST EXPENSE............................ -- -- -- (595,774) -- (595,774)
------- -------- ------- ---------- ---------- ----------
LOSS BEFORE INCOME TAXES.................... -- -- -- (823,346) (7,230) (830,576)
PROVISION FOR INCOME TAXES.................. -- -- -- -- -- --
------- -------- ------- ---------- ---------- ----------
LOSS FROM CONTINUING OPERATIONS............. -- -- -- (823,346) (7,230) (830,576)
Loss from operation of excavation and (5,505) -- (5,505) -- -- (5,505)
hauling operations......................
------- -------- ------- ---------- ---------- ----------
NET INCOME (LOSS)........................... $(5,505) $ -- $(5,505) $ (823,346) $ (7,230) $ (836,081)
======= ======== ======= ========== ========== ==========
</TABLE>
The accompanying notes are an integral part of this statement of income
F-18
<PAGE>
RX TECHNOLOGY HOLDINGS, INC.
(FORMERLY VALLEY EXCAVATION AND TRUCKING, INC.)
RX TECHNOLOGY, INC.
PROFORMA COMBINED NOTES TO THE FINANCIAL STATEMENTS
(UNAUDITED)
RX TECHNOLOGY HOLDINGS, INC. (THE COMPANY)--(Formerly Valley Excavation and
Trucking, Inc.) was incorporated under the laws of the State of Nevada on
September 26, 1997. At the organizational meeting of the board of directors the
Company authorized the issuance of 1,000,000 shares of the Company's common
stock to its founders for $9,000. During 1997, the Company completed an offering
of 200,000 shares of its common stock, offering price $.25 per share, pursuant
to an exemption from registration under the Securities Act of 1933, provided by
Regulation D, Rule 504. The Company was organized for the purpose of excavation,
trucking, snow removal and related contracting services. The Company was not as
successful in this business as anticipated and recently began winding down its
business and completed an acquisition of RXT ("Acquisition") on February 16,
2000.
RX TECHNOLOGY, INC. (RXT)--a Nevada corporation, is an international company
that markets and services digital image processing equipment and specializes in
the electronic capture, presentation and sale of pictures of guests on amusement
park ride attractions. The Company currently operates in the United States of
America and in Argentina. Presently, RX Technology, Ltd. (RX Technology Europe
Limited) owns the technology used by RXT in its business operations and RXT has
the rights to market the technology in North and South America and to enter Asia
on a non-exclusive basis with RX Technology Europe Limited. RXT purchases
equipment from RX Technology Europe Limited at a price that is equal to actual
cost of production plus approximately 25% of such cost. This markup is in
essence a licensing fee to RX Technology Europe Limited. RXT is currently
formalizing its relationship with RX Technology Europe Limited into a formal
licensing agreement.
PROFORMA ADJUSTMENTS--REVERSE ACQUISITION--(1) The Company acquired all of
the issued and outstanding shares of RXT in exchange for 5,000,000 restricted
shares of previously authorized but unissued shares of its common stock. The
business combination is a reverse acquisition and is treated as a
recapitalization of RXT. (2) This is part of the recapitalization transaction
and entry. It eliminates the retained deficit of the Company accounting for the
transaction as if the shares were exchanged by RXT for the net assets of the
Company. OTHER PROFORMA ADJUSTMENTS--(1) Subsequent to December 31, 1999, RXT in
anticipation of the acquisition was loaned $126,000. (2) The Company sold
1,830,000 shares of common stock for $1.75 per share for $3,202,500. The
$3,202,500 consisted of cash of $2,826,500 and the conversion of the $126,000
loan explained above to stock and an additional conversion of a RXT loan of
$250,000, existing at December 31, 1999, also to stock. Costs of the offering
were $63,975. (3) Net cash from the offering was used to pay a bank lender the
following; $559,667 for a loan payoff, $6,203 for interest and $150,000 to
purchase back warrants held by the bank. The warrants allowed the bank to
purchase 222,733 shares of RXT common stock for $50. (4) Also, net cash from the
offering was used to payoff two loans that totaled $145,000 and interest of
$1,027. (5) The Company sold 196,870 shares of common stock at $1.75 per share
for a total aggregate of $344,525 on March 24, 2000.
STOCK OPTION PLAN--The Company has adopted, with the approval of its
stockholders, a Stock Option Plan (the "Plan"), pursuant to which it is
authorized to grant options to purchase up to 5,000,000 shares of common stock
to the Company's key employees, officers, directors, consultants, and other
agents and advisors. Awards under the Plan will consist of stock options (both
non-qualified options and options intended to qualify as "Incentive Stock
Options" under Section 422 of the Internal Revenue Code of 1986, as amended),
restricted stock awards, deferred stock awards, stock appreciation rights and
other stock-based awards, which are described in the Plan.
F-19
<PAGE>
RX TECHNOLOGY HOLDINGS, INC.
(FORMERLY VALLEY EXCAVATION AND TRUCKING, INC.)
RX TECHNOLOGY, INC.
PROFORMA COMBINED NOTES TO THE FINANCIAL STATEMENTS
(UNAUDITED) (CONTINUED)
The Plan will be administered by the Board of Directors which will determine
the persons to whom awards will be granted, the number of awards to be granted
and the specific terms of each grant, including the vesting thereof, subject to
the provisions of the Plan. In connection with qualified stock options, the
exercise price of each option may not be less than 100% of the fair market value
of the common stock on the date of grant (or 110% of the fair market value in
the case of a grantee holding more than 10% of the outstanding stock of the
Company). The aggregate fair market value of shares for which qualified stock
options are exercisable for the first time by such employee (10% shareholder)
during any calendar year may not exceed $100,000. Non-qualified stock options
granted under the Plan my be granted at a price determined by the Board of
Directors, not to be less than the fair market value of the common stock on the
date of grant.
The plan also contains certain change in control provisions which could
cause options and other awards to become immediately exercisable and
restrictions and deferral limitations applicable to other awards to lapse in the
event any "person," as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, including a "group" as defined in
Section 13(d), but excluding certain stockholders of the Company, became the
beneficial owners of more than 25% of the Company's outstanding shares of common
stock.
The Company has granted options to purchase 3,000,000 shares of its common
stock to RXT stockholders and 1,000,000 shares of its common stock to RXT
employees and others, all exercisable for five years at $1.75 per share.
CONSULTANT'S OPTIONS--On May 1, 1999, RXT granted Capstone Partners, L.C.
the option to purchase 100,000 shares of RXT common stock at $2.00 per share at
any time through May, 2002. The options contain the obligation of the issuer to
register the underlying shares in the event of an underwritten public securities
offering. The Company has granted an option to acquire 246,653 shares of its
common stock at $.81 per share in exchange for this option.
F-20
<PAGE>
VALLEY EXCAVATION & TRUCKING, INC.
FINANCIAL STATEMENTS
DECEMBER 31, 1999
PRITCHETT, SILER & HARDY, P.C.
CERTIFIED PUBLIC ACCOUNTANTS
F-21
<PAGE>
VALLEY EXCAVATION & TRUCKING, INC.
CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Independent Auditors' Report................................ 1
Balance Sheet, December 31, 1999............................ 2
Statements of Operations, for the years ended December 31,
1999 and 1998 and for the period from inception on
September 26, 1997 through December 31, 1999.............. 3
Statement of Stockholders' Equity, from inception on
September 26, 1997 through December 31, 1999.............. 4
Statements of Cash Flows, for the years ended December 31,
1999 and 1998 and for the period from inception on
September 26, 1997 through December 31, 1999.............. 5-6
Notes to Financial Statements............................... 7-10
</TABLE>
F-22
<PAGE>
[LETTERHEAD]
INDEPENDENT AUDITORS' REPORT
Board of Directors
VALLEY EXCAVATION & TRUCKING, INC.
Swan Valley, Idaho
We have audited the accompanying balance sheet of Valley Excavation &
Trucking, Inc. at December 31, 1999, and the related statements of operations,
stockholders' equity and cash flows for the years ended December 31, 1999 and
1998 and for the period from inception on September 26, 1997 through
December 31, 1999. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements audited by us present fairly, in
all material respects, the financial position of Valley Excavation & Trucking,
Inc. as of December 31, 1999, and the results of its operations and its cash
flows for the years ended December 31, 1999 and 1998 and for the period from
inception through December 31, 1999, conformity with generally accepted
accounting principles.
The accompanying financial statements have been prepared assuming the
Company will continue as a going concern. As discussed in Note 6 to the
financial statements, the Company has incurred losses since inception and has
discontinued its operations, raising substantial doubt about its ability to
continue as a going concern. Management's plans in regards to these matters are
also described in Note 6. The financial statements do not include any
adjustments that might result from the outcome of these uncertainties.
/s/ Pritchett, Siler & Hardy, P.C.
PRITCHETT, SILER & HARDY, P.C.
January 14, 2000
Salt Lake City, Utah
F-23
<PAGE>
VALLEY EXCAVATION AND TRUCKING, INC.
BALANCE SHEET
<TABLE>
<CAPTION>
DECEMBER 31,
1999
------------
<S> <C>
ASSETS
CURRENT ASSETS:
Cash in bank.............................................. $ 5,887
--------
Total Current Assets.................................... 5,887
--------
ASSETS OF DISCONTINUED OPERATIONS........................... 40,960
--------
$ 46,847
--------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Liabilities of discontinued operations.................... 4,896
--------
Total Current Liabilities............................... 4,896
--------
STOCKHOLDERS' EQUITY:
Preferred stock, $.001 par value, 1,000,000 shares
authorized, no shares issued and outstanding............ --
Common Stock, $.001 par value, 24,000,000 shares
authorized, 2,000,000 shares issued and outstanding..... 2,000
Capital in excess of par value............................ 60,698
Deficit accumulated during the development stage.......... (20,747)
--------
Total Stockholders' Equity.............................. 41,951
--------
$ 46,847
========
</TABLE>
The accompanying notes are an integral part of this financial statement.
F-24
<PAGE>
VALLEY EXCAVATION & TRUCKING, INC.
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE FROM INCEPTION ON
YEARS ENDED SEPTEMBER 26,
DECEMBER 31 1997 THROUGH
----------------------- DECEMBER 31,
1999 1998 1999
-------- -------- -----------------
<S> <C> <C> <C>
REVENUE................................................ $ -- $ -- $ --
------- -------- --------
OPERATING EXPENSE...................................... -- -- --
------- -------- --------
GROSS PROFIT........................................... -- -- --
------- -------- --------
EXPENSES:
General and Administrative........................... -- -- --
------- -------- --------
LOSS FROM OPERATIONS BEFORE INCOME TAXES............... -- -- --
------- -------- --------
CURRENT TAX EXPENSE.................................... -- -- --
DEFERRED TAX EXPENSE................................... -- -- --
------- -------- --------
(Loss) From continuing operations.................... -- -- --
DISCONTINUED OPERATIONS
(Loss) From operation of discontinued excavation and
hauling operations................................. (5,505) (14,472) (20,747)
------- -------- --------
LOSS FROM DISCONTINUED OPERATIONS...................... (5,505) (14,472) (20,747)
------- -------- --------
NET LOSS............................................... $(5,505) $(14,472) $ 20,747
------- -------- --------
LOSS PER COMMON SHARE:
Continuing operations................................ $ (.00) $ (.00) $ (.00)
Discontinued operations.............................. $ (.00) $ (.01) $ (.01)
------- -------- --------
Loss Per Common Share.............................. $ (.00) $ (.01) $ (.01)
------- -------- --------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-25
<PAGE>
VALLEY EXCAVATION & TRUCKING, INC.
STATEMENT OF STOCKHOLDERS' EQUITY
FROM THE DATE OF INCEPTION ON SEPTEMBER 26, 1997
THROUGH DECEMBER 31, 1999
<TABLE>
<CAPTION>
DEFICIT
COMMON STOCK CAPITAL IN ACCUMULATED
-------------------- EXCESS OF DURING THE
SHARES AMOUNT PAR VALUE DEVELOPMENT STAGE
--------- -------- ---------- -----------------
<S> <C> <C> <C> <C>
BALANCE, September 26, 1997..................... -- $ -- $ -- $ --
Issuance of 1,800,000 shares common stock for
cash, November 4, 1997 at $.005 per share..... 1,800,000 1,800 7,200 --
Issuance of 15,000 shares common stock for cash,
December 1997 at $.30 per share............... 15,000 15 4,485 --
Net loss for the period ended December 31,
1997.......................................... -- -- -- (770)
--------- ------ ------- --------
BALANCE, December 31, 1997...................... 1,815,000 1,815 11,685 (770)
Issuance of 185,000 shares common stock for
cash, January - February 1998 at $.30 per
share, net of offering costs of $6,302........ 185,000 185 49,013 --
Net loss for the year ended December 31, 1998... -- -- -- (14,472)
--------- ------ ------- --------
BALANCE, December 31, 1998...................... 2,000,000 $2,000 $60,698 $(15,242)
Net loss for the year ended December 31, 1999... -- -- -- (5,505)
--------- ------ ------- --------
BALANCE, December 31, 1999...................... 2,000,000 $2,000 $69,698 $(20,747)
--------- ------ ------- --------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-26
<PAGE>
VALLEY EXCAVATION & TRUCKING, INC.
STATEMENTS OF CASH FLOWS
NET INCREASE (DECREASE) IN CASH
<TABLE>
<CAPTION>
FOR THE FROM INCEPTION ON
YEARS ENDED SEPTEMBER 26,
DECEMBER 31 1997 THROUGH
----------------------- DECEMBER 31,
1999 1998 1999
-------- -------- -----------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss............................................ $ (5,505) $(14,472) $(20,747)
Adjustments to reconcile net loss to net cash used
by operating activities:
Non-cash expense.................................. -- 1,000 1,000
Depreciation and amortization..................... 12,340 8,349 20,742
Change in assets and liabilities:
Increase in accounts payable.................... (2,735) 1,919 --
(Decrease) in accounts payable--related party... -- (3,398) --
Increase (decrease) in accrued payroll and
payroll taxes................................. (723) 1,328 587
Increase (decrease) in accrued interest......... (122) (51) --
Increase in leases payable...................... -- 646 --
-------- -------- --------
Net Cash Provided (Used) by Operating
Activities.................................. 3,255 (4,679) 1,582
-------- -------- --------
CASH FLOWS TO INVESTING ACTIVITIES:
Payment of organization costs....................... -- -- (1,000)
Payments for equipment.............................. -- (38,051) (38,051)
-------- -------- --------
Net Cash (Used) by Investing Activities....... -- (38,051) (39,051)
-------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from common stock issuance................. -- 55,500 69,000
Deferred stock offering costs....................... -- (4,986) (6,302)
Payments on capital lease........................... (10,314) (6,820) (19,342)
-------- -------- --------
Net Cash Provided (Used) by Financing
Activities.................................. (10,314) 43,694 43,356
-------- -------- --------
NET INCREASE IN CASH.................................. (7,059) 964 5,887
CASH AT BEGINNING OF PERIOD........................... 12,946 12,000 --
-------- -------- --------
CASH AT END OF PERIOD................................. $ 5,887 $ 12,964 $ 5,887
-------- -------- --------
SUPPLEMENT DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest.......................................... $ 1,085 $ 1,628 $ 3,257
Income taxes...................................... $ -- $ -- $ --
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND
FINANCING ACTIVITIES:
For the period ended December 31, 1999:
None
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND
FINANCING ACTIVITIES:
For the period ended December 31, 1998:
None
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-27
<PAGE>
VALLEY EXCAVATION & TRUCKING, INC.
NOTES TO FINANCIAL STATEMENTS
NOTE 1--SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION--Valley Excavation & Trucking, Inc. (the Company) was organized
under the laws of the State of Nevada on September 26, 1997. The Company has
entered into an agreement to acquire all of the outstanding stock of RX
Technologies, Inc. [See Note 8]. In connection therewith the company has
discontinued the business of residential foundation and sewer excavation, the
hauling of top soil, sand and gravel, and seasonal snow removal and other
related contracting services in the areas of: Swan Valley & Victor, Idaho, and
Jackson Hole, Wyoming. The Company has, at the present time, not paid any
dividends and any dividends that may be paid in the future will depend upon the
financial requirements of the Company and other relevant factors.
ORGANIZATION COSTS--During the year ended 1998, the Company fully amortized
its organization costs in accordance with statement of position 98-5, "Reporting
on the Costs of Start-Up Activities."
LOSS PER SHARE--The computation of loss per share is based on the weighted
average number of shares outstanding during the period presented in accordance
with FASB 128 "Earnings Per Share". [SEE NOTE 7]
CASH AND CASH EQUIVALENTS--For purposes of the statement of cash flows, the
Company considers all highly liquid debt investments purchased with a maturity
of three months or less to be cash equivalents.
ACCOUNTING ESTIMATES--The preparation of financial statements in conformity
with generally accepted accounting principles required management to make
estimates and assumptions that effect the reported amounts of assets and
liabilities, the disclosures of contingent assets and liabilities at the date of
the financial statements, and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimated by
management.
RECENTLY ENACTED ACCOUNTING STANDARDS--Statement of Financial Accounting
Standards (SFAS) No. 132, "Employer's Disclosure about Pensions and Other
Postretirement Benefits", SFAS No. 133, "Accounting for Derivative Instruments
and Hedging Activities', SFAS No. 134, "Accounting for Mortgage-Backed
Securities . . ." and SFAS No. 135, "Rescission of FASB Statement No. 75 and
Technical Corrections" were recently issued. SFAS No. 132, 133, 134 and 135 have
no current applicability to the Company or their effect on the financial
statements would not have been significant.
PROPERTY AND EQUIPMENT--Property and equipment are stated at cost.
Expenditures for repairs and maintenance are charged to operating expense as
incurred. Expenditures for additions and betterments that extend the useful
lives of property and equipment are capitalized, upon being placed in service.
When assets are sold or otherwise disposed of, the cost and related accumulated
depreciation or amortization are removed from the accounts and any resulting
gain or loss is included in operations.
DEPRECIATION--Depreciation of equipment is computed using the straight-line
method over the estimated useful lives of the assets. Leasehold improvements are
amortized over the lease period or the estimated useful life of the
improvements, whichever is less.
NOTE 2--DISCONTINUED OPERATIONS
The accompanying financial statements as of December 31, 1999, have been
reclassified to reflect management's decision to discontinue the Company's
operations in the Excavation and Trucking Industry. The long-term assets and
current liabilities related to the previous operations are included on the
Company's December 31, 1999 balance sheets as "assets of discontinued
operations" and "liabilities of discontinued operations", respectively.
F-28
<PAGE>
VALLEY EXCAVATION & TRUCKING, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 2--DISCONTINUED OPERATIONS (CONTINUED)
Assets of discontinued operations consisted of the following at
December 31, 1999:
<TABLE>
<CAPTION>
DECEMBER 31
1999
-----------
<S> <C>
PROPERTY AND EQUIPMENT, net................................. $40,960
-------
Totals.................................................. $40,960
-------
</TABLE>
Assets are shown at their net book value.
Liabilities of discontinued operations consisted of the following at
December 31, 1999:
<TABLE>
<CAPTION>
DECEMBER 31
1999
-----------
<S> <C>
CAPITAL LEASE PAYABLE....................................... $4,896
------
Totals.................................................. $4,896
------
</TABLE>
CAPITAL LEASES--The Company is the lessee of a backhoe under a capital lease
expiring in September of 2000. The asset and liability under the capital lease
was recorded at $23,651. The remaining balance of $4,896 is due in monthly
payments through September 2000.
NOTE 3--CAPITAL STOCK
COMMON STOCK--During November, 1997, in connection with its organization,
the Company issued 1,800,000 shares of its previously authorized, but unissued
common stock. Total proceeds from the sale of stock amounted to $9,000 (or $.005
per share).
PUBLIC OFFERING OF COMMON STOCK--During 1997, the Company commenced a public
offering of 200,000 shares of its previously authorized but unissued common
stock of which 15,000 shares had been sold at December 31, 1997 for proceeds of
$4,500 (or $.30 per share). During 1998, in connection with the public offering
of its common stock, the Company issued the remaining 185,000 shares of its
previously authorized but unissued common stock for proceeds of $55,500 (or $.30
per share).
PREFERRED STOCK--The Company has authorized 1,000,000 shares of preferred
stock, $.001 par value with such rights, preferences and designations and to be
issued in such series as determined by the board of directors. No shares are
issued and outstanding at December 31, 1999.
NOTE 4--INCOME TAXES
The Company accounts for income taxes in accordance with Statement of
Financial Accounting Standards No. 109 "Accounting for Income Taxes". FASB 109
requires the Company to provide a net deferred tax asset/liability equal to the
expected future tax benefit/expense of temporary reporting differences between
book and tax accounting methods and any available operating loss or tax credit
carryforwards.
The Company has available at December 31, 1999, unused operating loss
carryforwards of approximately $20,000 which may be applied against future
taxable income and which expire in various years through 2019. The amount of and
ultimate realization of the benefits from the operating loss carryforwards
F-29
<PAGE>
VALLEY EXCAVATION & TRUCKING, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 4--INCOME TAXES (CONTINUED)
for income tax purposes is dependent, in part, upon the tax laws in effect, the
future earnings of the Company, and other future events, the effects of which
cannot be determined. Because of the uncertainty surrounding the realization of
the loss carryforwards the Company has established a valuation allowance equal
to the amount of the loss carryforwards and, therefore, no deferred tax asset
has been recognized for the loss carryforwards. The net deferred tax assets are
approximately $6,800 as of December 31, 1999, with an offsetting valuation
allowance at year end of the same amount resulting in a change in the valuation
allowance of approximately $1,500 during 1999.
NOTE 5--RELATED PARTY TRANSACTIONS
MANAGEMENT COMPENSATION--The Company has not paid any compensation to its
officers and directors.
OFFICE SPACE--The Company has not had a need to rent office space. An
officer/shareholder of the Company is allowing the Company to use his home as a
mailing address, as needed, at no expense to the Company.
NOTE 6--GOING CONCERN
The accompanying financial statements have been prepared in conformity with
generally accepted accounting principles, which contemplate continuation of the
Company as a going concern. However, the Company has incurred losses since its
inception and has discontinued its current operations. These factors raise
substantial doubt about the ability of the Company to continue as a going
concern. In this regard, management is proposing to raise any necessary
additional funds not provided by operations through loans and/or through
additional sales of its common stock. There is no assurance that the Company
will be successful in raising additional capital or achieving profitable
operations. The financial statements do not include any adjustments that might
result from the outcome of these uncertainties.
NOTE 7--LOSS PER SHARE
The following data show the amounts used in computing loss per share and the
effect on loss and the weighted average number of shares of common stock for the
year ended December 31, 1999 and 1998 and for the period from inception through
December 31, 1999:
<TABLE>
<CAPTION>
FROM INCEPTION
YEARS ENDED SEPTEMBER 26,
DECEMBER 31 1997 THROUGH
------------------------- DECEMBER 31,
1999 1998 1999
--------- --------- --------------
<S> <C> <C> <C>
Loss from continuing operations available to common
shareholders......................................... $(5,505) $(14,472) $(20,747)
Less: preferred dividends.............................. -- -- --
--------- --------- ---------
Income (loss) available to common stockholders used in
earnings (loss) per share............................ $(5,505) $(14,472) $(20,747)
--------- --------- ---------
Weighted average number of common shares outstanding
used in earnings (loss) per share for the period..... 2,000,000 1,983,274 1,896,500
--------- --------- ---------
</TABLE>
F-30
<PAGE>
VALLEY EXCAVATION & TRUCKING, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 8--SUBSEQUENT EVENTS
PROPOSED ACQUISITION--The Company has entered into an agreement to acquire
all of the issued and outstanding common stock of RX Technology, Inc., a Nevada
corporation, in exchange of 5,000,000 shares of the Company's common stock. In
connection with the proposed acquisition, the Company will amend its Articles of
Incorporation to increase its authorized shares of common stock to 50,000,000
shares and will change its corporate name. The Company will appoint new
management and change the location of its offices. Also, as a negotiated term of
the proposed acquisition, the Company is required to dispose of its existing
operating assets.
The proposed acquisition is contingent upon the Company raising $3,202,500
in a private placement of common stock at $1.75 per share. The proposed
acquisition is scheduled to be completed on February 14, 2000, subject to a
thirty day extension.
F-31
<PAGE>
INDEX TO FINANCIAL STATEMENTS
FOR RX TECHNOLOGY HOLDINGS, INC.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The statutes, charter provisions, bylaws, contracts or other arrangements
under which controlling persons, directors or officers of the registrant are
insured or indemnified in any manner against any liability which they may incur
in such capacity are as follows:
A. Section 78.751 of the Nevada Business Corporation Act provides that each
corporation shall have the following powers:
1. A corporation may indemnify any person who was or is a party or is
threatened to be made party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative, except an action by or in the right of the corporation, by
reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses,
including attorneys' fees, judgments, fines and amounts actually and
reasonably incurred by him in connection with the action, paid in settlement
or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, does not, of itself create
apresumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
corporation, and that, with respect to any criminal action or proceeding, he
had reasonable cause to believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses, including amounts paid in settlement and attorneys' fees actually
and reasonably incurred by him in connection with the defense or settlement
of the action or suit if he acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation. Indemnification may not be made for any claim, issue or matter
as to which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
corporation or for amounts paid in settlement to the corporation, unless and
only to the extent that the court in which the action or suit was brought or
other court of competent jurisdiction, determines upon application that in
view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such expenses as the court deems
proper.
3. To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in subsections 1 and 2, or in defense of any
claim, issue or matter therein, he must be indemnified by the corporation
against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with the defense.
4. Any indemnification under subsections 1 and 2, unless ordered by a court or
advanced pursuant to subsection 5, must be made by the corporation only as
authorized in the specific case upon a
II-1
<PAGE>
determination that indemnification of the director, officer, employee or
agent is proper in the circumstances. The determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum consisting of
directors who were not parties to the act, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the act, suit or proceeding so orders, by independent legal
counsel, in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the act,
suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
5. The articles of incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred
in defending a civil or criminal action, suit or proceeding must be paid by
the corporation as they are incurred and in advance of the final disposition
of the action, suit or proceeding, upon receipt of an undertaking by or on
behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to
be indemnified by the corporation. The provisions of this subsection do not
affect any rights to advancement of expenses to which corporate personnel
other than director of officers may be entitled under any contract or
otherwise by law.
6. The indemnification and advancement of expenses authorized in or ordered by
a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the
articles of incorporation or any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, for either an action in his
official capacity or an action in another capacity while holding his
office, except that indemnification, unless ordered by a court pursuant
to subsection 2 or for the advancement of expenses made pursuant to
subsection 5, may not be made to or on behalf of any director or officer
if a final adjudication establishes that his acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law and was
material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
B. The Registrant's articles of incorporation limit liability of its
officers and directors to the corporation for monetary damages for any breach of
fiduciary duty subject to certain exceptions.
C. The Registrant has executed an indemnity agreement with certain of its
directors and key employees under which the Registrant will indemnify them for
certain losses and expenses.
II-2
<PAGE>
ITEM 25. OTHER EXPENSES OF THE ISSUANCE AND DISTRIBUTION
The following table sets forth all estimated costs and expenses, other the
underwriting discounts, commissions and expense allowances, payable by the
registrant in connection with the maximum offering for the securities included
in this registration statement:
<TABLE>
<S> <C>
SEC registration fee........................................ $ 837
Blue sky fees and expenses.................................. 5,000
Printing and shipping expenses.............................. 15,000
Legal fees and expenses..................................... 35,000
Accounting fees and expenses................................ 15,000
Miscellaneous expenses and Transfer Agent................... 1,663
-------
Total..................................................... $72,500
=======
</TABLE>
- ------------------------
(1) All expenses are estimated except the Commission filing fee.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
On February 16, 2000, we consummated the terms of our acquisition of RX
Technology, Inc. in accordance with the agreement and plan of reorganization we
entered into on December 27, 1999 with the stockholders of RX technology, Inc.
Pursuant to that transaction, we issued a total of 5,000,000 shares of our
common stock on a prorata basis in exchange for the common stock held by the
stockholders of RX Technology, Inc. This transaction was not registered under
the Securities Act of 1933, as amended (the "Act"), in reliance on the exemption
provided by Section 4(2) of the Act, as a transaction not involving any public
offering. The shares of common stock were issued as restricted securities and
the certificates were stamped with a restrictive legend to prevent any resale
without registration under the Act or in compliance with an exemption therefrom.
On February 16, 2000, we consummated the terms of our acquisition of RX
Technology, Inc. in accordance with the agreement and plan of reorganization we
entered into on December 27, 1999 with the stockholders of RX Technology, Inc.
Pursuant to that transaction, and to consummate the private placement of shares
of our common stock in order to raise capital for our use on a post-acquisition
basis, we issued 1,830,000 shares of our common stock at $1.75 per share raising
total aggregate gross offering proceeds of $3,202,500. These shares were offered
and sold solely to accredited investors. This transaction was not registered
under the Securities Act of 1933, as amended (the "Act"), in reliance on the
exemption provided by Section 4(2) of the Act, as a transaction not involving
any public offering and were claimed as exempt from registration pursuant to
Rule 506 of Regulation D promulgated under the Act. The shares of common stock
were issued as restricted securities and the certificates were stamped with a
restrictive legend to prevent any resale without registration under the Act or
in compliance with an exemption therefrom.
On March 24, 2000 we offered and sold additional shares of our common stock
to some of our existing shareholders on the same terms and conditions as the
private placement we consummated on February 16, 2000. Pursuant to this
additional offering, we issued an additional 196,870 shares of our common stock
at $1.75 per share raising additional total aggregate gross offering proceeds of
$344,525. These shares were offered and sold solely to accredited investors.
This transaction was not registered under the Securities Act of 1933, as amended
(the "Act"), in reliance on the exemption provided by Section 4(2) of the Act,
as a transaction not involving any public offering and were claimed as exempt
from registration pursuant to Rule 506 of Regulation D promulgated under the
Act. The shares of common stock were issued as restricted securities and the
certificates were stamped with a restrictive legend to prevent any resale
without registration under the Act or in compliance with an exemption therefrom.
II-3
<PAGE>
ITEM 27. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
2.0 Agreement and Plan of Reorganization between RX Technology,
Inc. and Valley Excavation and Trucking, Inc. dated
December 27, 1999.
3.0 Articles of Incorporation of Valley Excavation and Trucking,
Inc. dated September 26, 1997.
3.1 Amended Articles of Incorporation of Valley Excavation and
Trucking, Inc. dated February 17, 2000.
3.2 Articles of Incorporation of RX Technology, Inc. dated
December , 1993.
3.3 Amended and Restated Articles of Incorporation dated
.
5.0 Opinion of Gregory Bartko, Esq. dated April , 2000.*
10.0 Concession Lease Agreement between Paramount Parks, Inc. and
RX Technology, Inc. dated February 15, 2000 Regarding
Outer Limits.
10.1 Concession Lease Agreement between Paramount Parks, Inc. and
RX Technology, Inc. dated February 15, 2000 Regarding
Vortex.
10.2 Concession Lease Agreement between Paramount Parks, Inc. and
RX Technology, Inc. dated February 15, 2000 Regarding The
Beast.
10.3 Concession Lease Agreement between Paramount Parks, Inc. and
RX Technology, Inc. dated February 15, 2000 Regarding
Taxi.
10.4 Concession Lease Agreement between Paramount Parks, Inc. and
RX Technology, Inc. dated February 15, 2000 Regarding
Stealth.
10.5 Agreement Between RX Technology, Inc. and Six Flags
St. Louis, a division of Six Flags Theme Parks, Inc. dated
February 14, 2000.
10.6 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000.
10.7 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding The Riddler.
10.8 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Wile E. Coyote.
10.9 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Goliath.
10.10 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Eagle.
10.11 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Spacely Sprockets.
10.12 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Shockwave.
10.13 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Batman The Ride.
10.14 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Raging Bull.
10.15 Products and Services Agreement Between The Poloroid
Corporation and RX Technology, Inc. dated November 5,
1998.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.16 Services Agreement by and among Poloroid Corporation,
LEGOLAND California and RX Technology, Inc. dated
December 10, 1998.
10.17 Services Agreement by and among Poloroid Corporation,
LEGOLAND California and RX Technology, Inc. dated
December 10, 1998 Regarding Joust.
10.18 License Agreement Between Six Flags Great Adventure, a
division of Six Flags Theme Parks, Inc. and
RX Technology, Inc. dated January 22, 1999 Regarding
Chiller.
10.19 License Agreement Between Six Flags Great Adventure, a
division of Six Flags Theme Parks, Inc. and
RX Technology, Inc. dated January 22, 1999 Regarding
Medusa.
10.20 Amendment One To License Agreement between Park Management
Corp., Inc. and RX Technology, Inc. dated April 12, 1999
Regarding Marine World.
10.21 Agreement Between RX Technology, Inc. and Tren de la
Costa, S.A. dated May 5, 1997 Regarding Boomerang.
10.22 Agreement Between RX Technology, Inc. and Tren de la
Costa, S.A. dated May 5, 1997 Regarding Dragon.
10.23 Agreement Between RX Technology, Inc. and Silverwood dated
April 22, 1999 Regarding Tremors.
10.24 Agreement Between RX Technology, Inc. and Visionland dated
February 4, 1999 Regarding Rapid River.
10.25 Agreement Between RX Technology, Inc. and Kennywood
Entertainment Partners, L.P. dated December 15, 1999
Regarding Log Jammer.
10.26 Agreement Between RX Technology, Inc. and North Myrtle Beach
Grand Prix, LLC dated January 21, 2000 Regarding Crazy
Horse.
10.27 Agreement Between RX Technology, Inc. and North Myrtle Beach
Grand Prix, LLC dated January 21, 2000 Regarding Big
Splash.
10.28 Agreement Between The Great Escape Theme Park, LLC, a
division of Premier Parks, Inc. and RX Technology, Inc.
dated April 1, 2000 Regarding Alpine Bobsled.
10.29 Agreement Between The Great Escape Theme Park, LLC, a
division of Premier Parks, Inc. and RX Technology, Inc.
dated April 1, 2000 Regarding Comet and Front Gate.
10.30 Agreement Between Frontier City Theme Park, a division of
Six Flags Theme Parks, Inc. and RX Technology, Inc. dated
January 13, 2000 Regarding Wildcat and Front Gate.
10.31 Agreement Between Frontier City Theme Park, a division of
Six Flags Theme Parks, Inc. and RX Technology, Inc. dated
January 13, 2000 Regarding Renegade Rapids.
10.32 Agreement Between Oakmont Financial Services and
RX Technology, Inc. dated July 17, 1997.
10.33 Business Equipment Lease Between Imperial Business Credit
and RX Technology, Inc. dated January 15, 1997.
10.34 Equipment Lease Agreement Between Sony Electronics and
RX Technology, Inc. dated July 9, 1997.
10.35 Equipment Lease Agreement Between Sony Electronics and
RX Technology, Inc. dated June 3, 1997 and Assignments
Thereof.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
21.0 Subsidiary of the Registrant.
23.0 Consent of Wegmann-Dazet & Co., certified public
accountants, dated April 24, 2000.
23.1 Consent of Pritchett, Siler & Hardy, P.C., certified public
accountants, dated April 24, 2000.
27.0 Financial Data Schedule.
</TABLE>
- ------------------------
* To be filed by amendment
ITEM 28. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions or otherwise, the small
business issuer has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
II-6
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form SB-2 and authorized this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City in Mandeville, Louisiana on April 24, 2000.
<TABLE>
<S> <C> <C>
RX TECHNOLOGY HOLDINGS, INC.
By: /s/ DONALD REX GAY
-----------------------------------------
Donald Rex Gay,
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE
OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby authorizes Donald Rex Gay with the full power of substitution, to execute
in the name and on behalf of such person any amendment or any post-effective
amendment to this Registration Statement, and any registration statement
relating to any offering made in connection with the offering covered by this
Registration Statement that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and to file the same,
with exhibits thereto, and other documents in connection therewith, making such
changes in this Registration Statement as the Company deems appropriate, and
appoints Donald Rex Gay with full power of substitution, attorney-in-fact to
sign any amendment and any post-effective amendment to this Registration
Statement and to file the same, with exhibits thereto, and other documents in
connection therewith.
<TABLE>
<CAPTION>
NAME CAPACITY DATE
- ---- -------- ----
<C> <S> <C>
/s/ DONALD REX GAY Chairman, president and chief
------------------------------------------- executive officer and April 24, 2000
Donald Rex Gay director
/s/ DR. CHRIS MARVELL
------------------------------------------- Director April 24, 2000
Dr. Chris Marvell
/s/ HERBERT G. PERKINS
------------------------------------------- Principal accounting officer April 24, 2000
Herbert G. Perkins
/s/ RICHARD F. GOVATSKI
------------------------------------------- Director April 24, 2000
Richard F. Govatski
</TABLE>
II-7
<PAGE>
RX TECHNOLOGY
EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS
- ---------------------
<C> <S> <C>
2.0 Agreement and Plan of Reorganization between RX Technology,
Inc. and Valley Excavation and Trucking, Inc. dated
December 27, 1999.
3.0 Articles of Incorporation of Valley Excavation and Trucking,
Inc. dated September 26, 1997.
3.1 Amended Articles of Incorporation of Valley Excavation and
Trucking, Inc. dated February 17, 2000.
3.2 Articles of Incorporation of RX Technology, Inc. dated
December 22, 1993.
3.3 Certificate of Amendment of Articles of Incorporation of RX
Technology, Inc. dated January 5, 1995.
3.4 Amended and Restated Articles of Incorporation of Rx
Technology, Inc. dated February 7, 1997.
3.5 Bylaws of the Registrant dated September 26, 1997.
4.0 Form of Warrant Agreement with Interwest Transfer Co., Inc.
4.1 Specimen Form of Common Stock Purchase Warrant.
4.2 Specimen Form of Common Stock Certificate.
5.0 Opinion of Gregory Bartko, Esq. dated April , 2000.*
10.0 Concession Lease Agreement between Paramount Parks, Inc. and
RX Technology, Inc. dated February 15, 2000 Regarding
Outer Limits.
10.1 Concession Lease Agreement between Paramount Parks, Inc. and
RX Technology, Inc. dated February 15, 2000 Regarding
Vortex.
10.2 Concession Lease Agreement between Paramount Parks, Inc. and
RX Technology, Inc. dated February 15, 2000 Regarding The
Beast.
10.3 Concession Lease Agreement between Paramount Parks, Inc. and
RX Technology, Inc. dated February 15, 2000 Regarding
Taxi.
10.4 Concession Lease Agreement between Paramount Parks, Inc. and
RX Technology, Inc. dated February 15, 2000 Regarding
Stealth.
10.5 Agreement Between RX Technology, Inc. and Six Flags
St. Louis, a division of Six Flags Theme Parks, Inc. dated
February 14, 2000.
10.6 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000.*
10.7 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding The Riddler.
10.8 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Wile E. Coyote.
10.9 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Goliath.
10.10 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Eagle.
10.11 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Spacely Sprockets.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
- ---------------------
<C> <S> <C>
10.12 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Shockwave.
10.13 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Batman The Ride.
10.14 License Agreement Between RX Technology, Inc. and Six Flags
Magic Mountain, a division of Six Flags Theme Parks, Inc.
dated January 1, 2000 Regarding Raging Bull.
10.15 Products and Services Agreement Between The Poloroid
Corporation and RX Technology, Inc. dated November 5,
1998.*
10.16 Services Agreement by and among Poloroid Corporation,
LEGOLAND California and RX Technology, Inc. dated
December 10, 1998.
10.17 Services Agreement by and among Poloroid Corporation,
LEGOLAND California and RX Technology, Inc. dated
December 10, 1998 Regarding Joust.
10.18 License Agreement Between Six Flags Great Adventure, a
division of Six Flags Theme Parks, Inc. and
RX Technology, Inc. dated January 22, 1999.
10.19 License Agreement Between Six Flags Great Adventure, a
division of Six Flags Theme Parks, Inc. and
RX Technology, Inc. dated January 22, 1999 Regarding
Medusa.*
10.20 Amendment One To License Agreement between Park Management
Corp., Inc. and RX Technology, Inc. dated April 12, 1999
Regarding Marine World.
10.21 Agreement Between RX Technology, Inc. and Tren de la
Costa, S.A. dated May 5, 1997 Regarding Boomerang.
10.22 Agreement Between RX Technology, Inc. and Tren de la
Costa, S.A. dated May 5, 1997 Regarding Dragon.
10.23 Agreement Between RX Technology, Inc. and Silverwood dated
April 22, 1999 Regarding Tremors.
10.24 Agreement Between RX Technology, Inc. and Visionland dated
February 4, 1999 Regarding Rapid River.
10.25 Agreement Between RX Technology, Inc. and Kennywood
Entertainment Partners, L.P. dated December 15, 1999
Regarding Log Jammer.
10.26 Agreement Between RX Technology, Inc. and North Myrtle Beach
Grand Prix, LLC dated January 21, 2000 Regarding Crazy
Horse.
10.27 Agreement Between RX Technology, Inc. and North Myrtle Beach
Grand Prix, LLC dated January 21, 2000 Regarding Big
Splash.
10.28 Agreement Between The Great Escape Theme Park, LLC, a
division of Premier Parks, Inc. and RX Technology, Inc.
dated April 1, 2000 Regarding Alpine Bobsled.
10.29 Agreement Between The Great Escape Theme Park, LLC, a
division of Premier Parks, Inc. and RX Technology, Inc.
dated April 1, 2000 Regarding Front Gate.
10.30 Agreement Between Frontier City Theme Park, a division of
Six Flags Theme Parks, Inc. and RX Technology, Inc. dated
January 13, 2000 Regarding Wildcat and Renegade Rapids.
10.32 Agreement Between Oakmont Financial Services and
RX Technology, Inc. dated July 17, 1997.
10.33 Business Equipment Lease Between Imperial Business Credit
and RX Technology, Inc. dated January 15, 1997.
10.34 Equipment Lease Agreement Between Sony Electronics and
RX Technology, Inc. dated July 9, 1997.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
- ---------------------
<C> <S> <C>
10.35 Equipment Lease Agreement Between Sony Electronics and
RX Technology, Inc. dated June 3, 1997 and Assignments
Thereof.
10.36 Agreement Between RX Technology, Inc. and Ventas Y Servicios
Al Consumidor S.A. De C.V. dated March 22, 2000.
10.37 Agreement Between RX Technology Europe Limited and Rx
Technology, Inc. dated January 25, 2000.
21.0 Subsidiary of the Registrant.
23.0 Consent of Wegmann-Dazet & Co., certified public
accountants, dated April 24, 2000.
23.1 Consent of Pritchett, Siler & Hardy, P.C., certified public
accountants, dated April 24, 2000.
27.0 Financial Data Schedule.
</TABLE>
- ------------------------
* To be filed by amendment
<PAGE>
EXHIBIT 2.0
AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
VALLEY EXCAVATION AND TRUCKING, INC.
AND
R X TECHNOLOGY, INC.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <C>
1. Plan of Reorganization ............................................... 1
2. Exchange of Shares ................................................... 1
3. Pre-Closing Events ................................................... 2
4. Exchange of Securities ............................................... 2
5. Events Occurring at Closing .......................................... 2
6. Delivery of Shares ................................................... 3
7. Representations of RXT Stockholders .................................. 3
8. Representations of RXT ............................................... 3
9. Representations of Valley and Moeller ................................ 5
10. Closing .............................................................. 7
11. Conditions Precedent to the Obligations of RXT ....................... 7
12. Conditions Precedent to the Obligations of Valley .................... 9
13. Indemnification ...................................................... 10
14. Nature and Survival of Representations ............................... 10
15. Documents at Closing ................................................. 10
16. Finder's Fees ........................................................ 11
17. Miscellaneous ........................................................ 12
Signature Page ................................................................ 13
Exhibit A - RXT Stockholder Schedule
Exhibit B - Amendment to Articles of Incorporation
Exhibit C - Investment Letter
</TABLE>
(i)
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
------------------------------------
This Agreement and plan of Reorganization (hereinafter the "Agreement")
is entered into effective as of this 27th day of December, 1999, by and among
Valley Excavation and Trucking, Inc., a Nevada corporation (hereinafter
"Valley"); Darold Moeller, the principal shareholder of Valley (hereinafter
"Moeller"); R X Technology, Inc., a Nevada corporation (hereinafter "RXT"),
and the owners of all the outstanding shares of common stock of RXT
(hereinafter the "RXT Stockholders").
RECITALS:
WHEREAS, the RXT Stockholders own all of the issued and outstanding
common stock of RXT which comprises 2,004,600 shares (the "RXT Common
Stock"). Valley desires to acquire the RXT Common Stock solely in exchange
for voting common stock of Valley, making RXT a wholly-owned subsidiary of
Valley; and
WHEREAS, the RXT Stockholders (as set forth on the attached Exhibit "A")
desire to acquire voting common stock of Valley in exchange for the RXT
Common Stock, as more fully set forth herein.
NOW THEREFORE, for the mutual consideration set out herein and other
good and valuable consideration, the legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
---------
1. PLAN OF REORGANIZATION. It is hereby agreed that all of the RXT
Common Stock shall be acquired by Valley in exchange solely for Valley common
voting stock (the "Valley Shares"). It is the intention of the parties hereto
that all of the issued and outstanding shares of capital stock of RXT shall
be acquired by Valley in exchange solely for Valley common voting stock and
that this entire transaction qualify as a corporate reorganization under
Section 368(a)(1)(B) and/or Section 351 of the Internal Revenue Code of 1986,
as amended, and related or other applicable sections thereunder.
2. EXCHANGE OF SHARES. Valley and RXT Stockholders agree that on the
Closing Date or at the Closing as hereinafter defined, the RXT Common Stock
shall be delivered to Valley in exchange for the Valley Shares, as follows:
(a) At Closing, Valley shall, subject to the conditions set forth
herein, issue an aggregate of 5,000,000 shares of Valley common stock for
immediate delivery to the RXT Stockholders in exchange for the Valley Shares.
1
<PAGE>
(b) Each RXT Stockholder shall execute this Agreement or a written
consent to the exchange of their RXT Common Stock for Valley Shares.
(c) Unless otherwise agreed by Valley and RXT this transaction shall
close only in the event Valley is able to acquire at least 80% of the
outstanding RXT Common Stock; however, it is the intent of the parties to
have Valley acquire all of the RXT Common Stock.
3. EXCHANGE OF SECURITIES. As of the Closing Date each of the following
shall occur:
(a) All shares of RXT Common Stock issued and outstanding immediately
prior to the prior to the Closing Date shall be exchanged for the Valley
Shares (up to an aggregate amount of 5,000,000 Valley Shares to be delivered
at Closing). All such outstanding shares of RXT Common Stock shall be deemed,
after Closing, to be owned by Valley. The holders of such certificates
previously evidencing shares of RXT Common Stock outstanding immediately
prior to the Closing Date shall cease to have any rights with respect to such
shares of RXT Common Stock except as otherwise provided herein or by law;
(b) Any shares of RXT Common Stock held in the treasury of RXT
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made with
respect thereto;
(c) The 2,000,000 shares of Valley common stock previously issued and
outstanding prior to the Closing will remain outstanding.
4. EVENTS OCCURRING AT CLOSING. At Closing, the following shall be
accomplished:
(a) Valley shall filed an amendment to its articles of Incorporation
with the Secretary of State of the State of Nevada in substantially the form
attached hereto as Exhibit "B" effecting an amendment to its Articles of
Incorporation to (i) reflect a name change to a new name as selected by RXT
and, (ii) to change the authorized capitalization of Valley to 50,000,000
shares of $0.001 par value common stock and 1,000,000 shares of $.001 par
value preferred stock, as set forth in the attached Exhibit "B".
(b) The resignation of the existing Valley officer and director and
appointment of new officers and directors as directed by RXT.
(c) Valley shall have completed a private offering under Regulation D,
Rule 506, as promulgated by the Securities and Exchange Commission ("SEC")
under the Securities Act of 1933, as amended, of 1,830,000 shares of its
common stock at $1.75 per share. The gross proceeds of this offering (the
"Valley Financing") shall be $3,202,500, which amount, less agreed upon costs
(of $60,000), shall be delivered to the control of new management of Valley
at Closing in good funds and/or shall be represented by the conversion of
previous loan to RXT arranged for by Valley. The Valley Financing shall have
been
2
<PAGE>
completed in compliance with all applicable state and federal securities laws
and the securities sold shall be delivered at Closing to the investors in the
Valley Financing. Persons who have made bridge loans to RXT pursuant to
arrangements made by Valley, shall be given the opportunity to convert the
principal of said loans to the purchase of shares in the private offering
prior to Closing upon the same terms as other investors in the private
offering exact that the loans may be converted at a price which reflects a
15% discount to the private offering price.
(d) Valley shall adopt a Stock Option Plan at Closing to include up to
$4,000,000 shares of its common stock. The Plan shall include "incentive"
stock options under Section 422 of the Internal Revenue Code of 1986, as
amended and other options and similar rights. Valley shall grants options
under said plan to employees and others including 3,000,000 shares to RXT
Stockholders, at Closing, exercisable at $1.75 per share, as designated by
RXT subject to the reasonable approval of Valley.
(e) Valley shall demonstrate to the reasonable satisfaction of RXT that
it has no material assets and no liabilities contingent or fixed other than
the proceeds of the Valley Financing as described herein.
5. DELIVERY OF SHARES. On or as soon as practicable after the Closing
Date, RXT will use its best efforts to cause the RXT Stockholders to
surrender certificates for cancellation representing their shares of RXT
Common Stock, against delivery of certificates representing the Valley Shares
for which the shares of RXT Common Stock are to be exchanged at Closing.
6. REPRESENTATIONS OF RXT STOCKHOLDERS. Each RXT Stockholder hereby
represents and warrants each only as to its own RXT Common Stock, effective
at the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the RXT Common Stock is
free from claims, liens,or other encumbrances, and at the Closing Date said
RXT Stockholder will have good title and the unqualified right to transfer
and dispose of such RXT Common Stock.
(b) Said RXT Stockholder is the sole owner of the issued and outstanding
RXT Common Stock as set forth in Exhibit "A";
(c) Said RXT Stockholder has no present intent to sell or dispose of the
Valley Shares and is not under a binding obligation, formal commitment, or
existing plan to sell or otherwise dispose of the Valley Shares.
7. REPRESENTATIONS OF RXT. RXT hereby represents and warrants as
follows, which warranties and representations shall also be true as the
Closing Date:
(a) Except as noted on Exhibit "A", the RXT Stockholders listed on the
attached Exhibit "A" area the sole owners of record and beneficially of the
issued and outstanding common stock of RXT.
3
<PAGE>
(b) RXT has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in the RXT
Financial Statements or in Exhibit "A", attached hereto.
(c) The unaudited financial statements as of and for the period ended
December 31, 1998, and September 30, 1999, which have been delivered to
Valley (hereinafter referred to as the "RXT Financial Statements") are
complete and accurate in all material respects and fairly present the
financial condition of RXT as of the date thereof and the results of its
operations for the period covered. There are no material liabilities or
obligations, either fixed or contingent, not disclosed in the RXT Financial
Statements or notes thereto which are required to be disclosed therein; RXT
has no contracts or obligations in the ordinary course of business which
disclosed therein; RXT has no contracts or obligations in the ordinary course
of business which constitute liens or other liabilities which materially
alter the financial condition of RXT as reflected in the RXT Financial
Statements. RXT has good title to all assets shown on the RXT Financial
Statements subject only to dispositions and other transactions in the
ordinary course of business, the disclosures set forth therein and liens and
encumbrances of record. The RXT Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
(except as may be indicated therin or in the notes thereto).
(d) Since the date of the RXT Financial Statements, there have been any
material adverse changes in the financial position of RXT except changes
arising in the ordinary course of business, which changes will in no event
materially and adversely affect the financial position of RXT.
(e) RXT is not a party to any material pending litigation or, to its
best knowledge, any governmental investigation or proceeding, not reflected
in the RXT Financial Statements, and to its best knowledge, no material
litigation, claims, assessments or any governmental proceedings are
threatened against RXT.
(f) RXT is in good standing in its jurisdiction of incorporation, and is
in good standing and duly qualified to do business in each jurisdiction where
required to be so qualified except where the failure to so qualify would have
no material negative impact on RXT.
(g) RXT has (or, by the Closing Date, will have filed) all material tax,
governmental and/or related forms and reports (or extensions thereof) due or
required to be filed and has (or will have) paid or made adequate provisions
for all taxes or assessments which have become due as of the Closing Date.
(h) RXT has not materially breached any material agreement to which it
is a party. RXT has previously given Valley copies or access thereto of all
material contracts, commitments and/or agreements to which RXT is a party
including all relationships or dealing with related parties or affiliates.
(i) RXT has no subsidiary corporations except as described in writing to
Valley.
4
<PAGE>
[MISSING PAGES]
<PAGE>
[MISSING PAGES]
<PAGE>
[MISSING PAGES]
<PAGE>
(d) On or before the Closing Date, Valley shall have delivered to RXT
certified copies of resolutions of the board of directors and shareholders of
Valley approving and authorizing the execution, delivery and performance of
this Agreement and authorizing all of the necessary and proper action to
enable Valley to comply with the terms of this Agreement including the
election of RXT's nominees to the Board of Directors of Valley and all
matters outlined herein.
(e) The Acquisition shall be permitted by applicable law and Valley
shall have sufficient shares of its capital stock authorized to complete the
Acquisition.
(f) At Closing, the existing sole officer and director of Valley shall
have resigned in writing from all positions as director and officer of Valley
effective upon the election and appointment of the RXT nominees.
(g) At the Closing, all instruments and documents delivered to RXT and
RXT Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for RXT.
(h) The shares of restricted Valley capital stock to be issued to RXT
Stockholders and in the Valley Financing at Closing will be validly issued,
nonassessable and fully-paid under Nevada corporation law and will be issued
in compliance with all federal, state and applicable corporation and
securities laws.
(i) RXT and RXT Stockholders shall have received the advice of their tax
advisor, if deemed necessary by them, as to all tax aspects of the Acquisition.
(j) RXT shall have received all necessary and required approvals and
consents from required parties and its shareholders.
(k) Valley shall have completed the Valley Financing.
(l) At the Closing, Valley shall have delivered to RXT an opinion of its
counsel dated as of the Closing to the effect that:
(i) Valley is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation;
(ii) This Agreement has been duly authorized, executed and
delivered by Valley and is a valid and binding obligation of Valley
enforceable in accordance with its terms;
(iii) Valley through its board of directors and stockholders has
taken all corporate action necessary for performance under this
Agreement;
(iv) The documents executed and delivered by Valley to RXT and RXT
Stockholders hereunder are valid and binding in accordance with their
terms and vest in
8
<PAGE>
[MISSING PAGES]
<PAGE>
all right, title and interest in and to the RXT Common Stock, which
stock is duly and validly issued, fully-paid and nonassessable.
12. INDEMNIFICATION. For a period of one year from the Closing, Valley
and Moeller agree to jointly and severally indemnify and hold harmless RXT,
and RXT agrees to indemnify and hold harmless Valley, at all times after the
date of this Agreement against and in respect of any liability, damage or
deficiency, all actions, suits, proceedings, demands, assessments, judgments,
costs and expenses including attorney's fees incident to any of the
foregoing, resulting from any misrepresentations made by an indemnifying
party to an indemnified party, an indemnifying party's breach of covenant or
warranty or an indemnifying party's nonfulfillment of any agreement
hereunder, or from any misrepresentation in or omission from any certificate
furnished or to be furnished hereunder.
13. NATURE AND SURVIVAL OF REPRESENTATIONS. All representations,
warranties and covenants made by any party in this Agreement shall survive
the Closing and the consummation of the transactions contemplated hereby for
one year from the Closing. All of the parties hereto are executing and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement and not upon any investigation upon which it might have made or any
representation, warranty, agreement, promise or information, written or oral,
made by the other party or any other person other than as specifically set
forth herein.
14. DOCUMENTS AT CLOSING. At the Closing, the following documents shall
be delivered:
(a) RXT will deliver, or will cause to be delivered, to Valley the
following:
(i) a certificate executed by the President and Secretary of RXT
to the effect that all representations and warranties made by RXT under
this Agreement are true and correct as of the Closing, the same as though
originally given to Valley on said date;
(ii) a certificate from the jurisdiction of incorporation of RXT
dated at or about the Closing to the effect that RXT is in good standing
under the laws of said jurisdiction;
(iii) Investment Letters in the form attached hereto as Exhibit "C"
executed by each RXT Stockholder;
(iv) such other instruments, documents and certificates, if any,
as are required to be delivered pursuant to the provisions of this
Agreement;
(v) certified copies of resolutions adopted by the shareholders
and directors of RXT authorizing this transaction; and
10
<PAGE>
(vi) all other items, the delivery of which is a condition
precedent to the obligations of Valley as set forth herein.
(vii) the legal opinion required by Section 12(d) hereof.
(b) Valley will deliver or cause to be delivered to RXT:
(i) stock certificates representing the Valley Shares to be
issued as a part of the stock exchange as described herein;
(ii) a certificate of the President of Valley, to the effect that
all representation and warranties of Valley made under this Agreement
are true and correct as of the Closing, the same as though originally
given to RXT on said date;
(iii) certified copies of resolutions adopted by Valley's board of
directors and Valley's Stockholders authorizing the Acquisition and all
related matters described herein;
(iv) certification from the jurisdiction of incorporation of
Valley dated at or about the Closing Date that Valley is in good standing
under the laws of said state;
(v) opinion of Valley's counsel as described in Section 11(1)
above;
(vi) good funds representing the net proceeds of the Valley
Financing;
(vii) resignation of the existing officer and director of Valley;
(viii) all corporate and financial records of Valley; and
(ix) all other items, the delivery of which is a condition
precedent to the obligations of RXT, as set forth in Section 12 hereof.
15. FINDER'S FEES. Valley represents and warrants to RXT, and RXT
represents and warrants to Valley that neither of them, or any party acting
on their behalf, has incurred any liabilities, either express or implied, to
any "broker" of "finder" or similar person in connection with this Agreement
or any of the transactions contemplated hereby other than arrangements, if
any, disclosed to RXT by Valley to compensate any person who introduced the
parties, which obligation shall be the sole responsibility of Valley. In this
regard, Valley, on the one band, and RXT on the other hand, will indemnify
and hold the other harmless from any claim, loss, cost or expense whatsoever
(including reasonable fees and disbursements of counsel) from or relating to
any such express or implied liability other than as disclosed herein.
11
<PAGE>
16. MISCELLANEOUS.
(a) FURTHER ASSURANCES. At any time, and from time to time, after the
Closing Date, each party will execute such instruments and take such action
as may be reasonably requested by the other party to confirm or perfect title
to any property transferred hereunder or otherwise to carry out the intent
and purposes of this Agreement.
(b) WAIVER. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
(c) AMENDMENT. This Agreement may be amended only in writing as agreed
to by all parties hereto.
(d) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent
by prepaid first class registered or certified mail, return receipt requested.
(e) HEADINGS. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g) GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Nevada.
(h) BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) ENTIRE AGREEMENT. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything agreed
upon or understood in the transaction. There are no oral promises,
conditions, representations, understandings, interpretations or terms of any
kind as conditions or inducements to the execution hereof.
(j) TIME. Time is of the essence.
(k) SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
12
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
VALLEY EXCAVATION AND
TRUCKING, INC.
By: /s/ DAROLD MOELLER
----------------------------------------
Darold Moeller, President and Secretary
By: /s/ DAROLD MOELLER
----------------------------------------
Darold Moeller, individually
R X TECHNOLOGY, INC.
By: By: /s/ DONALD REX GAY
--------------------------- -----------------------------------------
Secretary President
SHAREHOLDERS OF R X TECHNOLOGY, INC.
/s/ DONALD REX GAY
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
13
<PAGE>
EXHIBIT "A"
To Agreement and Plan of Reorganization
List of RXT Stockholders
------------------------
<TABLE>
<CAPTION>
Valley Shares to be
Name RXT Shares Issued at Closing
- ---- ---------- -------------------
<S> <C> <C>
Donald Rex Gay 2,000,000
Kelvin L. Bright 2,000
Christopher Torbit 1,000
Mr. & Mrs. John Colburn 1,600
Harvey Sanders 1,000
5,000,000
<CAPTION>
Options to be
Granted at Closing
------------------
<S> <C>
Donald Rex Gay 3,000,000
Employee Options 1,000,000
</TABLE>
<PAGE>
RX TECHNOLOGY, INC.
LIST OF SHAREHOLDERS
<TABLE>
<CAPTION>
SHAREHOLDER NAME RXT SHARES VALLEY SHARES OPTIONS
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. DONALD REX GAY 2,000,000 4,933,000 2,959,836
P.O. BOX 8569
MANDEVILLE, LOUISIANA 70470
504 727-9412 DAY
504 626-4979 EVENING
504 626-4575 FAX
2. KELVIN L. BRIGHT & KAREN E. BRIGHT 2,000 4,933 2,960
225 SHERIDAN ROAD
FORT BLISS, TX 79906
915 564-0699 HOME
915 568-0246 FAX
3. JOHN W. COBURN & HELEN L. COBURN 1,000 2,467 1,480
11342 MEADOWSIDE DRIVE
ST. LOUIS, MO 63146
314 994-9418 DAY
314 595-4343 EVENING
314 993-6895 FAX
314 595-2199 OFFICE FAX
4. HARVEY SANDERS 1,200 2,960 1,776
201 COSTA BELLA DRIVE
AUSTIN, TX 78734
512 728-9760 HOME
512 728-1020 FAX
5. CHRISTOPHER TORBIT 400 987 592
8745 LITZSINGER
BRENTWOOD, MO 63144
314-963-4433 PHONE
6. RX TECHNOLOGY EUROPE 22,539 55,593 33,356
DRAYCOTT HALL
DERWENT STREET
DRAYCOTT
DERBYSHIRE
DE7 3NF
UNITED KINGDOM
44(1) 332-875-666 PHONE
44(1) 332-875-547 FAX
=========================================================
TOTAL 2,027,139 5,000,000 3,000,000
</TABLE>
<PAGE>
EXHIBIT 3.0
SECRETARY OF STATE
[THE GREAT SEAL OF THE STATE OF NEVADA]
CORPORATE CHARTER
I, DEAN HELLER, the duly elected and qualified Nevada Secretary of State, do
hereby certify that VALLEY EXCAVATION & TRUCKING, INC. did on SEPTEMBER 26,
1997 file in this office the original Articles of Incorporation; that said
Articles are now on file and of record in the office of the Secretary of
State of the State of Nevada, and further, that said Articles contain all the
provisions required by the law of said State of Nevada.
IN WITNESS WHEREOF, I have hereunto set
my hand and affixed the Great Seal of
State, at my office, in Carson City,
Nevada, on SEPTEMBER 29, 1997.
/s/ Dean Heller
Secretary of State
[THE GREAT SEAL OF THE STATE OF NEVADA] By /s/ Kelly R. Davenport
Certification Clerk
<PAGE>
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
SEP 26 1997 ARTICLES OF INCORPORATION
No. C20818-97 OF
----------- VALLEY EXCAVATION & TRUCKING, INC.
/s/ Dean Heller
DEAN HELLER, SECRETARY OF STATE
THE UNDERSIGNED natural person(s) of the age of eighteen (18) years
or more, acting as incorporator(s) of a corporation under the Nevada
Business Corporation Act, adopt(s) the following Articles of
Incorporation for such corporation.
ARTICLE I - NAME
The name of the Corporation is VALLEY EXCAVATION & TRUCKING, INC.
ARTICLE II - INITIAL OFFICE AND RESIDENT AGENT
The Corporation Trust Company of Nevada
One East First Street
Reno, Nevada 89501
ARTICLE III - STOCK
The aggregate number of shares which this corporation shall have
authority to issue is 24,000,000 shares of Common Stock having a par
value of $.001 per share and 1,000,000 shares of Preferred Stock having a
par value of $.001 per share. All Common Stock of the corporation shall
be of the same class, and shall have the same rights and preferences. The
corporation shall have authority to issue the shares of Preferred Stock
in one or more series with such rights, preferences and designations as
determined by the Board of Directors of the corporation. Fully-paid stock
of this corporation shall not be liable to any further call or assessment.
ARTICLE IV - DIRECTORS
Members of the governing board of the Corporation are directors and
the number of directors constituting the initial
<PAGE>
Board of Directors of this corporation is one. The name and address of
each person who will serve as director until the first annual meeting of
stockholders or until any successor is elected and qualifies, is:
NAME ADDRESS
---- -------
Darold Moeller P.O. Box 43
Swan Valley, ID 83449
ARTICLE V - INCORPORATORS
The name and address of each incorporator is:
NAME ADDRESS
---- -------
Van Butler 311 South State, Suite 440
Salt Lake City, UT 84111
ARTICLE VI
LIABILITY OF DIRECTORS AND OFFICERS
No director or officer shall be personally liable to the Corporation
or its stockholders for monetary damages for any breach of fiduciary duty
by such person as a director or officer. Notwithstanding the foregoing
sentence, a director or officer shall be liable to the extent provided by
applicable law, (i) for acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law, or (ii) for the payment
of dividends in violation of NRS 78.300.
ARTICLE VII - CONTROL SHARE ACQUISITIONS
The provisions of NRS 78.378 to 78.3793 regarding control share
acquisitions do not apply to the Corporation.
ARTICLE VIII - COMBINATIONS WITH INTERESTED STOCKHOLDERS
The provisions of NRS 78.411 to 78.444 regarding combinations
-2-
<PAGE>
[PAGE MISSING]
-3-
<PAGE>
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On the 25th day of September, 1997 personally appeared before me,
Van Butler, who duly acknowledged to me that he signed the foregoing
Articles of Incorporation.
NOTARY PUBLIC
DIANE L. HOLBROOK
311 S. State St., Ste. 440 /s/ Diane L. Holbrook
Salt Lake City, UT 84111 ---------------------
[SEAL] NOTARY PUBLIC
My Commission Expires Residing at Salt Lake County
May 13, 2000
STATE OF UTAH
My Commission Expires:
5/13/2000
---------------------
CERTIFICATE OF ACCEPTANCE OF APPOINTMENT BY RESIDENT AGENT
The Corporation Trust Company of Nevada hereby accepts the
appointment as Resident Agent of the above named corporation.
The Corporation Trust Company of
Nevada
Dated: 9-26-97 By: /s/ Marcia J. Sunahara
---------- ------------------------
Marcia J. Sunahara
Asst. V.P.
-4-
<PAGE>
Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
VALLEY EXCAVATION AND TRUCKING, INC.
Pursuant to the applicable provisions of the Nevada Business Corporation
Act, Valley Excavation and Trucking, Inc. (the "Corporation") adopts the
following Articles of Amendment to its Articles of Incorporation:
FIRST: The present name of the Corporation is Valley Excavation and
Trucking, Inc.
SECOND: The following amendments to its Articles of Incorporation were
adopted by the board of directors and by majority consent of shareholders of
the Corporation in the manner prescribed by applicable law.
(1) The Article entitled ARTICLE I - NAME, is amended to read a follows:
ARTICLE I - NAME
The name of the corporation shall be: RX Technology Holdings, Inc.
(2) The Article entitled ARTICLE IV - STOCK, is amended to read as
follows:
ARTICLE IV - STOCK
COMMON. The aggregate number of common shares which this Corporation
shall have authority to issue is 50,000,000 shares of Common Stock having a
par value of $.001 per share. All common stock of the Corporation shall be of
the same class, common, and shall have the same rights and preferences.
Fully-paid common stock of this Corporation shall not be liable to any
further call or assessment.
PREFERRED. The Corporation shall be authorized to issue 1,000,000 shares
of Preferred Stock having a par value of $.001 per share to be issued in such
series and with such rights, preferences and designations as determined by
the board of directors.
THIRD: The number of shares of the Corporation outstanding and entitled
to vote at the time of the adoption of said amendment was 2,000,000.
FIFTH: The number of shares voted for such amendments was 1,619,000
(81%) and no shares were voted against such amendment.
DATED this 16th day of February, 2000.
<PAGE>
VALLEY EXCAVATION AND
TRUCKING, INC.
By: /s/ Darold Moeller
-----------------------------------
Darold Moeller, President/Secretary
VERIFICATION
STATE OF UTAH )
: ss
COUNTY OF SALT LAKE )
The undersigned being first duly sworn, deposes and states: that the
undersigned is the President of Valley Excavation and Trucking, Inc., that
the undersigned has read the Certificate of Amendment and knows the contents
thereof and that the same contains a truthful statement of the Amendment duly
adopted by the board of directors and stockholders of the Corporation.
/s/ Darold Moeller, President
------------------------------------
Darold Moeller, President
<PAGE>
STATE OF UTAH )
: ss
COUNTY OF SALT LAKE )
Before me the undersigned Notary Public in and for the said County and
State, personally appeared the President and Secretary of Valley Excavation
and Trucking, Inc., a Nevada corporation, and signed the foregoing Articles of
Amendment as his own free and voluntary acts and deeds pursuant to a
corporation resolution for the uses and purposes set forth.
IN WITNESS WHEREOF, I have set my hand and seal this 16th day of
February 2000.
/s/ Thomas G. Kimble
SEAL -----------------------------------
NOTARY PUBLIC
<PAGE>
EXHIBIT 3.2
ARTICLES OF INCORPORATION
OF
RXT, INC.
The undersigned adopts the following Articles of Incorporation under the
provisions of Chapter 78 of the Nevada Revised Statutes.
ARTICLE I
NAME
The name of the Corporation is RXT, INC.
ARTICLE II
PRINCIPAL OFFICE AND RESIDENT AGENT
The name and address of the resident agent is Michael E. Kearney, Suite
620, 300 South Fourth St., Las Vegas, Nevada.
ARTICLE III
NATURE OF BUSINESS
The Corporation may engage in any lawful activity.
ARTICLE IV
CAPITAL
A. NUMBER AND PAR VALUE.
The corporation is authorized to issue Two Thousand Five Hundred
(2,500) shares of capital stock which shall be common stock with a par value
of one dollar ($1.00) per share.
B. ASSESSMENT OF SHARES. The capital stock of the Corporation, after the
amount of the par value has been paid, is not subject to assessment to pay
the debts of the Corporation and no stock issued as fully paid up may ever be
assessed, and the Articles of Incorporation cannot be amended in this respect.
C. CUMULATIVE VOTING. Cumulative voting by any shareholder is denied.
ARTICLE V
GOVERNING BOARD
A. NAME. The members of the governing board of the corporation are
designated as Directors. The initial number of directors shall be one (1) in
number.
<PAGE>
NAME ADDRESS
William Lucero 5051 Duke Ellington, 296
Las Vegas, Nevada 89119
Initial Board of Directors will serve as Directors until the first
annual meeting of the shareholders, or until their successors are elected and
qualified.
B. INCREASE OR DECREASE OF DIRECTORS. The number of Directors of the
Corporation shall be not less than one nor more than five and may be
increased or decreased from time to time as is provided in the By-Laws of the
Corporation.
ARTICLE VI
DIRECTORS' AND OFFICERS' LIABILITY
No Director or, to the extent specified from time to time by the Board
of Directors, officer of the Corporation will be liable to the Corporation or
its stockholders for damages for breach of fiduciary duty as a director or
officer, excepting only (a) acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law, or (b) the payment of
dividends in violation of NRS 78.300. No amendment or repeal of this Article
VI applies to or has any effect on the liability or alleged liability of any
Director or officer of this Corporation for or with respect to any acts or
omissions of the Director or officer occurring prior to the amendment or
repeal, except as otherwise required by law.
ARTICLE VII
INCORPORATOR
The name and post office address of the incorporator signing these
Articles of Incorporation is as follows:
NAME ADDRESS
Michael E. Kearney 300 South Fourth St., #620
Las Vegas, Nevada 89101
ARTICLE VIII
PERIOD OF EXISTENCE
The Corporation has perpetual existence.
DATED: This 22nd day of December 1993.
/s/ Michael E. Kearney
-----------------------------------
MICHAEL E. KEARNEY
<PAGE>
STATE OF NEVADA )
)ss.
COUNTY OF CLARK )
On the 22nd day of December, 1993, personally appeared before me, a
Notary Public (or judge or other authorized person, as the case may be),
MICHAEL E. KEARNEY, personally known (or proved) to me to be the person whose
name is subscribed to the above instrument, and who acknowledged that he
executed the instrument.
/s/ Karen J. Wolf
-----------------------------------
KAREN J. WOLF
NOTARY PUBLIC
STATE OF NEVADA
SEAL COUNTY OF CLARK
KAREN J. WOLF
My Appointment Expires Jan. 31, 1996
<PAGE>
EXHIBIT 3.3
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
RXT, INC.
The undersigned, being the President and Secretary of RXT, INC., do
hereby certify:
1. That the Board of Directors of RXT, INC., by unanimous written
consent, adopted a resolution to amend the Articles of Incorporation of RXT,
INC. as follows:
RESOLVED, that Article I is hereby amended to read as follows:
The name of the corporation is R X TECHNOLOGY, INC.
2. The stockholders of the Corporation consented to and approved the
amendment by unanimous written consent in lieu of a meeting.
/s/ Donald R. Gay
-----------------------------------
DONALD R. GAY, President
/s/ Donald R. Gay
-----------------------------------
DONALD R. GAY, Secretary
STATE OF LOUISIANA )
)ss.
PARISH OF JEFFERSON )
On this 20th day of December, 1994, personally appeared before me, a
notary public, DONALD R. GAY, personally known (or proved) to me to be the
persons whose names are subscribed to the above instrument who acknowledged
that he/she executed the instrument.
/s/ Illegible
-----------------------------------
Notary Public
THOMAS M. xxxxx
NOTARY PUBLIC
My commission is
<PAGE>
Exhibit 3.4
[ILLEGIBLE] FORM SHOULD ACCOMPANY RESTATED ARTICLES (PURSUANT TO NRS 78.403 (B))
OF INCORPORATION FOR A NEVADA CORPORATION
1. Name of corporation R X TECHNOLOGY, INC.
------------------------------------------------------
2. Date of adoption of Amended and Restated Articles February 7, 1997
-------------------------
3. If the articles were amended, please indicate what changes have been made:
(a) Was there a name change? Yes / / No /X/ If yes, what is the new name?
Not in this Amendment. The name was changed on January 5, 1995.
-----------------------------------------------------------------------
(b) Did you change the resident agent? Yes / / No /X/ If yes, please
indicate the new resident agent and address.
Not in this Amendment. Change of R.A. was done February 26, 1996.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Please attach the resident agent acceprance certificate.
(c) Did you change the purposes? Yes / / No /X/ Did you add Banking? / /
Gaming? / / Insurance / / None of these? / /
(d) Did you change the capital stock? Yes /X/ No / / If yes, what is the
new capital stock?
25,000,000. 20,000,000 at par value .001 of common. 5,000,000 at par
-----------------------------------------------------------------------
value .001 Prererred.
-----------------------------------------------------------------------
(e) Did you change the directors? Yes / / No /X/ If yes, indicate the
change:
-----------------------------------------------------------------------
(f) Did you add the directors liability provision? Yes /X/ No / / Added
to orininal provisions
(g) Did you change the period of existence? Yes / / No /X/ If yes, what is
the new existence?
-----------------------------------------------------------------------
(h) If none of the above apply, and you have amended or modified the
articles, how did you change your articles?
Articles Third, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh,
-----------------------------------------------------------------------
Twelfth and Thirteenth have been changed.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
/s/ MICHAEL D. TAYLOR, Michael D. Taylor-vice-president 3/3/97
- ------------------------------------------------------------- ----------------
Name and Title of Officer Date
State of Nevada
---------------------)
County of Carson ) ss.
---------------------)
On March 3, 1997 personally appeared before me, a Notary Public,
-----------------------
Michael D. Taylor
- ------------------------------------------------------------- who acknowledged
that he/she executed the above instrument.
[SEAL] /s/ Bethany Graeser
-----------------------------------
Notary Public
<PAGE>
Filing Fee: Receipt #
[ILLEGIBLE] OF AMENDMENT OF ARTICLES OF CORPORATION
(After Issuance of Stock)
Filed by:
R X TECHNOLOGY, INC.
------------------------------------------------------------
Name of Corporation
The undersigned Rex D. Gay and
-------------------------------------------------------
President
Rex D. Gay of R X TECHNOLOGY, INC.
- --------------------------- --------------------------------------------
Secretary Name of Corporation
do hereby certify:
That the Board of Directors of said corporation at a meeting duly
convened, held on the 7th day of February 1997, adopted a resolution to
amend the original articles as follows:
Articles are amended in their entirety.
Restated Articles of Incorporation. See attached document.
The number of shares of the corporation outstanding and entitled to vote on
an amendment to the Articles of Incorporation is 2,500; that the said
change(s) and amendment have been consented to and approved by a majority
vote of the stockholders holding at least a majority class of stock
outstanding and entitled to vote thereon.
/s/ Donald Rex Gay
----------------------------
President
/s/ Donald Rex Gay
----------------------------
Secretary
State of Louisiana
--------------------)
[illegible] of Jefferson ) ss.
--------------------)
On February 25, 1997 personally appeared before me, a Notary Public,
-------------------
Rex D. Gay , who acknowledged
- -----------------------------------------------------
Names of Persons Appearing and Signing Document
that they executed the above instrument.
[ILLEGIBLE]
[SEAL] ----------------------------
Signature of Notary
<PAGE>
RESTATED ARTICLES OF INCORPORATION
of
R X TECHNOLOGY, INC.
(A Nevada Corporation)
FIRST. The name of this corporation is R X TECHNOLOGY, INC.
SECOND. The Corporation's REGISTERED OFFICE in the State of Nevada is
located at 251 Jeanell Dr., Suite 3 Carson City, Nevada 89706. The
Corporation's REGISTERED AGENT at this address is Corporate Advisory Service,
Inc.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Nevada. The Corporation may conduct all or any part of its
business, and may hold, purchase, mortgage, lease and convey real and
personal property, anywhere in the world. The Corporation shall have
perpetual duration.
FOURTH. The name and mailing address of the Incorporator is:
NAME MAILING ADDRESS
Michael E. Kearney 300 South Fourth St. Suite 620
Las Vegas, Nevada 89101
Upon the filing of this Certificate of Incorporation the powers of the
Incorporator shall terminate. The names and addresses of the person or
persons who are to serve as directors until the first annual meeting of
shareholders or until their successors are duly elected and have qualified
are:
NAME MAILING ADDRESS
William Lucero 2051 Duke Wellington, 296
Las Vegas, Nevada 89119
{CAPITAL STOCK}
FIFTH. The aggregate number of shares of capital stock of all classes
which the Corporation shall have authority to issue is TWENTY FIVE MILLION
(25,000,000), of which TWENTY MILLION (20,000,000) shares having a par value
of $.001 per share shall be of a class designated "COMMON STOCK" (or "Common
Shares" and FIVE MILLION (5,000,000) shares having a par value of $.001 per
share shall be of a class designated "PREFERRED STOCK" (OR "PREFERRED
SHARES"). All shares of the Corporation shall be issued for such
consideration or considerations as the Board of Directors may from time to
time determine. The designations, voting powers, preferences, optional or
other special rights and qualifications, limitations, or restrictions of the
above classes of stock shall be as follows:
I. PREFERRED STOCK
(a) Issuance in Class and Series. Shares of Preferred Stock may be
issued in one or more classes or series at such time or times as the Board of
Directors may determine. All shares of any one series shall be of equal rank
and identical in all respects.
(b) Authority of Board for Issuance. Authority is hereby expressly
granted to the Board of Directors to fix from time to time, by resolution or
resolutions providing for the issuance of any class or series of Preferred
Stock, the designation of such classes and series and the powers, preferences
and rights of the shares of such classes and series, and the qualifications,
limitations or restrictions thereof, including the following:
<PAGE>
1. The distinctive designation and number of shares comprising
such class or series, which number may (except where otherwise provided by
Board of Directors in creating such class or series) be increased or
decreased (but not below the number of shares then outstanding) from time to
time by action of the Board of Directors;
2. The rate of dividend, if any, on the shares of that class or
series, whether dividends shall be cumulative and, if so, from which date or
dates, the relative rights of priority, if any, of payment of dividends on
shares of that class or series over shares of any other class or series;
3. Whether the shares of that class or series shall be
redeemable at the option of the Corporation or of the holder of the shares or
of another person or upon the occurrence of a designated event and, if so,
the terms and conditions of such redemption, including the date or dates upon
or after which they shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under difference conditions and
different redemption dates;
4. Whether that class or series shall have a sinking fund for
the redemption or purchase of shares of that class or series and, if so, the
terms and amounts payable into such sinking fund;
5. The rights to which the holders of the shares of that series
shall be entitled in the event of voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up of the Corporation,
relative rights of priority; if any, of payment of shares of that class or
series;
6. Whether the shares of that class or series shall be
convertible into or exchangeable for shares of stock of any class or any
other series of Preferred Stock and, if so, the terms and conditions of such
conversion or exchange, including the method of adjusting the rates of
conversion or exchange in the event of a stock split, stock dividend,
combination of shares or similar event;
7. Whether the issuance of any additional shares of such class
or series, or of any shares of any other class or series, shall be subject to
restrictions as to issuance, or as to the powers, preferences or rights of
any such other class or series;
8. Any other preferences, privileges and powers, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of such class or series, as the Board of
Directors may deem advisable and as shall not be inconsistent with the
provisions of the Corporation's Charter, as from time to time amended, and to
the full extent now or hereinafter permitted by the laws of Nevada.
(c) Dividends. Payments of dividends shall be follows:
1. The holders of Preferred Stock of each class or series, in
preference to the holders of Common Stock, shall be entitled to receive, as
and when declared by the Board of Directors out of funds legally available
therefore, all dividends, at the rate for such class or series fixed in
accordance with the provisions of this FIFTH Article and no more;
2. Dividends may be paid upon, or declared or set aside for, any
class or series of Preferred Stock in preference to the holders of any other
class or series of Preferred Stock in the manner determined by the
resolutions of the Board of Directors authorizing and creating such class or
series;
3. So long as any shares of Preferred Stock shall be
outstanding, in no event shall any dividend, whether in cash or in property,
be paid or declared nor shall any distribution be made, on the Common Stock,
nor shall any shares of Common Stock be purchased, redeemed or otherwise
acquired for value by the Corporation, unless all dividends on all cumulative
classes and series of Preferred Stock with respect to all past dividend
periods, and unless all dividends on all classes and series of Preferred Stock
<PAGE>
for the then current dividend period shall have been paid or declared, and
provided for, and unless the Corporation shall not be in default with respect
to any of its obligations with respect to any sinking fund for any class or
series of Preferred Stock. The foregoing provisions of this subparagraph (3)
shall not, however, apply to any dividend payable in Common Stock;
4. No dividend shall be deemed to have accrued on any share of
Preferred Stock of any class or series with respect to any period prior to
the date of the original issue of such share or the dividend payment date
immediately preceding or following such date of original issue, as may be
provided in the resolutions of the Board of Directors creating such class or
series. Preferred Stock shall not be entitled to participate in any dividends
declared and paid on Common Stock, whether payable in cash, stock or
otherwise. Accruals of dividends shall not pay interest.
(d) Dissolution or Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution of assets or winding-up of the
Corporation, the holders of the shares of each class or series of Preferred
Stock then outstanding shall be entitled to receive out of the net assets of
the Corporation, but only in accordance with the preferences, if any,
provided for such series, before any distribution or payment shall be made to
the holders of Common Stock, the amount per share fixed by the resolution or
resolutions of the Board of Directors to be received by the holder of each
such share on such voluntary or involuntary liquidation, dissolution,
distribution of assets or winding-up, as the case may be. If such payment
shall have been made in full to the holders of all outstanding Preferred
Stock of all classes and series, or duly provided for, the remaining assets
of the Corporation shall be available for distribution among the holders of
Common Stock as provided in this FIFTH Article. If upon any such liquidation,
dissolution, distribution of assets or winding-up, the net assets of the
Corporation available for distribution amount the holders of any one or more
classes or series of Preferred Stock which (i) are entitled to a preference
over the holders of Common Stock upon such liquidation, dissolution,
distribution of assets or winding-up, and (ii) rank equally in connection
therewith, shall be insufficient to make payment for the preferential amount
to which the holders of such shares shall be entitled, then such assets shall
be distributed among the holders of each series of Preferred Stock ratably
according to the respective amounts to which they would be entitled in
respect of the shares held by them upon such distribution if all amounts
payable on or with respect to such shares were paid in full. Neither the
consolidation nor merger of the Corporation, nor the exchange, sale, lease or
conveyance (whether for cash, securities or other property) of all,
substantially all or any part of its assets, shall be deemed a liquidation,
dissolution, distribution of assets or winding-up of the Corporation within
the meaning of this provision.
(e) Voting Rights. Except to the extent otherwise required by law or
provided in the resolution of the Board of Directors adopted pursuant to
authority granted in this FIFTH Article, the shares of Preferred Stock shall
have no voting power with respect to any matter whatsoever. The Board of
Directors may determine whether the shares of any class or series shall have
limited, contingent, full or no voting rights, in addition to the voting
rights provided by law and, if so, the terms of such voting rights. Whenever
holders of Preferred Stock are entitled to vote on a matter, each holder of
record of Preferred Stock shall be entitled to one vote for each share
standing in his name on the books of the Corporation and entitled to vote.
II. COMMON STOCK
(a) Issuance. The Common Stock may be issued from time to time in one or
more classes or series in any manner permitted by law, as determined by the
Board of Directors and stated in the resolution or resolutions providing for
issuance thereof. Each class or series shall be appropriately designated,
prior to issuance of any shares thereof, by some distinguishing letter,
number or title. All shares of each class or series of Common Stock shall be
alike in every particular and shall be of equal rank and have the same power,
preferences and rights, and shall be subject to the same qualifications,
limitations and restrictions, if any.
<PAGE>
(b) Voting Powers. The Common Stock may have such voting powers (full,
limited, contingent or no voting powers), such designations, preferences and
relative, participating, optional or other special rights, and be subject to
such qualifications, limitations and restrictions, as the Board of Directors
shall determine by resolution or resolutions. Unless otherwise resolved by
the Board of Directors at the time of issuing Common Shares, (i) each Common
Stock share shall be of the same class, without any designation, preference or
relative, participating, optional or other special rights, and subject to no
qualification, limitation or restriction, and (ii) Common Shares shall have
unlimited voting rights, including but not limited to the right to vote in
elections for directors, and each holder of record of Common Shares entitled
to vote shall have one vote for each share of stock standing in his name on
the books of the Corporation and entitled to vote, except that in the
election of directors each holder shall have as many votes for each share held
by him as there are directors.
(c) Dividends. After the requirements with respect to preferential
dividends, if any, on Preferred Stock, and after the Corporation shall have
complied with all requirements, if any, with respect to the setting aside of
sums in a sinking fund for the purchase or redemption of shares of any class
or series of Preferred Stock, then and not otherwise, the holders of Common
Stock shall receive, to the extent permitted by law, such dividends as may be
declared from time to time by the Board of Directors.
(d) Dissolution or Liquidation. After distribution in full of the
preferential amount, if any, to be distributed to the holders of Preferred
Stock, in the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets or winding-up of the Corporation, the holders of
Common Stock shall be entitled to receive all the remaining assets of the
Corporation of whatever kind available for distribution to shareholders
ratably in proportion to the number of shares of Common Stock respectively
held by them.
III. GENERAL MATTERS
(a) Capital. The portion of the consideration received by the
Corporation upon issuance of any of its shares that shall constitute
"capital" within the meaning of the General Corporation Law of Nevada shall
be (1) in the case of par-value shares, the PAR VALUE thereof, and (2) in the
case of SHARES WITHOUT PAR VALUE, the stated value of such shares as
determined by the Board of Directors at the time of issuance; PROVIDED, that
if no stated value is determined at the time that shares without par value
are issued, the entire consideration to be received for the shares shall
constituted capital.
(b) Fully Paid and Non assessable. Any and all shares of Common or
Preferred Stock issued by the Corporation for which not less than the portion
of the consideration to be received determined to be "capital" has been paid
to the Corporation, provided the Corporation has received a promissory note or
other binding legal obligation of the purchaser to pay the balance thereof,
shall be deemed fully paid and non assessable shares.
(c) Amendment of Shareholder Rights. So long as no shares of any class
or series established by resolution of the Board of Directors have been
issued, the voting rights, designations, preferences and relative, optional,
participating or other rights of these shares may be amended by resolution of
the Board of Directors.
(d) Status of Certain Shares. Shares of Preferred or Common Stock which
have redeemed, converted, exchanged, purchased, retired or surrendered to the
Corporation, or which have been reacquired in any other manner, shall have
the status of authorized and unissued shares and may be reissued by the Board
of Directors as shares of the same or any other series, unless otherwise
provided herein or in the resolution authorizing and establishing the shares.
(e) Denial of Preemptive Rights. No holder of any shares of the
Corporation shall be entitled as a matter of right to subscribe for or
purchase any part of any new or additional issue of stock of any class or of
securities convertible into or exchangeable for stock of any class, whether
now or hereafter authorized or whether issued for money, for a consideration
other than money, or by way of dividend.
<PAGE>
(f) Convertibility. Common Shares or other shares of any class or
series, and notes, debentures, bonds and other debt instruments issued by the
Company or any affiliated company, may be made convertible into or
exchangeable for, at the option of the Corporation or the holder or upon the
occurrence of a specified event, shares of any other class or classes or any
other series of the same or any other class or classes of shares of the
Corporation, at such price or prices or at such rate or rates of exchange and
with such adjustments as shall be set forth in the resolution or resolutions
providing for the issuance of such convertible or exchangeable shares adopted
by the Board of Directors.
(g) Redeemability. Common Shares may be made redeemable at the option of
the Corporation or upon the occurrence of a designated event, if and to the
extent now or subsequently allowed by the General Corporation Law of Nevada,
as such law may subsequently be amended, and the terms and conditions of
redemption, including the date or dates upon or after which they shall be
redeemable, the amount per share payable in case of redemption and any
variance in the amount or amounts payable, among other terms, conditions and
limitations which may be fixed and established by the Board of Directors in
the resolution or resolutions authorizing the issuance of redeemable Common
Shares.
{VOTING OF SHAREHOLDERS}
SIXTH. The following provisions are hereby adopted for the purpose of
regulating certain matters relating to the voting of shareholders of the
Corporation:
(a) Definitions. Whenever the term "TOTAL VOTING POWER" appears in this
Charter, it shall mean all shares of the Corporation entitled to vote at a
meeting or on a question presented for shareholder approval, and of every
class or series of shares entitled to vote by class or series. Whenever the
term "VOTES CAST" appears in this Charter, it shall mean the total number of
voting shares out of the total voting power which were unequivocally voted in
favor of or against a director standing for election or a matter presented
for shareholder approval at a legal meeting which commenced with a quorum.
(b) Quorum. A majority of the total voting power, or where a separate
vote by class or series is required, a majority of the voting shares of each
such class or series, represented in person or by proxy, shall constitute a
quorum at any meeting of the Corporation's shareholders.
(c) Vote Required. Any action to be taken by the Corporations's
shareholders at any valid meeting which commenced with a quorum shall require
the affirmative vote only of a majority of the votes cast, except where this
Charter or the Corporation's Bylaws then in effect requires the affirmative
vote of a higher proportion of the votes cast or requires the affirmative
vote of a proportion of the total voting power, and except where the Nevada
General Corporation Law specifically required the affirmative vote of a
majority of all the votes entitled to be cast. Directors shall be elected by
plurality vote. Abstentions from voting shall not be considered in the
tallying of votes. Nothing contained in this SIXTH Article shall affect the
voting rights of holders of any class or series of shares entitled to vote as
a class or by series. The Bylaws may provide for the vote necessary at any
adjournment of a duly called meeting for which a quorum was not obtained.
Cumulative voting shall not be allowed in voting for directors.
(d) Manner of Voting; Etc. The vote of shareholders may be taken at a
meeting by a show of hands or other method authorized by the Board of
Directors. Written ballots shall be used only upon authorization of the Board
of Directors or as provided in the Corporation's Bylaws. Cumulative voting
shall not be allowed in the election of directors.
(e) Action Without Meeting. Any action by the shareholders may be taken
by written consent, in lieu of a meeting and without prior notice or vote, by
the holders of a majority of the total voting power, except where a higher
proportion of the total voting power is expressly required herein to
authorize such action. The manner of obtaining any such written consent shall
be governed by the Corporation's Bylaws.
<PAGE>
(f) Shareholder Ratification. Any contract, transaction, or act of the
Corporation or of the directors which shall be ratified by vote of the
shareholders at any annual meeting, or at any special meeting called for such
purpose, or by means of a written consent of shareholders in lieu of a
meeting, shall so far as permitted by law be as valid and as binding as
though ratified by every shareholder of the Corporation.
{CONCERNING SHAREHOLDERS, DIRECTORS AND OFFICERS}
SEVENTH. The following provisions are hereby adopted for the purpose of
defining, limiting, and regulating the powers of the Corporation and of the
directors, officers and shareholders:
(a) Number of Directors. The number of Directors shall be as fixed in
the Bylaws. In the absence of such provision in the Bylaws, the Corporation
shall have one (1) Director. Directors shall be elected by plurality vote and
need not be elected by written ballot, except as provided in the Bylaws.
(b) Removal of Directors. A director of the Corporation, or the entire
Board of Directors of the Corporation, may be removed by the shareholders,
with or without cause, only upon the affirmative vote of the holders of not
less than two-thirds (2/3) of the total power, without considering the vote
of the director or directors sought to be removed.
As used herein, "CAUSE" for the removal of a director shall be deemed to
exist if (A) there has been a finding by not less than 2/3 of the entire
Board of Directors that cause exists and the directors have recommended
removal to the shareholders, or (B) any other cause defined by law.
(c) Removal of Officers and Employees. Unless the Bylaws otherwise
provide, any officer or employee of the Corporation may be removed at any
time with or without cause by the Board of Directors or by any committee or
superior officer upon whom such power of removal may be conferred by the
Bylaws or by authority of the Board of Directors, without prejudice, however,
to existing contractual rights.
(d) Corporate Opportunities. The officers, directors and other members of
management of the Corporation shall be subject to the doctrine of "CORPORATE
OPPORTUNITIES" only insofar as it applies to any business opportunity (i) of
a type falling within the regular business or operations of the Corporation,
or (ii) in which the Corporation has expressed an interest as determined from
time to time by the Corporation's Board of Directors as evidenced by
resolutions appearing in the Corporation's minutes. All such business
opportunities which come to the attention of the officers, directors, and
other members of management of the Corporation shall be disclosed promptly to
the Corporation and made available to it. The Board of Directors may reject
any business opportunity presented to it, and only thereafter may any
officer, director or other member of management avail himself of such
opportunity. The provisions of this paragraph (d) shall not be construed to
release any employee of the Corporation from any fiduciary duties which he
may have to Corporation.
{BYLAWS}
EIGHTH. The initial Bylaws of the Corporation shall be adopted by its
Board of Directors. The power to alter, amend or repeal the Bylaws or adopt
new Bylaws shall be vested in the Board of Directors, subject to the right of
the shareholders to alter, amend or repeal such Bylaws or adopt new Bylaws by
the affirmative vote of at least a majority of the total voting power. The
Bylaws may contain any provisions for the regulation and management of the
affairs of the Corporation not inconsistent with law or this Charter.
<PAGE>
{INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS}
NINTH. The following provisions are hereby adopted for the purpose of
defining and regulating certain rights of directors, officers and others in
respect of indemnification and related matters.
(a) Actions, Suits or Proceedings Other than by or in the Right of the
Corporation. The Corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation),
by reason of the fact that he is or was or has agreed to become a director,
officer, employee or agent of the Corporation, or is or was serving or has
agree to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges, expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf in connection with such
action, suit or proceeding and any appeal therefrom, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contenders or its equivalent,
shall not, of itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation or that, with respect to any
criminal proceeding, he had reasonable cause to believe that his conduct was
unlawful.
(b) Actions or Suits by or in the Right of the Corporation. The
Corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was or had agreed to become a
director, officer, employee or agent of the Corporation, or is or was serving
or has agreed to serve at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to
have been taken or omitted in such capacity, against costs, charges and
expenses (including amounts paid in settlement and attorney's fees) actually
and reasonably incurred by him or on his behalf in connection with the
defense of settlement of such action or suit and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation. No indemnification shall be
made in respect of any claim, issue, or matter as to which such person shall
have been adjudged by a court of competent jurisdiction after exhaustion of
all appeals therefrom to be liable to the Corporation or for amounts paid in
settlement to the Corporation unless and only to the extent that the court in
which such action or suit was brought or other court of competent
jurisdiction shall determine upon application that, despite the adjudication
of such liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such costs, charges
and expenses which the court shall deem proper.
(c) Indemnification for Costs, Charges and Expenses of Successful Party.
Notwithstanding the other provisions of this NINTH Article, to the extent
that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit or
proceeding referred to in Sections (a) and (b) of this NINTH Article, or in
defense of any claim, issue or matter therein, he shall be indemnified
against all costs, charges and expenses (including attorney's fees) actually
and reasonably incurred by him or on his behalf in connection therewith.
(d) Determination of Right to Indemnification. Any indemnification under
Sections (a) and (b) of this NINTH Article (unless ordered by a court) shall
be paid by the Corporation unless a determination is made (i) by a
disinterested majority of the Board of Directors who were not parties to such
action, suit or proceeding, or (ii) if such disinterested majority of the
Board of Directors so directs or cannot be obtained by independent legal
counsel in a written opinion, or (iii) by the shareholders, that
<PAGE>
indemnification of the director or officer is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in
Sections (a) and (b) of this NINTH Article.
(e) Advances of Costs, Charges and Expenses. Costs, charges and expenses
(including attorney's fees) incurred by a person referred to in Sections (a)
or (b) of this NINTH Article in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding, provided; however, that the payment of
such costs, charges and expenses incurred by a director or officer in his
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer) in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall
ultimately be determined that such director or officer is not entitled to be
indemnified by the Corporation as authorized in this Article, accompanied by
evidence satisfactory to the Board of Directors of ability to make such
repayment. Such costs, charges and expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the majority
of the Directors deems appropriate. The majority of the Directors may, in
the manner set forth above, and upon approval of such director, officer,
employee or agent of the Corporation, authorize the Corporation's counsel to
represent such person, in any action, suit or proceeding, whether or not the
Corporation is a party to such action, suit or proceeding.
(f) Procedure for Indemnification. Any indemnification under Sections
(a), (b) and (c), or advance of costs, charges and expenses under Section (e)
of this NINTH Article, shall be made promptly, and in any event within sixty
days, upon the written request of the director or officer. The right to
indemnification or advances as granted by this Article shall be enforceable
by the director or officer in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part, or if no disposition
thereof is made within sixty days. Such person's costs and expenses incurred
in connection with successfully establishing his right to indemnification, in
whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for the advance of costs, charges and expenses
under Section (e) of this NINTH Article where the required undertaking, if
any, has been received by the Corporation) that the claimant has not met the
standard of conduct set forth in Sections (a) or (b) of this NINTH Article,
but the burden of proving such defense shall be on the Corporation. Neither
the failure of the Corporation (including its Board of Directors, its
independent legal counsel and its shareholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Sections (a) or (b) of this NINTH Article nor the fact
that there has been an actual determination by the Corporation (including its
Board of Directors, its independent legal counsel and its shareholders) that
the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met
the applicable standard of conduct.
(g) Settlement. If in any action, suit or proceeding, including any
appeal, within the scope of Sections (a) or (b) of this NINTH Article, the
person to be indemnified shall have unreasonably failed to enter into a
settlement thereof, then, notwithstanding any other provision hereof, the
indemnification obligation of the Corporation to such person in connection
with such action, suit or proceeding shall not exceed the total of the amount
at which settlement could have been made and the expenses by such person
prior to the time such settlement could reasonably have been effected.
(h) Other Rights; Continuation of Right to Indemnification. The
indemnification provided by this Article shall not be deemed exclusive of any
other rights to which any director, officer, employee or agent seeking
indemnification may be entitled under any law (common or statutory),
agreement, vote of shareholders or disinterested directors or otherwise, both
as to action in his office capacity and as to action in another capacity
while holding office or while employed by or acting as agent for the
Corporation, and shall continue as to a person who has ceased to be a
director, officer, employee or agent, and shall inure to the benefit of the
estate, heirs, executors and administrators of such person. All rights to
indemnification under this Article shall be deemed to be a contract between
the Corporation and each
<PAGE>
director or officer of the Corporation who serves or served in such capacity
at any time while this NINTH is in effect. Any repeal or modification of this
NINTH Article or any repeal or modification of relevant provisions of the
General Corporation Law of Nevada or any other applicable laws shall not in
any way diminish any rights to indemnification of such director, officer,
employee or agent or the obligations of the Corporation arising hereunder.
This NINTH Article shall be binding upon any successor corporation to this
Corporation, whether by way of acquisition, merger, consolidation or
otherwise.
(i) Exceptions to Indemnification Right. Notwithstanding any other
language in this Charter, the Company shall not be obligated pursuant to the
terms of this Charter:
(1) CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance
expenses to any person with respect to proceedings or claims initiated or
brought voluntarily by him or her and not by way of defense, except with
respect to proceedings brought to establish or enforce a right to
indemnification under this Charter or any other statute or law or otherwise as
required under the General Corporation Law of Nevada, but such
indemnification or advancement of expenses may be provided by the Corporation
in specific cases if the Board of Directors finds it to be appropriate; or
(2) LACK OF GOOD FAITH. To indemnify any person for any expenses
incurred by him or her with respect to any proceeding instituted by him or
her to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by him or
her in such proceeding was not made in good faith or was frivolous;
(3) INSURED CLAIMS. To indemnify any person for expenses or
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement) which
have been paid directly to him or her by an insurance carrier under a policy
of officers' and directors' liability insurance maintained by the Corporation.
(4) CLAIMS UNDER SECTION 16(b). To indemnify any person for
expenses or the payment of profits arising from the purchase and sale by him
or her of securities in violation of Section 16(b) of the Securities Exchange
Act of 1934, as amended, or any similar or successor statute.
(j) Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was or has agreed to become a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him or on his
behalf in any such capacity, or arising out of his status as such, whether or
not the Corporation would have the power to indemnify him against such
liability under the provisions of this NINTH Article; provided, however, that
such insurance is available on acceptable terms, which determination shall be
made by a vote of a majority of the Directors.
(k) Savings Clause. If this NINTH Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation (i) shall nevertheless indemnify each director and officer of the
corporation and (ii) may nevertheless indemnify each employee and agent of
the Corporation, as to any cost, charge and expense (including attorney's
fees), judgment, fine and amount paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to
the full extent permitted by an applicable portion of this NINTH Article that
shall not have been invalidated and to the full extent permitted by
applicable law.
(l) Amendment. The affirmative vote of at least a majority of the total
voting power shall be required to amend, repeal, or adopt any provision
inconsistent with, the NINTH Article. No amendment, termination or repeal of
this NINTH Article shall affect or impair in any way the rights of any
director or officer of the Corporation to indemnification under the
provisions hereof with respect to any action, suit or
<PAGE>
proceeding arising out of, or relating to, any actions, transactions or facts
occurring prior to the final adoption of such amendment, termination or
appeal.
(m) Subsequent Legislation. If the General Corporation Law of Nevada is
amended after adoption of this Charter to further expand the indemnification
permitted to directors, officers, employees or agents of the Corporation,
then the Corporation shall indemnify such persons to the fullest extent
permitted by the General Corporation Law of Nevada, as so amended.
(n) Restriction. Notwithstanding any other provision hereof whatsoever,
no person shall be indemnified under this NINTH Article who is adjudged
liable for (i) a breach of duty to the Company or its shareholders that
resulted in personal enrichment to which he was not legally entitled, (ii)
intentional fraud or dishonesty or illegal conduct, or (iii) for any other
cause prohibited by applicable state or federal law, unless a court
determines otherwise.
{EXCLUSION OF DIRECTOR LIABILITY}
TENTH. As authorized by Section 78.037(1) of the General Corporation Law
of Nevada, no director or officer of the Company shall be personally liable
to the Company or any shareholder thereof for monetary damages for breach of
his fiduciary duty as a director or officer, except for liability for (a) any
acts or omissions which involve intentional misconduct, fraud or a knowing
violation of law, or (b) any payment of dividends in violation of Section
78.300 of the General Corporation Law of Nevada, as it now exists or may
hereafter be amended. This TENTH Article shall apply to a person who has
ceased to be a director or officer of the Company with respect to any breach
of fiduciary duty which occurred when such person was serving as a director
or officer. This TENTH Article shall not be construed to limit or modify in
any way any director's or officer's right to indemnification or other right
whatsoever under this Charter, the Company's By-laws or the General
Corporation Law of Nevada.
If the General Corporation Law of Nevada hereafter is amended to
authorize the further elimination or limitation of the liability of directors
or officers generally, then the liability of the Company's directors and
officers, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the General
Corporation Law of Nevada as so amended. Any repeal or modification of this
TENTH Article by the shareholders shall be prospective only and shall not
adversely affect any limitation on the personal liability of any director or
officer existing at the time of such repeal or modification. The affirmative
vote of at least a majority of the total voting power shall be required to
amend or repeal, or adopt any provision inconsistent with, this TENTH Article.
{AMENDMENT}
ELEVENTH. The Corporation reserves the right to amend, restate or repeal
any provision contained in this Charter, in the manner now or hereafter
prescribed by statute, and all rights conferred on shareholders are granted
subject to this reservation. The affirmative vote of a majority of the votes
cast is necessary to amend or restate provisions of this Charter, except such
provisions which expressly require a higher proportion of the votes cast or
require a proportion of the total voting power. The affirmative vote of a
majority of the total voting power is necessary to repeal this Charter in its
entirety and adopt a new charter in its stead.
{CERTAIN POWERS RESERVED TO DIRECTORS}
TWELFTH. The Corporation hereby reserves solely to the Board of Directors
the power and authority to borrow from time to time on behalf and in the name
of the Corporation and to determine the amount, terms, provisions and
conditions of any such borrowing; and in connection therewith to create,
issue and deliver instruments of indebtedness, including but not limited to
promissory notes, bonds, debentures and similar instruments containing such
terms, provisions and conditions as the Board of Directors deems necessary or
advisable in its sole discretion.
<PAGE>
In connection with the creation, issuance or delivery of any such form
or evidence of indebtedness, there is also reserved solely to the Board of
Directors the power and authority to create, enter into and execute
indentures of trust, conveyances, mortgages and similar instruments
containing such terms, provisions and conditions as the Board of Directors
deems necessary or advisable in its sole discretion; and, without need of
prior or subsequent shareholder approval, to pledge, mortgage or convey any
or all property, assets, rights, privileges or franchises now or hereafter
belonging to the Corporation in order to secure the payment when due of the
principal, interest and other charges due upon any such promissory notes,
bonds or debentures or other obligations or evidences of indebtedness of the
Corporation; and to create, issue and deliver additional amounts or series of
obligations under the terms of any such indenture, conveyance or mortgage
after creation and issuance of the original obligations thereunder. Any form
of indebtedness authorized by the Board of Directors may be made convertible
into Common Stock or other securities of the Corporation and may be made
redeemable at such time and on such terms (including the use of a sinking
fund or similar arrangement) as the Board of Directors deems necessary or
advisable in its sole discretion.
The affirmative vote of a majority of the total voting power shall be
required to amend, repeal or adopt any provision inconsistent with this
TWELFTH Article.
{INAPPLICABILITY OF CONTROL SHARE ACQUISITION STATUTE}
THIRTEENTH. The Corporation expressly elects not to be governed by
Sections 78.378 through 78.3793 of the General Corporation Law of Nevada
(concerning acquisitions of controlling interest in corporations) as it now
exists or may hereafter be amended, or any successor statute. The affirmative
vote of at least a majority of the total voting power shall be required to
amend, repeal or adopt any provision inconsistent with this THIRTEENTH
Article.
<PAGE>
EXHIBIT 3.5
BY-LAWS
OF
VALLEY EXCAVATION & TRUCKING, INC.
ARTICLE I - OFFICES
The registered office of the corporation in the State of Nevada shall be
located in the City of Reno, County of Washoe. The corporation may have its
principal office and such other offices, either within or without the State
of incorporation as the board of directors may designate or as the business
of the corporation may from time to time require.
ARTICLE II - STOCKHOLDERS
1. ANNUAL MEETING.
The annual meeting of the stockholders shall be held on such date as is
determined by the Board of Directors for the purpose of electing directors
and for the transaction of such other business as may come before the meeting.
2. SPECIAL MEETINGS.
Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the president or by the
directors, and shall be called by the president at the request of the holders
of not less than ten per cent of all the outstanding shares of the
corporation entitled to vote at the meeting.
3. PLACE OF MEETING.
The directors may designate any place, either within or without the State
unless otherwise prescribed by statute, as the place of meeting for any
annual meeting or for any special meeting called by the directors. A waiver
of notice signed by all stockholders entitled to vote at a meeting may
designate any place, either within or without the state unless otherwise
prescribed by statute, as the place for holding such meeting. If no
designation is made, or if a special meeting be otherwise called, the place
of meeting shall be the principal office of the corporation.
<PAGE>
4. NOTICE OF MEETING.
Written or printed notice stating the place, day and hour of the meeting
and, in case of a special meeting, the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than thirty
days before the date of the meeting, either personally or by mail, by or at
the direction of the president, or the secretary, or the officer or persons
calling the meeting, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the stockholder at his
address as it appears on the stock transfer books of the corporation, with
postage thereon pre-paid.
5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
For the purpose of determining stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or
stockholders entitled to receive payment of any dividend, or in order to make
a determination of stockholders for any other proper purpose, the directors
of the corporation may provide that the stock transfer books shall be closed
for a stated period but not to exceed, in any case, thirty days. If the stock
transfer books shall be closed for the purpose of determining stockholders
entitled to notice of or to vote at a meeting of stockholders, such books
shall be closed for at least ten days immediately preceding such meeting. In
lieu of closing the stock transfer books, the directors may fix in advance a
date as the record date for any such determination of stockholders, such date
in any case to be not more than thirty days and, in case of a meeting of
stockholders, not less than ten days prior to the date on which the
particular action requiring such determination of stockholders is to be
taken. If the stock transfer books are not closed and no record date is fixed
for the determination of stockholders entitled to notice of or to vote at a
meeting of stockholders, or stockholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on
which the resolution of the directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
stockholders. When a determination of stockholders entitled to vote at any
meeting of stockholders has been made as provided in this section, such
determination shall apply to any adjournment thereof.
BY-LAWS
Page 2
<PAGE>
6. VOTING LISTS.
The officer or agent having charge of the stock transfer books for shares
of the corporation shall make, at least ten days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting, or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of shares held by each, which list, for a period of
ten days prior to such meeting, shall be kept on file at the principal office
of the corporation or transfer agent and shall be subject to inspection by
any stockholder at any time during usual business hours. Such list shall also
be produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any stockholder during the whole time of the
meeting. The original stock transfer book shall be prima facie evidence as to
who are the stockholders entitled to examine such list or transfer books or
to vote at the meeting of stockholders.
7. QUORUM.
Unless otherwise provided by law, at any meeting of stockholders
one-third of the outstanding shares of the corporation entitled to vote,
represented in person or by proxy, shall constitute a quorum at a meeting of
stockholders. If less than said number of the outstanding shares are
represented at a meeting, a majority of the shares so represented may adjourn
the meeting from time to time without further notice. At such adjourned
meeting at which a quorum shall be present or represented, any business may
be transacted which might have been transacted at the meeting as originally
notified. The stockholders present at a duly organized meeting may continue
to transact business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum.
8. PROXIES.
At all meetings of stockholders, a stockholder may vote by proxy executed
in writing by the stockholder or by his duly authorized attorney in fact.
Such proxy shall be filed with the secretary of the corporation before or at
the time of the meeting.
9. VOTING.
Each stockholder entitled to vote in accordance with the terms and
provisions of the certificate of incorporation and these by-laws shall be
entitled to one vote, in person or by proxy, for each share of stock entitled
to vote held by such stockholders. Upon the demand of any stockholder, the
vote for
BY-LAWS
Page 3
<PAGE>
directors and upon any question before the meeting shall be by ballot. All
elections for directors shall be decided by plurality vote; all other
questions shall be decided by majority vote except as otherwise provided by
the Certificate of Incorporation or the laws of this State.
10. ORDER OF BUSINESS.
The order of business at all meetings of the stockholders, shall be as
follows:
1. Roll Call.
2. Proof of notice of meeting or waiver of notice.
3. Reading of minutes of preceding meeting.
4. Reports of Officers.
5. Reports of Committees.
6. Election of Directors.
7. Unfinished Business.
8. New Business.
11. INFORMAL ACTION BY STOCKHOLDERS.
Unless otherwise provided by law, any action required to be taken at a
meeting of the shareholders, or any other action which may be taken at a
meeting of the shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by the same
percentage of all of the shareholders entitled to vote with respect to the
subject matter thereof as would be required to take such action at a meeting.
ARTICLE III - BOARD OF DIRECTORS
1. GENERAL POWERS.
The business and affairs of the corporation shall be managed by its board
of directors. The directors shall in all cases act as a board, and they may
adopt such rules and regulations for the conduct of their meetings and the
management of the corporation, as they may deem proper, not inconsistent with
these by-laws and the laws of this State.
BY-LAWS
Page 4
<PAGE>
2. NUMBER, TENURE AND QUALIFICATIONS.
The number of directors of the corporation shall be as established by the
board of directors, but shall be no less than one. Each director shall hold
office until the next annual meeting of stockholders and until his successor
shall have been elected and qualified.
3. REGULAR MEETINGS.
A regular meeting of the directors, shall be held without other notice
than this by-law immediately after, and at the same place as, the annual
meeting of stockholders. The directors may provide, by resolution, the time
and place for the holding of additional regular meetings without other notice
than such resolution.
4. SPECIAL MEETINGS.
Special meetings of the directors may be called by or at the request of
the president or any director. The person or persons authorized to call
special meetings of the directors may fix the place for holding any special
meeting of the directors called by them. A director may attend any meeting by
telephonic participation at the meeting.
5. NOTICE.
Notice of any special meeting shall be given at least two days previously
thereto by written notice delivered personally, or by telegram or mailed to
each director at his business address. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail so addressed, with
postage thereon prepaid. If notice be given by telegram, such notice shall
be deemed to be delivered when the telegram is delivered to the telegraph
company. The attendance of a director at a meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
6. QUORUM.
At any meeting of the directors a majority shall constitute a quorum for
the transaction of business, but if less than said number is present at a
meeting, a majority of the directors present may adjourn the meeting from
time to time without further notice.
BY-LAWS
Page 5
<PAGE>
7. MANNER OF ACTING.
The act of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the directors.
8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES.
Newly created directorships resulting from an increase in the number of
directors and vacancies occurring in the board for any reason except the
removal of directors without cause may be filled by a vote of a majority of
the directors then in office, although less than a quorum exists. Vacancies
occurring by reason of the removal of directors without cause shall be filled
by vote of the stockholders. A director elected to fill a vacancy caused by
resignation, death or removal shall be elected to hold office for the
unexpired term of his predecessor.
9. REMOVAL OF DIRECTORS.
Any or all of the directors may be removed for cause by vote of the
stockholders or by action of the board. Directors may be removed without
cause only by vote of the stockholders.
10. RESIGNATION.
A director may resign at any time by giving written notice to the board,
the president or the secretary of the corporation. Unless otherwise specified
in the notice, the resignation shall take effect upon receipt thereof by the
board or such officer, and the acceptance of the resignation shall not be
necessary to make it effective.
11. COMPENSATION.
No compensation shall be paid to directors, as such, for their services,
but by resolution of the board a fixed sum and expenses for actual attendance
at each regular or special meeting of the board may be authorized. Nothing
herein contained shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
12. PRESUMPTION OF ASSENT.
A director of the corporation who is present at a meeting of the
directors at which action on any corporate matter is taken shall be presumed
to have assented to the action taken unless his dissent shall be entered in
the minutes of the meeting or unless he shall file his written dissent to such
BY-LAWS
Page 6
<PAGE>
action with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
secretary of the corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who voted in
favor of such action.
13. EXECUTIVE AND OTHER COMMITTEES.
The board, by resolution, may designate from among its members an
executive committee and other committees, each consisting of three or more
directors. Each such committee shall serve at the pleasure of the board.
ARTICLE IV - OFFICERS
1. NUMBER.
The officers of the corporation shall be a president, a secretary and a
treasurer, each of whom shall be elected by the directors. Such other
officers and assistant officers as may be deemed necessary may be elected or
appointed by the directors.
2. ELECTION AND TERM OF OFFICE.
The officers of the corporation to be elected by the directors shall be
elected annually at the first meeting of the directors held after each annual
meeting of the stockholders. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified or until his
death or until he shall resign or shall have been removed in the manner
hereinafter provided.
3. REMOVAL.
Any officer or agent elected or appointed by the directors may be removed
by the directors whenever in their judgment the best interests of the
corporation would be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
4. VACANCIES.
A vacancy in any office because of death, resignation, removal,
disqualification or otherwise, may be filled by the directors for the
unexpired portion of the term.
BY-LAWS
Page 7
<PAGE>
5. PRESIDENT.
The president shall be the principal executive officer of the corporation
and, subject to the control of the directors, shall in general supervise and
control all of the business and affairs of the corporation. He shall, when
present, preside at all meetings of the stockholders and of the directors. He
may sign, with the secretary or any other proper officer of the corporation
thereunto authorized by the directors, certificates for shares of the
corporation, any deeds, mortgages, bonds, contracts, or other instruments
which the directors have authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the directors
or by these by-laws to some other officer or agent of the corporation, or
shall be required by law to be otherwise signed or executed; and in general
shall perform all duties incident to the office of president and such other
duties as may be prescribed by the directors from time to time.
6. VICE-PRESIDENT.
In the absence of the president or in event of his death, inability or
refusal to act, a vice-president may perform the duties of the president, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the president. A vice-president shall perform such other
duties as from time to time may be assigned to him by the President or by the
directors.
7. SECRETARY.
The secretary shall keep the minutes of the stockholders' and of the
directors' meetings in one or more books provided for that purpose, see that
all notices are duly given in accordance with the provisions of these by-laws
or as required, be custodian of the corporate records and of the seal of the
corporation and keep a register of the post office address of each
stockholder which shall be furnished to the secretary by such stockholder,
have general charge of the stock transfer books of the corporation and in
general perform all duties incident to the office of secretary and such other
duties as from time to time may be assigned to him by the president or by the
directors.
8. TREASURER.
If required by the directors, the treasurer shall give a bond for the
faithful discharge of his duties in such sum and with such surety or sureties
as the directors shall determine. He shall have charge and custody of and be
responsible for all
BY-LAWS
Page 8
<PAGE>
funds and securities of the corporation; receive and give receipts for moneys
due and payable to the corporation from any source whatsoever, and deposit
all such moneys in the name of the corporation in such banks, trust companies
or other depositories as shall be selected in accordance with these by-laws
and in general perform all of the duties incident to the office of treasurer
and such other duties as from time to time may be assigned to him by the
president or by the directors.
9. SALARIES.
The salaries of the officers shall be fixed from time to time by the
directors and no officer shall be prevented from receiving such salary by
reason of the fact that he is also a director of the corporation.
ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS
1. CONTRACTS.
The directors may authorize any officer or officers, agent or agents, to
enter into any contract or execute and deliver any instrument in the name of
and on behalf of the corporation, and such authority may be general or
confined to specific instances.
2. LOANS.
No loans shall be contracted on behalf of the corporation and no
evidences of indebtedness shall be issued in its name unless authorized by a
resolution of the directors. Such authority may be general or confined to
specific instances.
3. CHECKS, DRAFTS, ETC.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the corporation, shall
be signed by such officer or officers, agent or agents of the corporation and
in such manner as shall from time to time be determined by resolution of the
directors.
4. DEPOSITS.
All funds of the corporation not otherwise employed shall be deposited
from time to time to the credit of the corporation in such banks, trust
companies or other depositaries as the directors may select.
BY-LAWS
Page 9
<PAGE>
ARTICLE VI - CERTIFICATES FOR SHARES AND THEIR TRANSFER
1. CERTIFICATES FOR SHARES.
Certificates representing shares of the corporation shall be in such form
as shall be determined by the directors. Such certificates shall be signed by
the president and by the secretary or by such other officers authorized by
law and by the directors. All certificates for shares shall be consecutively
numbered or otherwise identified. The name and address of the stockholders,
the number of shares and date of issue, shall be entered on the stock
transfer books of the corporation. All certificates surrendered to the
corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificate for a like number of shares shall have
been surrendered and canceled, except that in case of a lost, destroyed or
mutilated certificate a new one may be issued therefor upon such terms and
indemnity to the corporation as the directors may prescribe.
2. TRANSFERS OF SHARES.
(a) Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall
be the duty of the corporation to issue a new certificate to the person
entitled thereto, and cancel the old certificate; every such transfer shall
be entered on the transfer book of the corporation which shall be kept at its
principal office.
(b) The corporation shall be entitled to treat the holder of record of
any share as the holder in fact thereof, and, accordingly, shall not be bound
to recognize any equitable or other claim to or interest in such share on the
part of any other person whether or not it shall have express or other notice
thereof, except as expressly provided by the laws of this state.
ARTICLE VII - FISCAL YEAR
The fiscal year of the corporation shall end on the last day of such
month in each year as the directors may prescribe.
ARTICLE VIII - DIVIDENDS
The directors may from time to time declare, and the corporation may pay,
dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law.
BY-LAWS
Page 10
<PAGE>
The directors may, in their discretion, provide a corporate seal which
shall have inscribed thereon the name of the corporation, the state of
incorporation, and the words, "Corporate Seal".
ARTICLE X - WAIVER OF NOTICE
Unless otherwise provided by law, whenever any notice is required to be
given to any stockholder or director of the corporation under the provisions
of these by-laws or under the provisions of the articles of incorporation, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
ARTICLE XI - AMENDMENTS
These by-laws may be altered, amended or repealed and new by-laws may be
adopted by action of the Board of Directors.
Sept 26, 1997 /s/ Darold Moeller
- -------------------- -------------------------
Date Darold Moeller, Secretary
BY-LAWS
Page 11
<PAGE>
EXHIBIT 4.0
FORM OF WARRANT AGREEMENT
________________________________________________________________________
RX TECHNOLOGY HOLDINGS, INC.
AND
INTERWEST TRANSFER CO., INC.
WARRANT AGENT
________________________________________________________________________
<PAGE>
THIS WARRANT AGREEMENT (the "Agreement") is dated effective as of May
1, 2000, between RX Technology Holdings, Inc., a Nevada Corporation (the
"Company"), and Interwest Transfer Co., Inc., Salt Lake City, Utah ("Warrant
Agent").
WHEREAS, the Company proposes to distribute as a dividend with respect
to its Common Stock, and issue to the shareholders of record as of May 1, 2000
(the record date), 501,493 Common Stock Purchase Warrants ("Warrants");
WHEREAS, in conjunction with the potential exercise of the Warrants,
the Company anticipates the issuance of up to 501,493 shares of its Common Stock
("Warrant Shares");
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer and exchange of Warrant Certificates and
exercise of the Warrants.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, it is agreed that:
1. WARRANTS/WARRANT CERTIFICATES. Each Warrant will, in the future
during the period specified in the Warrant Certificate, upon fulfillment of the
conditions and subject to the terms set forth therein, entitle the holder (the
"Registered Holder" or, in the aggregate, the "Registered Holders") in whose
name the Warrant Certificate shall be registered on the books maintained by the
Warrant Agent to purchase one share of Common Stock on exercise thereof, subject
to modification and adjustment as provided in Section 8. Warrant Certificates
representing the right to purchase Warrant Shares shall be executed by the
Company's President and attested to by the Company's Secretary or Assistant
Secretary, or shall bear facsimile signatures of such officers, and shall be
delivered to the Warrant Agent upon execution of this Agreement for distribution
to the Company's shareholders pursuant to written instructions from the Company
to the Warrant Agent.
Subject to the provisions of Sections 3, 5, 6 and 8, the Warrant Agent
shall deliver Warrant Certificates in required whole number denominations to
Registered Holders in connection with any transfer or exchange permitted under
this Agreement. Except as provided in Section 6 hereof, no Warrant Certificates
shall be issued except (i) Warrant Certificates initially issued hereunder, (ii)
Warrant Certificates issued on or after the initial issuance date, upon the
exercise of any Warrants, to evidence the unexercised Warrants held by the
exercising Registered holder, and (iii) Warrant Certificates issued after the
initial issuance date, upon any transfer or exchange of Warrant Certificates or
replacements of lost or mutilated Warrant Certificates.
2. FORM AND EXECUTION OF WARRANT CERTIFICATES. The Warrant Certificates
shall be substantially in the form attached hereto as EXHIBIT A. The Warrant
Certificates shall be dated as of the date of their issuance, whether on initial
issuance, transfer or exchange or in lieu of mutilated, lost, stolen or
destroyed Warrant Certificates.
-2-
<PAGE>
Each Warrant Certificate shall be numbered serially with the
designation "A" appearing on each Warrant Certificate.
The Warrant Certificates shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. In the
event any officer of the Company who executed the Warrant Certificates shall
cease to be an officer of the Company before the date of issuance of the Warrant
Certificates or before countersignature and delivery by the Warrant Agent, such
warrant Certificates may be countersigned, issued and delivered by the Warrant
Agent with the same force and effect as though the person who signed such
Warrant Certificates had not ceased to be an officer of the Company.
3. EXERCISE. Subject to the provisions of Sections 4, 7 and 8, the
Warrants, when evidenced by a Warrant Certificate, may be exercised at a price
("Exercise Price") of $6.00 per share, in whole or in part, commencing on the
date of issuance ("Initial Exercise Date") and terminating on December 31, 2001,
unless extended by the Company's Board of Directors ("Exercise Period"), at any
time during such period that the Company's Registration Statement with respect
to the Warrant Shares is effective and current. The Company shall promptly
notify the Warrant Agent of the effectiveness of such Registration Statement,
any suspension of effectiveness and of any such extension of the Exercise
Periods. A Warrant shall be deemed to have been exercised immediately prior to
the close of business on the date ("Exercise Date") of the surrender for
exercise of the Warrant Certificate. The exercise form shall be executed by the
Registered Holder thereof or his attorney duly authorized in writing and will be
delivered together with payment to the Warrant Agent at 1981 East 4800 South,
Salt Lake City, Utah 84117, ("Corporate Office") or such other place as
designated by the Company, in cash or by official bank or certified check, of an
amount equal to the aggregate Exercise Price, in lawful money of the United
States of America.
Unless Warrant Shares may not be issued as provided herein, the person
entitled to receive the number of Warrant Shares deliverable on such exercise
shall be treated for all purposes as the holder of such Warrant Shares as of the
close of business on the Exercise date. In addition, the Warrant Agent shall
also, at such time, verify that all of the conditions precedent to the issuance
of Warrant Shares set forth in Section 4 have been satisfied as of the Exercise
Date. If any one of the conditions precedent set forth in Section 4 are not
satisfied as of the Exercise Date, the Warrant Agent shall request written
instructions from the Company as to whether to return the Warrant and pertinent
Exercise Price to the exercising Registered Holder or to hold the same until all
such conditions have been satisfied. The Company shall not be obligated to issue
any fractional share interests in Warrant Shares issuable or deliverable on the
exercise of any Warrant or scrip or cash therefore and such fractional shares
shall be of no value whatsoever. If more than one Warrant shall be exercised at
one time by the same Registered Holder, the number of full Shares which shall be
issuable on exercise thereof shall be computed on the basis of the aggregate
number of full shares issuable on such exercise.
Within thirty days after the Exercise Date and in any event prior to
the pertinent Expiration Date, the Warrant Agent shall cause to be issued and
delivered to the person or persons entitled to
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receive the same, a certificate or certificates for the number of Warrant Shares
deliverable on such exercise. No adjustment shall be made in respect of cash
dividends on Warrant Shares delivered on exercise of any Warrant. The Warrant
Agent shall promptly notify the Company in writing of any exercise and of the
number of Warrant Shares delivered and shall cause payment of an amount in cash
equal to the pertinent Exercise Price to be promptly made to the order of the
Company.
Upon the exercise of any Warrant, the Warrant Agent shall promptly
deposit the payment into a segregated account established by mutual agreement of
the Company and the Warrant Agent at a federally insured commercial bank. All
funds deposited in the escrow account will be disbursed on a weekly basis to the
Company once they have been determined by the Warrant Agent to be collected
funds. Once the funds are determined to be collected the Warrant Agent shall
cause the share certificate(s) representing the exercised Warrants to be issued.
Expenses incurred by the Warrant Agent while acting in the capacity as
Warrant Agent will be paid by the Company. These expenses, including delivery of
exercised share certificates to the shareholder, will be deducted from the
exercise fee submitted prior to distribution of funds to the Company.
A detailed accounting statement relating to the number of shares
exercised and the net amount of exercised funds remitted will be given to the
Company with the payment of each exercise amount. This will serve as an interim
accounting for the Company's use during the exercise periods. A complete
accounting will be made by the Warrant Agent to the Company concerning all
persons exercising Warrants, the number of shares issued and the amounts paid at
the completion of the Exercise Period.
The Company may deem and treat the Registered Holder of the Warrants at
any time as the absolute owner thereof for all purposes, and the Company shall
not be affected by any notice to the contrary. The Warrants shall not entitle
the holder thereof to any of the rights of shareholders or to any dividend
declared on the Common Stock unless the holder shall have exercised the Warrants
and purchased the shares of Common Stock prior to the record date fixed by the
Board of Directors of the Company for the determination of holders of Common
Stock entitled to such dividend or other right.
4. RESERVATION OF SHARES AND PAYMENT OF TAXES. The Company covenants
that it will at all times reserve and have available from its authorized Common
Stock such number of shares as shall then be issuable on the exercise of all
outstanding Warrants. The Company covenants that all Warrant Shares which shall
be so issuable shall be duly and validly issued, fully paid and nonassessable,
and free from all taxes, liens and charges with respect to the issue thereof.
The Company and the Warrant Agent acknowledge that the Company will be
required, pursuant to the Securities Act of 1933, as amended ("Act"), to deliver
to each Registered Holder, upon the exercise of Warrants and delivery of Warrant
Shares, a prospectus covering the issuance of the Warrant Shares which meets the
requirements of the Act, which prospectus must be a part of
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an effective registration statement under the Act at the time that the Warrant
is exercised. No Warrants may be exercised nor may Warrant shares be issued by
the Company's transfer agent or delivered by the Warrant Agent unless, on the
Exercise Date: (i) the Company has an effective registration statement covering
the issuance of the Warrant Shares under the Act; (ii) the Warrant Agent has
copies of the prospectus which is a part of such effective registration
statement and which the Warrant Agent hereby agrees to deliver with the Warrant
Shares; and (iii) the Warrant Shares may legally be issued and delivered to the
exercising Registered Holder under the securities laws of the state in which
such Registered Holder resides.
The Company agrees to use its best efforts to maintain, to the extent
required by the Act, an effective registration statement under the Act covering
the issuance of the Warrant Shares during the period the Warrants are
exercisable, but there may be times when no such registration statement will be
currently effective. The exercise of Warrants may be temporarily suspended
without liability to the Company during times when no such registration
statement is currently effective, or during times when, in the reasonable
opinion of the Board of Directors of the Company, such suspension is necessary
to preclude violation of any requirements of applicable law of regulatory bodies
having jurisdiction over the Company. If any Warrant would expire during such a
suspension, then if exercise of such Warrant is duly tendered before its
expiration, such Warrant shall be exercisable and exercised (unless the
attempted exercise is withdrawn) as of the first day after the end of such
suspension. The Company further agrees, from time to time, to furnish the
Warrant Agent with copies of the Company's prospectus to be delivered to
exercising Registered Holders, as set forth above.
If any shares of Common Stock to be reserved for the purpose of
exercise of Warrants hereunder require any other registration with or approval
of any government authority under any federal or state law before such shares
may be validly issued or delivered, then the Company covenants that it will in
good faith and as expeditiously as possible endeavor to secure such registration
or approval, as the case may be. No Warrant Shares shall be issued unless and
until any such registration requirements have been satisfied.
The Registered Holder shall pay all documentary, stamp or similar taxes
and other government charges that may be imposed with respect to the issuance of
the Warrants, or the issuance, transfer or delivery of any Warrant Shares on
exercise of the Warrants. In the event the Warrant Shares are to be delivered in
a name other than the name of the Registered Holder of the Warrant Certificate,
no such delivery shall be made unless the person requesting the same has paid to
the Warrant Agent the amount of any such taxes or charges incident thereto.
In the event the Warrant Agent ceases to also serve as the stock
transfer agent for the Company, the Warrant Agent is irrevocably authorized to
requisition the Company's new transfer agent from time to time for Certificates
of Warrant Shares required upon exercise of the Warrants, and the Company will
authorize such transfer agent to comply with all such requisitions. The Company
will file with the Warrant Agent a statement setting forth the name and address
of its new transfer agent, for shares of Common Stock or other capital stock
issuable upon exercise of the Warrants and of each successor transfer agent.
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5. REGISTRATION OF TRANSFER. The Warrants are NON-TRANSFERABLE and
Warrant Certificates may not be transferred in whole or in part unless permitted
by the Company. In any permitted transfer, the Warrant Certificates to be
exchanged shall be surrendered to the Warrant Agent at its Corporate Office. The
Company shall execute and the Warrant Agent shall countersign, issue and deliver
in exchange therefore the Warrant Certificate or Certificates which the holder
making the transfer shall be entitled to receive.
The Warrant Agent shall keep transfer books at its Corporate Office
which shall register Warrant Certificates and the transfer thereof. On due
presentment for registration of transfer of any Warrant Certificate at such
office, the Company shall execute and the Warrant Agent shall issue and deliver
to the transferee or transferees a new Warrant Certificate or Certificates
representing an equal aggregate number of Warrants. All Warrant Certificates
presented for registration of transfer or exercise shall be duly endorsed or be
accompanied by a written instrument or instruments or transfer in form
satisfactory to the Company and the Warrant Agent. At the time of exercise, the
transfer fee shall be paid by the Company. The Company may require payment of a
sum sufficient to cover any tax or other government charge that may be imposed
in connection therewith.
All Warrant Certificates so surrendered, or surrendered for exercise,
or for exchange in case of mutilated Warrant Certificates, shall be promptly
canceled by the Warrant Agent and thereafter retained by the Warrant Agent until
termination of the agency created by this Agreement. Prior to due presentment
for registration of transfer thereof, the Company and the Warrant Agent may
treat the Registered Holder of any Warrant Certificate as the absolute owner
thereof (notwithstanding any notations of ownership or writing thereon made by
anyone other than the Company or the Warrant Agent), and the parties hereto
shall not be affected by any notice to the contrary.
6. LOSS OR MUTILATION. On receipt by the Company and the Warrant Agent
of evidence satisfactory as to the ownership of and the loss, theft, destruction
or mutilation of any Warrant Certificate, the Company shall execute, and the
Warrant Agent shall countersign and deliver in lieu thereof, a new Warrant
Certificate representing an equal aggregate number of Warrants. In the case of
loss, theft or destruction of any Warrant Certificate, the individual requesting
issuance of a new Warrant Certificate shall be required to indemnify the Company
and Warrant Agent in an amount satisfactory to each of them. In the event a
Warrant Certificate is mutilated, such certificate shall be surrendered and
canceled by the Warrant Agent prior to delivery of a new Warrant Certificate.
Applicants for a new Warrant Certificate shall also comply with such other
regulations and pay such other reasonable charges as the Company may prescribe.
7. CALL OPTION. At any time, whether or not the Company's Registration
Statement with respect to the Warrant Shares is then current and effective, the
Company shall have the right and option with respect to each of the Warrants,
upon thirty (30) days written notice to each Warrantholder (or such longer
period as is required under any applicable law), to call, redeem and acquire
each of the Warrants which remain outstanding and unexercised at the date
specified for such redemption in such notice ("Redemption Date"), which
Redemption Date shall be 30 days after the
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date of such notice, for an amount equal to $.01 per Warrant; provided, however,
that if the Company's Registration Statement is then current and effective, the
Warrantholders shall have the right during the 30-day period immediately
following the date of such notice to exercise the Warrants in accordance with
the provisions of Section 3 hereof. In the event any Warrants are exercised
during such 30-day period, this call option shall be deemed not to have been
exercised by the Company as to the Warrants so exercised by the holders thereof.
Said notice of redemption shall require each Warrantholder to surrender to the
Company, on the Redemption Date, at the Corporate Office of the Warrant Agent
(or its successor), his certificate or certificates representing the Warrants to
be redeemed. Notwithstanding the fact that any Warrants called for redemption
have not been surrendered for redemption and cancellation on the Redemption
Date, after the Redemption Date, such Warrants shall be deemed to be expired and
all rights of the holders of such unsurrendered Warrants shall cease and
terminate, other than the right to receive the redemption price of $.01 per
Warrant for such Warrants, without interest provided, however, that such right
to receive the redemption price of $.01 per Warrant for such Warrants shall
itself expire on the Expiration Date of the Warrants. The Company shall notify
the Warrant Agent verbally, with confirmation in writing, of the call of the
Warrants and of the Redemption Date and the Company shall instruct the Warrant
Agent accordingly as to the procedures to be followed by the Warrant Agent in
connection with the redemption of the Warrants.
8. ADJUSTMENT OF EXERCISE PRICE AND SHARES. After each adjustment of
the Exercise Price pursuant to this Section 8, the number of shares of Common
Stock purchasable on the exercise of each Warrant shall be the number derived by
dividing such adjusted pertinent Exercise Price into the original pertinent
Exercise Price. The pertinent Exercise Price shall be subject to adjustment as
follows:
(a) In the event, prior to the expiration of the Warrants by exercise
or by their terms, the Company shall issue any shares of its Common Stock as a
share dividend or shall subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of such events, the
Exercise Price per share of Common Stock purchasable pursuant to the Warrants in
effect at the time of such action shall be reduced proportionately and the
number of shares purchasable pursuant to the Warrants shall be increased
proportionately. Conversely, in the event the Company shall reduce the number of
shares of its outstanding Common Stock by combining such shares into a smaller
number of shares, then, in such event, the Exercise Price per share purchasable
pursuant to the Warrants in effect at the time of such action shall be increased
proportionately and the number of shares of Common Stock at that time
purchasable pursuant to the Warrants shall be decreased proportionately. Any
dividend paid or distributed on the Common Stock in shares of any other class of
the Company or securities convertible into shares of Common Stock shall be
treated as a dividend paid in Common Stock to the extent that shares of Common
Stock are issuable on the conversion thereof.
(b) In the event the Company, at any time while the Warrants shall
remain unexpired and unexercised, shall sell all or substantially all of its
property, or dissolves, liquidates or winds up its affairs, prompt,
proportionate, equitable, lawful and adequate provision shall be made as part of
the
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terms of any such sale, dissolution, liquidation or winding up such that the
holder of a Warrant may thereafter receive, on exercise thereof, in lieu of each
share of Common Stock of the Company which he would have been entitled to
receive, the same kind and amount of any share, securities, or assets as may be
issuable, distributable or payable on any such sale, dissolution, liquidation or
winding up with respect to each share of Common Stock of the Company; provided,
however, that in the event of any such sale, dissolution, liquidation or winding
up, the right to exercise this Warrant shall terminate on a date fixed by the
Company, such date to be not earlier than 4:00 p.m., Eastern Time, on the 10th
day next succeeding the date on which notice of such termination of the right to
exercise the Warrants has been given by mail to the holders thereof at such
addresses as may appear on the books of the company.
(c) In the event, prior to the expiration of the Warrants by exercise
or by their terms, the Company shall determine to take a record of the holders
of its Common Stock for the purpose of determining shareholders entitled to
receive any share dividend or other right which will cause any change or
adjustment in the number, amount, price or nature of the shares of Common Stock
or other securities or assets deliverable on exercise of the Warrants pursuant
to the foregoing provisions, the Company shall give to the Registered Holders of
the Warrants at the addresses as may appear on the books of the Company at least
10 days prior written notice to the effect that it intends to take such a
record. Such notice shall specify the date as of which such record is to be
taken; the purpose for which such record is to be taken; and the number, amount,
price and nature of the Common Shares or other shares, securities or assets
which will be deliverable on exercise of the Warrants after the action for which
such record will be taken has been completed. Without limiting the obligation of
the Company to provide notice to the Registered Holders of the Warrant
Certificates of any corporate action hereunder, the failure of the Company to
give notice shall not invalidate such corporate action of the Company.
(d) No adjustment of the Exercise Price shall be made as a result of or
in connection with (i) the issuance of Common Stock of the Company pursuant to
options, warrants and share purchase agreements outstanding or in effect on the
date hereof, (ii) the establishment of additional option plans of the Company,
the modification, renewal or extension of any plan now in effect or hereafter
created, or the issuance of Common Stock, on exercise of any options pursuant to
such plans, in connection with compensation arrangements for officers, employees
or agents of the Company or any subsidiary, and the like or (iii) the issuance
of Common Stock in connection with an acquisition or merger of any type
(therefore, the antidilution provisions of this Section 8 will not apply in the
event a merger or acquisition is undertaken by the Company).
(e) This Agreement shall be incorporated by reference on the Warrant
Certificates.
Upon any adjustment of the exercise Price required to be made pursuant
to this Section 8, the Company within 30 days thereafter shall (A) cause to be
filed with the Warrant Agent a certificate setting forth the pertinent Exercise
Price after such adjustment and setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based, and (B) cause to
be mailed to each of the Registered Holders of the Warrant Certificates written
notice of such adjustment.
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<PAGE>
9. REDUCTION IN EXERCISE PRICE AT COMPANY'S OPTION. In addition to any
adjustments made to the Exercise Price pursuant to Section 8, the Company's
Board of Directors may, at its sole discretion, reduce the Exercise Price of the
Warrants in effect at any time either for the life of the Warrants or any
shorter period of time determined by the Company's Board of Directors. The
Company shall promptly notify the Warrant Agent and the Registered Holders of
any such reductions in the Exercise Price.
10. DUTIES. Compensation and Termination of Warrant Agent. The Warrant
Agent shall act hereunder as agent and in a ministerial capacity for the
Company, and its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not, by issuing and delivering Warrant Certificates or by
any other act hereunder, be deemed to make any representation as to the
validity, value or authorization of the Warrant Certificates or the Warrants
represented thereby or of the Common Stock or other property delivered on
exercise of any Warrant. The Warrant Agent shall not at any time be under any
duty or responsibility to any holder of the Warrant Certificates to make or
cause to be made any adjustment of the Exercise Price or to determine whether
any fact exists which may require any such adjustments.
The Warrant Agent shall not (i) be liable for any recital or statement
of fact contained herein or for any action taken or omitted by it in reliance on
any Warrant Certificate or other document or instrument believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties, (ii) be responsible for any failure on the part of the Company to
comply with any of its covenants and obligations contained in this Agreement
except for its own negligence or willful misconduct, or (iii) be liable for any
act or omission in connection with this Agreement except for its own negligence
or willful misconduct.
The Company agrees to indemnify the Warrant Agent against any and all
losses, expenses and liabilities which the Warrant Agent may incur in connection
with the delivery of copies of the Company's prospectus to exercising Registered
Holders upon the exercise of any Warrants as set forth in Section 4.
The Warrant Agent may at any time consult with counsel satisfactory to
it (which may be counsel for the Company) and shall incur no liability or
responsibility for any action taken or omitted by it in good faith in accordance
with the opinion or advice of such counsel. Any notice, statement, instruction,
request, direction, order or demand of the Company shall be sufficiently
evidenced by an instrument signed by its President and attested by its Secretary
or Assistant Secretary. The Warrant Agent shall not be liable for any action
taken or omitted by it in accordance with such notice, statement, instruction,
request, order or demand.
The Company agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse the Warrant Agent for its reasonable
expenses. The Company further agrees to indemnify the Warrant Agent against any
and all losses, expenses and liabilities, including judgments, costs and counsel
fees, for any action taken or omitted by the Warrant Agent in the
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execution of its duties and powers hereunder, excepting losses, expenses and
liabilities arising as a result of the Warrant Agent's negligence or willful
misconduct.
The Warrant Agent may resign its duties or the Company may terminate
the Warrant Agent and the Warrant Agent shall be discharged from all further
duties and liabilities hereunder (except liabilities arising as a result of the
Warrant Agent's own negligence or willful misconduct), on 30 days' prior written
notice to the other party. At least 15 days prior to the date such resignation
is to become effective, the Warrant Agent shall cause a copy of such notice of
resignation to be mailed to the Registered Holder of each Warrant Certificate.
On such resignation or termination the Company shall appoint a new warrant
agent. If the Company shall fail to make such appointment within a period of 30
days after it has been notified in writing of the resignation by the Warrant
Agent, then the registered holder of any Warrant Certificate may apply to any
court of competent jurisdiction for the appointment of a new warrant agent.
After acceptance in writing of an appointment of a new warrant agent is
received by the Company, such new warrant agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or
deed; provided, however, if it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same shall be done
at the expense of the Company and shall be legally and validly executed. The
Company shall file a notice of appointment of a new warrant agent with the
resigning Warrant Agent and shall forthwith cause a copy of such notice to be
mailed to the Registered Holder of each Warrant Certificate.
Any corporation into which the Warrant Agent or any new warrant agent
may be converted or merged, or any corporation resulting from any consolidation
to which the Warrant Agent or any new warrant agent shall be a party, or any
corporation succeeding to the corporate trust business of the Warrant Agent
shall be a successor Warrant Agent under this Agreement, provided that such
corporation is eligible for appointment as a successor to the Warrant Agent
under the provisions of the preceding paragraph. Any such successor Warrant
Agent shall promptly cause notice of its succession as Warrant Agent to be
mailed to the Company and to the Registered Holder of each Warrant Certificate.
No further action shall be required for establishment and authorization of such
successor warrant agent.
The Warrant Agent, its officers or directors and its subsidiaries or
affiliates may buy, hold or sell Warrants or other securities of the Company and
otherwise deal with the Company in the same manner and to the same extent and
with like effect as though it were not Warrant Agent. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for the Company or
for any other legal entity.
11. MODIFICATION OF AGREEMENT. The Warrant Agent and the Company may by
supplemental agreement make any changes or corrections in this Agreement (i)
that they shall deem appropriate to cure any ambiguity or to correct any
defective or inconsistent provision or mistake or error herein contained; or
(ii) that they may deem necessary or desirable and which shall not
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adversely affect the interests of the holders of Warrant Certificates; provided,
however, this Agreement shall not otherwise be modified, supplemented or altered
in any other respect except with the consent in writing of the registered
holders of Warrant Certificates representing not less than 51% of each class of
Warrants outstanding. Additionally, except as provided in Section 8, no change
in the number or nature of the Warrant Shares purchasable on exercise of a
Warrant, increase the purchase price therefore, or the acceleration of the
Expiration Date of a Warrant shall be made without the consent in writing of the
Registered Holder of the Warrant Certificate representing such Warrant, other
than such changes as are specifically prescribed or allowed by this Agreement.
12. NOTICES. All notices, demands, elections, opinions or requests
(however characterized or described) required or authorized hereunder shall be
deemed given sufficiently if in writing and sent by registered or certified
mail, return receipt requested and postage prepaid, or by tested telex, telegram
or cable to the last known address of the Company, the Warrant Agent and if to
the Registered Holder of a Purchase Warrant Certificate, at the address of such
holder as set forth on the books maintained by the Warrant Agent.
13. BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the Company, the Warrant Agent and their respective successors
and assigns, and the holders from time to time of Purchase Warrant Certificates.
Nothing in this Agreement is intended or shall be construed to confer upon any
other person any right, remedy or claim or to impose on any other person any
duty, liability or obligation.
14. FURTHER INSTRUMENTS. The parties shall execute and deliver any and
all such other instruments and shall take any and all other actions as may be
reasonably necessary to carry out the intention of this Agreement.
15. SEVERABILITY. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable, or inoperative
for any reason by any court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall not affect adversely
any other provision of this Agreement, which shall otherwise remain in full
force and effect and be enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited to the territory or
jurisdiction in which made.
16. WAIVER. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies as
provided by law. No delay or failure on the part of either party in the exercise
of any right or remedy arising from a breach of this Agreement shall operate as
a waiver of any subsequent right or remedy arising from a subsequent breach of
this Agreement. The consent of any party where required hereunder to act or
occurrence shall not be deemed to be a consent to any other action or
occurrence.
17. GENERAL PROVISIONS. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of the State of Nevada. Except as
otherwise expressly stated herein, time is of the essence in performing
hereunder. This Agreement embodies the entire agreement and
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understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, and this Agreement may not
be modified or amended or any term or provisions hereof waived or discharged
except in writing signed by the party against whom such amendment, modification,
waiver or discharge is sought to be enforced. The headings of this Agreement are
for convenience in reference only and shall not limit or otherwise affect the
meaning hereof. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
RX Technology Holdings, Inc.
By: _______________________________________
Donald Rex Gay, President
THE WARRANT AGENT:
Interwest Stock Transfer Co., Inc.
By: _______________________________________
Authorized Officer
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EXHIBIT 4.1
Exhibit A to Warrant Agency Agreement
Dated May 1, 2000
NUMBER
W-A________ _______ WARRANTS
VOID AFTER 5:00 P.M., UTAH TIME,
On December 31, 2001
SPECIMEN FORM OF
CERTIFICATE FOR WARRANTS
FOR THE PURCHASE OF COMMON STOCK, $.001 PAR VALUE, OF
RX TECHNOLOGY HOLDINGS, INC.
Incorporated Under The Laws Of The State of Nevada
CUSIP N(0)._________
THIS WARRANT CERTIFICATE CERTIFIES THAT, for value received,
__________________________________ or its registered assigns ("Holder"), is the
registered holder of the number of warrants (Warrants) set forth above, issued
by RX Technology Holdings, Inc.., a Nevada corporation ("Company").
This Warrant Certificate is issued under and subject to all of the
terms, provisions and conditions of the Warrant Agency Agreement, dated as of
May 1, 2000 ("Warrant Agreement"), between the Company and Interwest Transfer
Company, Inc. ("Warrant Agent"), to all of which terms, provisions and
conditions the holder of this Warrant consents by acceptance hereof. The Warrant
Agreement is incorporated herein by reference and made a part hereof, and
reference is made to the Warrant Agreement for a full description of the rights,
limitations of rights, obligations, duties and immunities of the Warrant Agent,
the Company and the Holders of the Warrant Certificates. Copies of the Warrant
Agreement are available for inspection at the offices of the Warrant Agent at
1981 East 4800 South, Suite 100, Salt Lake City, Utah 84117, or may be obtained
upon written request addressed to the Company at 2302 Parley's Way, Salt Lake
City, Utah 84109.
Each Warrant entitles the Holder thereof to purchase from the Company,
subject to the terms and conditions set forth hereinafter and in the Warrant
Agreement, one (1) fully paid and non-assessable share of common stock, $.001
par value, of the Company ("Common Stock") upon presentation and surrender of
this Warrant Certificate with the exercise form hereon duly completed and
executed, at any time prior to 5:00 p.m., Utah time, on December 31, 2001
("Exercise Period"),
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at the stock transfer office of the Warrant Agent or of any successor warrant
agent or, if there be no successor warrant agent, at the corporate offices of
the Company, and upon payment of $6.00 per share of Common Stock ("Purchase
Price") and any applicable taxes paid either in cash, or by certified or
official bank check, payable in lawful money of the United States of America to
the order of the Company. The Holder may exercise all or any whole number of
Warrants evidenced hereby. The Purchase Price and the number of shares of Common
Stock issuable upon exercise of a Warrant are subject to adjustment in certain
events specified in the Warrant Agreement.
The purchase rights represented by this Warrant Certificate shall not
be exercisable with respect to a fraction of a share of Common Stock. As to any
fractions of a share which would otherwise be purchasable on the exercise of a
Warrant, the Company shall pay the cash value thereof determined as provided in
the Warrant Agreement. In case of the purchase of less than all the shares
purchasable under this Warrant Certificate, the Company shall cancel this
Warrant Certificate upon the surrender hereof and shall execute and deliver a
new Warrant Certificate of like tenor for the balance of shares purchasable
hereunder.
This Warrant Certificate shall not entitle the holder hereof to any
voting rights or other rights as a shareholder of the Company, or to any other
rights whatsoever except the rights herein expressed and such as are set forth,
and no dividends shall be payable or shall accrue in respect of the Warrants
represented by this Warrant Certificate except to the extent that such Warrants
shall be exercised.
Upon 30 days' prior written notice, the Company may at any time redeem
all or any portion of the outstanding Warrants for $0.01 per Warrant.
The Warrants are exercisable immediately, provided that a current
prospectus relating to the shares of Common Stock issuable upon exercise hereof
is in effect and that such shares are qualified for sale or deemed to be exempt
from qualification, under applicable state securities laws. All Warrants not
theretofore exercised or redeemed shall expire at 5:00 p.m., Utah time on
December 31, 2001, and any Warrant not exercised by such time shall become void
unless extended by the Company.
This Warrant Certificate, with or without other Certificates, upon
presentation and surrender to the Warrant Agent, any successor warrant agent or,
in the absence of any successor warrant agent, at the corporate offices of the
Company, may be exchanged for another Warrant Certificate or Certificates
evidencing in the aggregate the same number of Warrants as the Warrant
Certificate or Certificates so surrendered, subject to such terms and conditions
set forth in the Warrant Agreement. If the Warrants evidenced by this Warrant
Certificate shall be exercised in part, the holder hereof shall be entitled to
receive upon surrender hereof another Warrant Certificate or Certificates
evidencing the number of Warrants not so exercised.
The Company shall not be required to issue or deliver any certificate
for shares of Common Stock or other securities upon the exercise of Warrants
evidenced by this Warrant Certificate until any tax which may be payable in
respect thereof by the Holder pursuant to the Warrant Agreement shall have been
paid.
2
<PAGE>
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Except as permitted by the Company, this Warrant Certificate and all
rights hereunder are nontransferable. If and only if permitted by the Company, a
transfer by the registered holder hereof in person or by its duly authorized
attorney, may be made on the books of the Warrant Agent upon surrender of this
Warrant Certificate, properly endorsed, to the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be signed by its President and has caused a facsimile of its corporate seal to
be imprinted hereon.
<TABLE>
<S> <C>
May ____, 2000 RX TECHNOLOGY HOLDINGS, INC.
Date of Issuance
By:_________________________________________
Donald Rex Gay, President
COUNTERSIGNED:
(Corporate Seal) Interwest Transfer Company, Inc.
As Warrant Agent
By:____________________________________
AUTHORIZED OFFICER__________________
</TABLE>
3
<PAGE>
EXHIBIT 4.2
SPECIMEN FORM OF
COMMON STOCK CERTIFICATE
<PAGE>
NOT VALID UNLESS COUNTERSIGNED BY TRANSFER AGENT
INCORPORATED UNDER THE LAWS OF THE STATE OF
NEVADA
NUMBER SHARES
[SEAL] RX TECHNOLOGY-SM- [SEAL]
HOLDINGS, INC.
CUSIP NO. 749768 30 0
AUTHORIZED COMMON STOCK: 50,000,000 SHARES
PAR VALUE: $.001
THIS CERTIFIES THAT
Is The Record Holder Of
Shares of RX TECHNOLOGY HOLDINGS, INC. Common
Stock transferable on the books of the Corporation in person or by duly
authorized attorney upon surrender of this Certificate properly endorsed.
This Certificate is not valid until countersigned by the Transfer Agent and
registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers
Dated:
/s/ Donald Rex Gay
_________________________________
PRESIDENT
[SEAL]
/s/ [Illegible]
_________________________________
SECRETARY
INTERWEST TRANSFER CO. INC. P.O. BOX 17136/SALT LAKE CITY, UTAH 64117
COUNTERSIGNED & REGISTERED _________________________________________________
COUNTERSIGNED Transfer Agent-Authorized Signature
<PAGE>
NOTICE: Signature must be guaranteed by a firm which is a member of a
registered national stock exchange, or by a bank (other than a saving
bank), or a trust company. The following abbreviations, when used in
the inscription on the face of this certificate, shall be construed as
though they were written out in full according to applicable laws or
regulations.
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entireties -----------------
JT TEN - as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants under Uniform Gift to Minors
in common Act
------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For Value Received, _____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OR ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________ Shares
of the capital stock represented by the within certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated ____________________
__________________________________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER
<PAGE>
Exhibit 10.0
Paramount's Kings Island
Outer Limits
<PAGE>
CONCESSION LEASE AGREEMENT
This Agreement, made and entered into this 15th day of February, 2000, by
and between PARAMOUNT PARKS INC., a Delaware corporation (herein called
"Paramount") and RX TECHNOLOGIES (herein called "Lessee").
WITNESSETH:
In consideration of the mutual covenants, terms, provisions and conditions
herein contained, the parties hereto represent, warrant and agree as follows:
ARTICLE I
LICENSE AND TERM
Paramount owns and operates a theme park known as Paramount's Kings Island
(the "Park") located in King's Island, Ohio.
Paramount hereby licenses to Lessee, and Lessee hereby licenses from
Paramount, the premises in the Park described in Exhibit A attached hereto
(herein called "Premises") together with ingress and egress for a period
commencing as of 1 April 2000 and ending 1 November 2000, which period is herein
called the "term" of this Lease Agreement.
Except as specifically set forth herein, no easements, appurtenances,
hereditaments, or other rights or interests whatsoever, are licensed or
otherwise granted hereby in the Park.
ARTICLE II
USE OF PREMISES
Lessee shall operate four (4) locations (herein called "Exhibit") on the
Premises for the purpose of producing and selling photographs of guests, as well
as providing the service of transmitting those pictures via e-mail, at the
Beast, Vortex, Outer Limits, and Taxi Jam rides as further set forth and
described on Exhibit A hereto. Lessee may not use the Premises for any other
purpose or conduct without the prior written consent of Paramount.
In case any doubt arises regarding the proper use of the Premises, Lessee
will submit a request in writing to Paramount for an interpretation and
determination of its rights under this Article. Paramount's decision thereon in
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<PAGE>
writing, based upon the operating plans and policies of the Park and based upon
the description of Lessee's Exhibit hereunder, shall be final; provided that
such determination shall be in the sole discretion of Paramount. Lessee shall
not take any action without receiving, or in contravention of, such
determination.
All items to be sold or given away and all items used in the preparation
of items so sold or given away at Lessee's Exhibit shall be of the highest
quality. Paramount reserves the right to prohibit Lessee from distributing items
which are not, in its sole discretion, of the highest quality or the
distribution of which, in its sole discretion, is not consistent with the
reputation of the Park.
All items sold by Lessee at the Park shall be sold at prices mutually
agreed upon by Paramount and Lessee.
ARTICLE III
CONSTRUCTION AND INSTALLATION OF EXHIBIT
Lessee shall plan, install and erect any additions to and improvements
upon the Premises required for the Exhibit. Such improvements shall be of the
highest quality, of sound and safe structure, and in accordance with the
policies, motifs, designs, and overall planning for the Park and the particular
theme areas thereof in which such improvements shall be installed. Improvements
made by Lessee shall be subject to Paramount's prior written approval.
Lessee agrees to promptly reimburse Paramount for all construction costs
incurred based on cost estimate mutually agreed upon by both parties.
Lessee agrees to incorporate to Paramount's satisfaction and at its own
cost new technology into the Exhibit as it becomes available in order to
maximize revenues.
ARTICLE IV
TITLE TO TRADE FIXTURES, IMPROVEMENTS, EQUIPMENT
Any improvements, other than trade fixtures installed on the Premises by
Lessee with Paramounts prior approval, made on or to the Premises, shall, upon
termination of this Lease Agreement, become a part of the Premises, title to
which shall be vested in Paramount. Upon the termination of this Lease
Agreement, Lessee shall have the right to remove all trade fixtures installed by
Lessee, title to which it has retained, from the Premises and shall, at its
expense,
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<PAGE>
repair and restore the Premises (including all improvements thereto) to the same
condition as before such fixtures were installed, ordinary wear and tear
excepted.
ARTICLE V
ALTERATIONS
Paramount reserves the right to make any changes, alterations,
improvements or additions near or around the Premises. Such changes may include
changes in the exterior design of any structures and changes in location of
streets, sidewalks and other outdoor facilities. Lessee shall not be entitled to
any damages or compensation on account of any of the foregoing.
Lessee shall make no alterations, additions or improvements to the
Premises or any structures thereon or add any improvements or equipment without
the prior written consent of Paramount.
ARTICLE VI
ACCESS OF PARAMOUNT
Paramount, its agents and employees retain the right to enter upon and
inspect all portions of the Premises and Exhibit at any reasonable time. In the
event entry is necessary and Lessee is not present to permit such entry,
Paramount may enter the Premises, forcibly or otherwise, without rendering
itself or its agents or employees liable to any claim or cause of action for
damages, except as provided below, and without affecting the obligations and
covenants of this Lease Agreement. In the event Paramount's action causes damage
to Lessee's property upon the Premises, Paramount shall repair or replace such
damaged property unless such action was necessitated by Lessee's negligence or
willful misconduct.
Paramount shall have the right to enter upon the Premises to accomplish
such work as may be necessary to preserve the walls, structure, or other parts
of the Premises or its contents from damage.
3
<PAGE>
ARTICLE VII
REPAIRS; MAINTENANCE
Paramount shall keep and generally maintain buildings and equipment on the
Premises in good condition and repair, keeping and maintaining the same in a
safe, sanitary and workable condition. Lessee shall, at its expense, maintain
all trade fixtures in a safe, sanitary and workable condition.
ARTICLE VIII
UTILITIES
Paramount shall provide all water and electricity required to operate the
Exhibit during the term of this Lease Agreement, provided that Paramount shall
not be responsible if circumstances beyond its control result in any disruption
in such services.
Lessee shall pay for administrative (support) services, which include, but
are not limited to, long distance telephone service, faxes and copying.
ARTICLE IX
PAYMENT AND FINANCIAL REPORTS
In consideration of the license and use of the Premises and the mutual
covenants, terms and provisions contained in this Lease Agreement, Paramount
shall be entitled to an amount equal to forty-five (45%) of Lessee's gross sales
at the park during the term of this lease agreement. Gross sales shall include
all monies and other things of value received by or paid to Lessee.
In determining gross receipts from the Exhibit's sales, there shall not be
included therein the amount of any sales tax, dishonored checks, credit card
charge backs or refunds made in the ordinary course of business. Paramount shall
remit any sales tax collected on sales of the Exhibit to the proper taxing
authority.
All sales made by Lessee at the Park shall be rung on a cash register
specified by Paramount and provided by Lessee. Lessee shall deliver all receipts
to the Park's Accounting Department at the close of each business day. On a
weekly basis and in accordance with the Park's general accounting schedule,
Paramount shall remit to Lessee, Lessee's
4
<PAGE>
share of the gross receipts made by Lessee less any amount owed to Paramount
hereunder. Any shortage of gross receipts shall be the responsibility of Lessee.
Paramount and its accountants shall have full access at reasonable times
to examine the books, cash registers, accounts, vouchers, working papers and
other records of Lessee pertaining to the operation of the Exhibit for the
purpose of checking and/or verifying the gross receipts of the Exhibit and any
other information pertinent to this Lease Agreement.
ARTICLE X
OPERATION OF EXHIBIT
Lessee shall operate its Exhibit using its best efforts, skill and
diligence in the conduct of its business, and Lessee shall maintain sufficient
materials, supplies and merchandise in stock, an adequate sales force, and
regulate its employees and servants so that they will be courteous and helpful
to the public. Paramount shall have the right to participate in the operation of
the Exhibit to the extent it deems necessary to ensure the quality of the
operation.
Lessee shall provide and employ the operating personnel to operate the
Exhibit, and Paramount and Lessee shall mutually determine the number of
personnel necessary to adequately operate the Exhibit. Lessee and Paramount
shall mutually determine the special skills required, if any, for such
personnel. Lessee agrees to train and supervise such personnel. Such personnel
shall be employed by Lessee. Paramount will attempt to inform Lessee of all
pertinent laws and regulations (labor and general), both Federal and State,
applicable to the Exhibit, provided that Paramount shall assume no obligation or
responsibility for Lessee's compliance with such laws or regulations regardless
of whether Paramount has or has not so informed Lessee. Lessee agrees to abide
by all such laws and regulations.
Lessee shall keep the Exhibit fully open for business during every day of
the week, including Sundays and legal holidays, in accordance with the hourly
and daily schedule of the Park to be issued by Paramount; Lessee shall operate
the Exhibit during the hours and on the days set forth in said schedule as
issued from time to time.
Lessee shall keep upon the Premises at all reasonable times at least one
qualified representative, authorized to represent and act for Lessee in matters
pertaining to the operation of, or other questions arising in connection with,
the Exhibit and Premises and shall keep Paramount informed in writing of the
identity of such persons. In the event
5
<PAGE>
Paramount so requests, Lessee shall promptly replace its qualified
representative with another individual reasonably suitable to Paramount.
Lessee and Paramount shall mutually agree upon costumes for all line
personnel. If the costumes are provided by Paramount, Lessee shall reimburse
Paramount for any loss of or damage to the costumes during the operating
seasons, ordinary wear and tear excepted. Lessee agrees to have its management
personnel and qualified representatives dress in the manner appropriate to the
Park's image.
Lessee agrees to have all personnel abide by Paramount's employment
policies, a copy of which will be provided to Lessee.
Lessee agrees not to employ nor seek to employ, directly or indirectly,
any employee of Paramount within 90 days of that employee's termination, without
the prior written consent of Paramount. If Lessee breaches this provision,
Lessee agrees to pay Paramount liquidated damages in the amount of twice the
annual salary of the employee (while employed by Paramount). Any former
Paramount employee hired by Lessee to operate the Exhibit must have a
satisfactory rehire status from Paramount.
The parties acknowledge that the equipment provided under this Lease
Agreement shall, at all times, be in the care, custody and control of Lessee.
Consistent with same, Lessee, at all times shall assume full responsibility and
liability for said equipment.
ARTICLE XI
ADVERTISING, PUBLICITY, SIGNS
Lessee shall not have the right to use, and shall not use, in any way or
for any purpose, the names or any similar name nor any characters, designs,
symbols, representations, figures, drawings, ideas, or other matter or materials
developed, held or owned by Paramount, except that during the term of this Lease
Agreement Lessee may use photographs or other representations of the Exhibit or
of the Park in connection with advertising or publicity; provided, however, that
Paramount shall have the right to approve any such photographs or
representations as set forth below. Prior to the exercise of any right set forth
in this Article, Lessee shall submit to Paramount all advertising copy, all data
in connection with its advertising programs, all art work and all other
advertising or promotional material together with a statement as to the use of
which the same will be put and the media through which, and the period of time
during
6
<PAGE>
which, it will be exhibited, distributed, and displayed. Lessee shall not use
any of the same without first obtaining in writing in each and every case the
specific approval of Paramount. Lessee shall affix any and all copyright notices
required by law in connection with the exercise of any rights set forth in this
Article.
ARTICLE XII
INSURANCE
Lessee shall, throughout the term of this Lease Agreement, maintain at its
own cost an insurance policy or policies indemnifying and holding harmless
Paramount, its officers, agents and employees from, for and against any loss or
liability whatsoever incurred as a result of any event occurring upon the
Premises or occurring by reason of Lessee's operations from or occupancy of the
Premises, whether such event, in the latter case, occurs on or off the Premises.
Paramount shall be named an additional insured in said policy or policies.
Said policies shall be written by responsible insurance companies
satisfactory to Paramount, and shall have minimum comprehensive general
liability limit for Product/Completed operations and for bodily injury of
$1,000,000 each occurrence and $1,000,000 each aggregate; property damage limit
of $1OO,000 each occurrence and $100,000 each aggregate; a minimum comprehensive
automobile liability limit of $250,000 each person and $250,000 each occurrence;
and minimum property damage limit of $100,000 each occurrence. Policies will
provide written notice to Paramount of cancellation or of any material change in
said policy 30 days in advance of the effective date thereof.
Lessee shall also insure any improvements and equipment it adds to the
Premises, and its contents, in accordance with standard fire and extended
coverage insurance policies then in effect for similar businesses, the proceeds
of which shall be payable to Paramount and Lessee in proportion to their
respective interests.
Lessee shall provide statutory Workman's Compensation Insurance, Social
Security, Unemployment Insurance, and such other benefits as may be required by
law to its employees. Lessee shall submit evidence thereof to Paramount and
display such certificates on the Premises as may be required by law.
ARTICLE XIII
TAXES AND ASSESSMENTS
7
<PAGE>
Paramount shall pay all real estate taxes, assessments, or levies against
the real property upon which the Premises is situated and shall be responsible
for the conformance of such improvements to all applicable laws and regulations.
Lessee shall pay all other taxes, licenses and permit fees in connection with
the Premises and operation of the Exhibit.
ARTICLE XIV
RULES AND REGULATIONS
Lessee shall comply with and shall cause its agents, employees, invitees,
guests and licensees to comply with such Rules and Regulations as may be from
time to time published by the Park and/or Paramount.
Lessee shall at all times during the term of this Lease Agreement keep a
copy of such Rules and Regulations posted in a conspicuous place on the
Premises. Lessee shall at all times during the term of this Lease Agreement, and
shall cause its agents, employees, invitees, guests and licensees, to comply
with and abide by the Park's safety procedures and all aforementioned persons
will be under jurisdiction of the Park's Safety Manager.
ARTICLE XV
VEHICLE TRAFFIC, PARKING
Paramount shall regulate all traffic within the Park including the
operation and parking of vehicles of Lessee, its invitees, licensees and
patrons. Paramount shall specify from time to time in its Rules and Regulations
the regulations pertaining to the foregoing. Paramount shall provide Lessee
ingress and egress to Lessee's designated receiving door for the purpose of
receiving and shipping merchandise in such manner and at such times as Paramount
may reasonably determine. All vehicles entering the Park shall be subject to
inspection by the Park's Security Department. All vehicles delivering
merchandise on Park's property will be issued a gate pass and shall be required
to stop at the receiving department for vehicle inspection prior to leaving the
Park. The gate pass must be stamped by the receiving department and returned to
the security gate for exit clearance.
ARTICLE XVI
ASSIGNMENT, SUBLEASE, TRANSFER, LIEN
8
<PAGE>
Lessee shall not sublicense any part of the Premises, assign, transfer or
encumber in any manner this Lease Agreement or any right, privilege, license or
interest conferred hereby.
Paramount may assign or otherwise transfer this Lease Agreement or any
portion hereof from time to time, and such transfer shall bind and inure to the
benefit of its successors and assigns. It is agreed that Paramount is
contracting the technical skills and expertise of the management and employees
of Lessee and any significant change in ownership or management of Lessee shall
require the consent of Paramount as if such change constituted an assignment of
this Lease Agreement.
Neither this Lease Agreement, nor any right, privilege, license or
interest conferred hereby shall be transferable by operation of law, by reason
of any bankruptcy, bankruptcy act, insolvency, receivership proceedings,
attachment, execution, other judicial process or sale by or against Lessee,
whether any of the same be voluntary or involuntary or judicial proceedings.
Lessee shall not permit any lien to be imposed upon the Premises or upon
any structures or improvements thereon. In the event a lien is imposed, Lessee
shall cause it to be discharged promptly. Lessee shall indemnify Paramount for
any loss, expense or cost incurred by it in connection with any such lien.
Paramount retains the right to create, or permit mortgages, trust deeds,
or other encumbrances to be imposed against and upon the Premises, any
improvements thereon or interests therein, except against property owned by
Lessee, which encumbrances, including principal, interest and costs and expenses
in connection therewith, shall be prior to and superior to the interest of
Lessee hereunder, and Lessee hereby agrees that this Lease Agreement is subject
and subordinate to any such mortgage, trust deed or other encumbrance.
ARTICLE XVII
INDEMNITY OF PARAMOUNT
Lessee, for itself and on behalf of its officers, directors, employees and
agents shall forever hold harmless Paramount (as used in this Article XVII,
Paramount shall include its parent corporation and affiliated companies and
their respective officers, directors, employees, affiliates, and agents) and
shall indemnify and defend Paramount against and from any and all liabilities,
claims, penalties, forfeitures, suits, damages, losses, actions, judgments and
all costs and expenses incident thereto, including, without limitation,
reasonable fees and disbursements of attorneys or
9
<PAGE>
consultants, arising, directly or indirectly, out of, in connection with or upon
the Premises, or the use or occupancy thereof or in the operation of the
Exhibit, except any of the foregoing caused by the willful misconduct or gross
negligence of Paramount.
ARTICLE XVIII
COMPLIANCE WITH LAWS
Lessee shall conduct itself, its business on the Premises and maintain the
Premises and Exhibit in compliance with all applicable federal, state and local
statutes, laws, ordinances, regulations, rules and any other legal requirements,
including, without limitation, the provisions of all federal, state and local
health, safety, transportation, and environmental laws and regulations, and
shall obtain all necessary permits, licenses and other consents necessary in
connection with the operation of the Exhibit. Lessee shall at all times be
responsible for the protection of persons and property and for maintaining
appropriate precautions and programs in connection with the operation of the
Exhibit.
ARTICLE XIX
DAMAGE AND DESTRUCTION OF PREMISES
In the event the Premises are destroyed, or the Park closed because of any
governmental action, whether legislative, judicial or executive, war, civil
disturbance, Act of God, fire, strike or other labor difficulty, except if
caused by Lessee, its officers, agents, employees, invitees, licensees or
patrons, and except if the same arose upon, or in connection with use of, the
Premises, the obligations of both parties to this Lease Agreement shall be
suspended during the period while the Premises are unusable and resume
thereafter. No compensation or claim whatsoever will be paid or payable by
Paramount by reasons of any loss or liability arising out of the foregoing. If
the Premises are destroyed or damaged by Lessee, its agents, employees,
invitees, licensees or patrons, Lessee shall be responsible for the costs
incurred by Paramount in repairing and restoring the Premises.
ARTICLE XX
DAMAGE WAIVER
10
<PAGE>
Lessee hereby expressly waives all claims of whatever nature for any or
all loss or damage sustained by reason of any defect, deficiency, failure or
impairment of any services to or in the Premises, including but not limited to
the water supply system, heating system, wires leading to or inside the
Premises, gas or electric or telephone which may occur from time to time from
any cause. Lessee hereby expressly releases and discharges Paramount, its
officers, agents, and employees from all demands, claims, judgments and causes
of action arising from any matter mentioned above in this Article.
ARTICLE XXI
SURRENDER OF PREMISES
Upon completion of term of this Lease Agreement, or upon early termination
thereof for any reason whatsoever, Lessee shall peaceably and quietly surrender
and deliver possession of the Premises to Paramount in good condition, ordinary
wear and tear permitted. If Paramount is due any monies, Paramount has the right
to withhold the equipment until said monies are paid in full. Otherwise,
Paramount will release and return (at Lessee's expense) all equipment remaining
on-site owned by Lessee.
ARTICLE XXII
NOTICES
All notices required or permitted to be given hereunder shall be in
writing, shall be effective upon receipt, and shall be delivered in person or
sent by Federal Express or similar courier or by United States mail, with
postage thereon prepaid, certified, addressed to Paramount Parks, Attention: Tim
V. Fisher, Executive Vice President and General Manager, Paramount's Kings
Island, 6300 King's Island Drive, King's Island, Ohio 45034; with a copy to
Paramount Parks Inc., 8720 Red Oak Blvd., Suite 315, Charlotte, NC 28217,
Attention: General Counsel and to Lessee at Attention: Rex Gay, P.O. Box 9112,
Mandeville, LA 70470-9112.
11
<PAGE>
ARTICLE XXIII
ENTIRE AGREEMENT
This Lease Agreement constitutes the entire agreement between the parties
and supersedes all agreements previously executed between the parties. This
Lease Agreement may not be modified except by written instrument executed by the
parties hereto.
ARTICLE XXIV
WAIVER
Waiver, whether by omission, commission or otherwise, at any time or from
time to time, of a partial or total breach of any of the terms, conditions or
covenants of this Lease Agreement shall not be deemed a waiver of any subsequent
breach of the same or any other term, condition or covenant. Receipt by
Paramount of payment from Lessee with or without knowledge of a breach of any
term, condition or covenant hereof, shall not be deemed a waiver of such breach,
nor shall failure to exercise any right hereunder by Paramount be deemed a
waiver of such breach.
ARTICLE XXV
RELATIONSHIP OF PARTIES
The relationship between the parties hereto is that of Lessor and Lessee
and of independent contracting parties, and is not, and shall not be deemed to
be, any other relationship, including without limiting the generality thereof,
that of joint venturers, partners or principal and agent.
ARTICLE XXVI
APPLICABLE LAW
This Lease Agreement is to be construed in accordance with the applicable
laws and rules of the state of Ohio.
ARTICLE XXVII
12
<PAGE>
SEPARABILITY
In the event any term, provision, clause, article, condition or other
portion of this Lease Agreement be held unenforceable, invalid or void, the same
shall not affect any other term, provision, clause, article, condition or other
portion of this Lease Agreement, but the remainder of this Lease Agreement shall
be effective as if such term, provision, clause, article, condition or other
portion had not been contained herein.
ARTICLE XXVIII
TERMINATION
Either party may, in addition to all other legal and equitable remedies
available to it, terminate this Lease Agreement in the event the other Party
shall fail to perform any of the covenants, terms, or conditions hereof to be
performed by such other Party and such nonperformance shall continue for a
period of thirty (30) days after notice thereof. In the event such performance
cannot be reasonably completed or performed within such thirty (30) day period,
the aggrieved Party may terminate this Lease Agreement only if the Party in
default shall not in good faith have commenced such performance within such
thirty (30) day period, or if commenced, shall not have diligently proceeded
therewith to completion.
Upon notice of termination, this Lease Agreement and the rights granted to
Lessee shall terminate immediately as if the giving of such notice were the date
fixed for the expiration of the Lease Agreement.
ARTICLE XXIX
RELOCATION OF EXHIBIT
It is recognized that the proper site selection is beneficial to and in
the best interests of both parties; provided, however, Paramount shall have the
right to relocate the operation of any Exhibit during the term of this Lease
Agreement in the event such relocation be in the best interests of the Park. In
the event a relocation is necessary, Paramount shall provide Lessee 30 days
prior written notice and shall provide a new site of substantially similar
quality. The expenses of any such relocation shall be paid by Paramount.
ARTICLE XXX
13
<PAGE>
AGREEMENT NOT TO COMPETE
Lessee hereby expressly agrees that during the term of this Lease
Agreement or any extension thereof, Lessee shall not, directly or indirectly,
sell or assist in the sale of same or similar product(s) as sold in the Park
within a 50-mile radius of the Park during the operating season of the Park,
except as otherwise agreed to in writing by Paramount.
ARTICLE XXXI
CONFIDENTIALITY
In the event either party receives any confidential information, such
party agrees to hold such information in confidence until such time as it is
made available to the public with the consent of such other party. In no event
shall either party release to any third party any terms or conditions of this
Lease Agreement without the written consent of the other party. This paragraph
shall survive termination of this Lease Agreement.
ARTICLE XXXII
ENVIRONMENTAL PROVISIONS
Lessee shall keep the Premises and Exhibit free from accumulation of any
hazardous, solid, special or toxic wastes or substances, chemicals, cleaning
substances and/or other materials (collectively "Materials") and, upon
termination of this Lease Agreement, shall remove all Materials used, handled or
generated by its operations/activities from the Premises.
Lessee shall assume legal title and liability for the handling,
transporting, storing, treating, disposing, and other future management
(collectively "Management") of any Materials used, handled or generated by
Lessee in connection with this Lease Agreement. Lessee shall at its sole cost
undertake proper Management of the Materials.
Lessee shall, at its sole cost: (i) obtain and comply with all permits,
licenses, registrations, authorizations and approvals -- including without
limitation air permits, wastewater (NPDES) permits, EPA generator identification
number -- required for the operation of the Exhibit (collectively "Permits"),
(ii) properly complete any manifests, waste profiles, and similar documents
required for the Management of Materials (collectively "Manifests"), (iii) shall
provide copies, with all required signatures, of any and all Permits and
Manifests to Paramount, and (iv) coordinate all Management of Materials with
Paramount's Loss Prevention Office.
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Lessee shall provide to Paramount emergency telephone number(s) and
contact person(s), on a 24-hour basis.
Lessee shall assign personnel to perform the Management of Materials who
are fit, qualified and competent to properly perform their assigned tasks, and
Lessee shall properly supervise such personnel. Lessee shall promptly remove and
replace any person not so fit, competent and qualified upon Paramount's request.
Notwithstanding anything herein to the contrary, Lessee shall use
transportation, treatment, storage and/or disposal companies and/or facilities
that have valid and effective Permits required under all applicable federal,
state and local laws, regulations, rules, ordinances or orders necessary to
allow such facilities to transport, accept, store, treat, process, or dispose of
the Materials. Neither Lessee nor any transportation, treatment, storage, or
disposal company and/or facility used by Lessee shall be in violation of any
terms or conditions of such Permits.
Lessee shall, at its sole cost: (a) keep and maintain secondary
containment for all Materials stored on the Premises, (b) erect a seismic
bracing for any Materials located on shelves throughout the Premises, (c) ensure
that all employees who work with any Materials receive the appropriate OSHA
training, and (d) provide documentation to Paramount of all OSHA training.
ARTICLE XXXIII
YEAR 2000 COMPLIANCE
Lessee warrants that the Exhibit has been designed or modified and fully
tested in such a manner that the Exhibit will not generate any invalid and/or
incorrect date-related results or cause any of the problems commonly referred to
as "Year 2000 problems" and will, without interruption or manual intervention,
continue to operate consistently, predictably and accurately and in accordance
with all of the requirements of this Agreement, including without limitation,
meeting all specifications and/or functionality and performance requirements,
when used during any year prior to, during or after the calendar year 2000.
ARTICLE XXXIV
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EQUAL OPPORTUNITY
The parties hereto agree that they will not engage in any discriminatory
practices based on race, color, sex, age, religion, national origin, sexual
orientation or physical or mental disability and that they will comply with all
applicable provisions of Executive Order 11246, The Vietnam Era Veterans
Readjustment Act of 1974 and The Rehabilitation Act of 1973, and of the rules,
regulations and relevant orders issued pursuant thereto including, without
limitation, the applicable provisions of 41 CFR 60-1.4, 60-250 and 60-741.4,
which are incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the
day and year first above written.
RX TECHNOLOGIES
By: /s/ Rex Gay
---------------------------------------
Name: Rex Gay
Title: President
RX Technologies
PARAMOUNT PARKS INC.
By: /s/ Tim V. Fisher
---------------------------------------
Name: Tim V. Fisher
Title: Executive Vice President and General
Manager
Paramount's Kings Island
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EXHIBIT A
ATTACHMENT TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGIES (LESSEE)
DESCRIPTION OF EXHIBIT
Lessee shall operate four (4) location to be located at the Beast, the Vortex,
Outer Limits, and the Taxi Jam rides. Lessee shall produce and sell photos of
guests on these rides as well as providing the service of sending those pictures
via e-mail. Lessee shall provide all equipment and supplies to insure a quality
product to Park guests.
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ADDENDUM A
ADDENDUM TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGIES (LESSEE)
o Paramount shall be permitted, but not required, to pay invoices which are
the responsibility of Lessee and to deduct same from amounts due Lessee
when, to do so, in Paramount's sole judgment, is necessary to protect the
good name and reputation of Paramount.
o As required in Article XII, Lessee shall insure all improvements and
equipment it adds to the premises, and its contents (including inventory,
office equipment, etc.) in accordance with standard fire and extended
coverage insurance policies, the proceeds of which will be payable to
Paramount and Lessee in proportion of their interests.
o Lessee acknowledges that all employees used to operate the Exhibit are
Lessee's employees as stipulated in Article X. Lessee warrants that
required taxes, withholding, etc. will be paid on these employees.
o The failure of either Party to insist upon a strict performance of this
Lease Agreement, or any of the terms and conditions thereof, shall not be
deemed a waiver of any rights or remedies that such Party may have and
shall not be deemed a waiver of any subsequent breach or default in any of
such terms and conditions.
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ADDENDUM B
ADDENDUM TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGIES (LESSEE)
CREDIT CARD SALES - Lessee may make sales utilizing Paramount's Credit Card
accounts (presently VISA, MASTER CARD, and DISCOVER), however, it is understood
that all credit charges are for Lessee's account only. In other words, Paramount
will receive as rent the percentage specified herein and all credit charges
(including charge backs, dealer discount*, etc.) will be deducted from Lessee's
share of revenue.
Cash register shortages (not errors), if any, are for Lessee's account
only and do not affect the rent paid to Paramount.
* Credit card companies charge a percentage of their individual charge
ticket value for the privilege of using their card. That fee is referred
to above as "discount". In cases where Lessee utilizes all or more than
one of the cards a blended rate may be used.
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Exhibit 10.1
Paramount's Kings Island
Vortex
<PAGE>
CONCESSION LEASE AGREEMENT
This Agreement, made and entered into this 15th day of February, 2000, by
and between PARAMOUNT PARKS INC., a Delaware corporation (herein called
"Paramount") and RX TECHNOLOGIES (herein called "Lessee").
WITNESSETH:
In consideration of the mutual covenants, terms, provisions and conditions
herein contained, the parties hereto represent, warrant and agree as follows:
ARTICLE I
LICENSE AND TERM
Paramount owns and operates a theme park known as Paramount's Kings Island
(the "Park") located in King's Island, Ohio.
Paramount hereby licenses to Lessee, and Lessee hereby licenses from
Paramount, the premises in the Park described in Exhibit A attached hereto
(herein called "Premises") together with ingress and egress for a period
commencing as of 1 April 2000 and ending 1 November 2000, which period is herein
called the "term" of this Lease Agreement.
Except as specifically set forth herein, no easements, appurtenances,
hereditaments, or other rights or interests whatsoever, are licensed or
otherwise granted hereby in the Park.
ARTICLE II
USE OF PREMISES
Lessee shall operate four (4) locations (herein called "Exhibit") on the
Premises for the purpose of producing and selling photographs of guests, as well
as providing the service of transmitting those pictures via e-mail, at the
Beast, Vortex, Outer Limits, and Taxi Jam rides as further set forth and
described on Exhibit A hereto. Lessee may not use the Premises for any other
purpose or conduct without the prior written consent of Paramount.
In case any doubt arises regarding the proper use of the Premises, Lessee
will submit a request in writing to Paramount for an interpretation and
determination of its rights under this Article. Paramount's decision thereon in
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writing, based upon the operating plans and policies of the Park and based upon
the description of Lessee's Exhibit hereunder, shall be final; provided that
such determination shall be in the sole discretion of Paramount. Lessee shall
not take any action without receiving, or in contravention of, such
determination.
All items to be sold or given away and all items used in the preparation
of items so sold or given away at Lessee's Exhibit shall be of the highest
quality. Paramount reserves the right to prohibit Lessee from distributing items
which are not, in its sole discretion, of the highest quality or the
distribution of which, in its sole discretion, is not consistent with the
reputation of the Park.
All items sold by Lessee at the Park shall be sold at prices mutually
agreed upon by Paramount and Lessee.
ARTICLE III
CONSTRUCTION AND INSTALLATION OF EXHIBIT
Lessee shall plan, install and erect any additions to and improvements
upon the Premises required for the Exhibit. Such improvements shall be of the
highest quality, of sound and safe structure, and in accordance with the
policies, motifs, designs, and overall planning for the Park and the particular
theme areas thereof in which such improvements shall be installed. Improvements
made by Lessee shall be subject to Paramount's prior written approval.
Lessee agrees to promptly reimburse Paramount for all construction costs
incurred based on cost estimate mutually agreed upon by both parties.
Lessee agrees to incorporate to Paramount's satisfaction and at its own
cost new technology into the Exhibit as it becomes available in order to
maximize revenues.
ARTICLE IV
TITLE TO TRADE FIXTURES, IMPROVEMENTS, EQUIPMENT
Any improvements, other than trade fixtures installed on the Premises by
Lessee with Paramount's prior approval, made on or to the Premises, shall, upon
termination of this Lease Agreement, become a part of the Premises, title to
which shall be vested in Paramount. Upon the termination of this Lease
Agreement, Lessee shall have the right to remove all trade fixtures installed by
Lessee, title to which it has retained, from the Premises and shall, at its
expense,
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repair and restore the Premises (including all improvements thereto) to the same
condition as before such fixtures were installed, ordinary wear and tear
excepted.
ARTICLE V
ALTERATIONS
Paramount reserves the right to make any changes, alterations,
improvements or additions near or around the Premises. Such changes may include
changes in the exterior design of any structures and changes in location of
streets, sidewalks and other outdoor facilities. Lessee shall not be entitled to
any damages or compensation on account of any of the foregoing.
Lessee shall make no alterations, additions or improvements to the
Premises or any structures thereon or add any improvements or equipment without
the prior written consent of Paramount.
ARTICLE VI
ACCESS OF PARAMOUNT
Paramount, its agents and employees retain the right to enter upon and
inspect all portions of the Premises and Exhibit at any reasonable time. In the
event entry is necessary and Lessee is not present to permit such entry,
Paramount may enter the Premises, forcibly or otherwise, without rendering
itself or its agents or employees liable to any claim or cause of action for
damages, except as provided below, and without affecting the obligations and
covenants of this Lease Agreement. In the event Paramount's action causes damage
to Lessee's property upon the Premises, Paramount shall repair or replace such
damaged property unless such action was necessitated by Lessee's negligence or
willful misconduct.
Paramount shall have the right to enter upon the Premises to accomplish
such work as may be necessary to preserve the walls, structure, or other parts
of the Premises or its contents from damage.
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ARTICLE VII
REPAIRS; MAINTENANCE
Paramount shall keep and generally maintain buildings and equipment on the
Premises in good condition and repair, keeping and maintaining the same in a
safe, sanitary and workable condition. Lessee shall, at its expense, maintain
all trade fixtures in a safe, sanitary and workable condition.
ARTICLE VIII
UTILITIES
Paramount shall provide all water and electricity required to operate the
Exhibit during the term of this Lease Agreement, provided that Paramount shall
not be responsible if circumstances beyond its control result in any disruption
in such services.
Lessee shall pay for administrative (support) services, which include, but
are not limited to, long distance telephone service, faxes and copying.
ARTICLE IX
PAYMENT AND FINANCIAL REPORTS
In consideration of the license and use of the Premises and the mutual
covenants, terms and provisions contained in this Lease Agreement, Paramount
shall be entitled to an amount equal to forty-five (45%) of Lessee's gross sales
at the park during the term of this lease agreement. Gross sales shall include
all monies and other things of value received by or paid to Lessee.
In determining gross receipts from the Exhibit's sales, there shall not be
included therein the amount of any sales tax, dishonored checks, credit card
charge backs or refunds made in the ordinary course of business. Paramount shall
remit any sales tax collected on sales of the Exhibit to the proper taxing
authority.
All sales made by Lessee at the Park shall be rung on a cash register
specified by Paramount and provided by Lessee. Lessee shall deliver all receipts
to the Park's Accounting Department at the close of each business day. On a
weekly basis and in accordance with the Park's general accounting schedule,
Paramount shall remit to Lessee, Lessee's
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share of the gross receipts made by Lessee less any amount owed to Paramount
hereunder. Any shortage of gross receipts shall be the responsibility of Lessee.
Paramount and its accountants shall have full access at reasonable times
to examine the books, cash registers, accounts, vouchers, working papers and
other records of Lessee pertaining to the operation of the Exhibit for the
purpose of checking and/or verifying the gross receipts of the Exhibit and any
other information pertinent to this Lease Agreement.
ARTICLE X
OPERATION OF EXHIBIT
Lessee shall operate its Exhibit using its best efforts, skill and
diligence in the conduct of its business, and Lessee shall maintain sufficient
materials, supplies and merchandise in stock, an adequate sales force, and
regulate its employees and servants so that they will be courteous and helpful
to the public. Paramount shall have the right to participate in the operation of
the Exhibit to the extent it deems necessary to ensure the quality of the
operation.
Lessee shall provide and employ the operating personnel to operate the
Exhibit, and Paramount and Lessee shall mutually determine the number of
personnel necessary to adequately operate the Exhibit. Lessee and Paramount
shall mutually determine the special skills required, if any, for such
personnel. Lessee agrees to train and supervise such personnel. Such personnel
shall be employed by Lessee. Paramount will attempt to inform Lessee of all
pertinent laws and regulations (labor and general), both Federal and State,
applicable to the Exhibit, provided that Paramount shall assume no obligation or
responsibility for Lessee's compliance with such laws or regulations regardless
of whether Paramount has or has not so informed Lessee. Lessee agrees to abide
by all such laws and regulations.
Lessee shall keep the Exhibit fully open for business during every day of
the week, including Sundays and legal holidays, in accordance with the hourly
and daily schedule of the Park to be issued by Paramount; Lessee shall operate
the Exhibit during the hours and on the days set forth in said schedule as
issued from time to time.
Lessee shall keep upon the Premises at all reasonable times at least one
qualified representative, authorized to represent and act for Lessee in matters
pertaining to the operation of, or other questions arising in connection with,
the Exhibit and Premises and shall keep Paramount informed in writing of the
identity of such persons. In the event
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Paramount so requests, Lessee shall promptly replace its qualified
representative with another individual reasonably suitable to Paramount.
Lessee and Paramount shall mutually agree upon costumes for all line
personnel. If the costumes are provided by Paramount, Lessee shall reimburse
Paramount for any loss of or damage to the costumes during the operating
seasons, ordinary wear and tear excepted. Lessee agrees to have its management
personnel and qualified representatives dress in the manner appropriate to the
Park's image.
Lessee agrees to have all personnel abide by Paramount's employment
policies, a copy of which will be provided to Lessee.
Lessee agrees not to employ nor seek to employ, directly or indirectly,
any employee of Paramount within 90 days of that employee's termination, without
the prior written consent of Paramount. If Lessee breaches this provision,
Lessee agrees to pay Paramount liquidated damages in the amount of twice the
annual salary of the employee (while employed by Paramount). Any former
Paramount employee hired by Lessee to operate the Exhibit must have a
satisfactory rehire status from Paramount.
The parties acknowledge that the equipment provided under this Lease
Agreement shall, at all times, be in the care, custody and control of Lessee.
Consistent with same, Lessee, at all times shall assume full responsibility and
liability for said equipment.
ARTICLE XI
ADVERTISING, PUBLICITY, SIGNS
Lessee shall not have the right to use, and shall not use, in any way or
for any purpose, the names or any similar name nor any characters, designs,
symbols, representations, figures, drawings, ideas, or other matter or materials
developed, held or owned by Paramount, except that during the term of this Lease
Agreement Lessee may use photographs or other representations of the Exhibit or
of the Park in connection with advertising or publicity; provided, however, that
Paramount shall have the right to approve any such photographs or
representations as set forth below. Prior to the exercise of any right set forth
in this Article, Lessee shall submit to Paramount all advertising copy, all data
in connection with its advertising programs, all art work and all other
advertising or promotional material together with a statement as to the use of
which the same will be put and the media through which, and the period of time
during
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which, it will be exhibited, distributed, and displayed. Lessee shall not use
any of the same without first obtaining in writing in each and every case the
specific approval of Paramount. Lessee shall affix any and all copyright notices
required by law in connection with the exercise of any rights set forth in this
Article.
ARTICLE XII
INSURANCE
Lessee shall, throughout the term of this Lease Agreement, maintain at its
own cost an insurance policy or policies indemnifying and holding harmless
Paramount, its officers, agents and employees from, for and against any loss or
liability whatsoever incurred as a result of any event occurring upon the
Premises or occurring by reason of Lessee's operations from or occupancy of the
Premises, whether such event, in the latter case, occurs on or off the Premises.
Paramount shall be named an additional insured in said policy or policies.
Said policies shall be written by responsible insurance companies
satisfactory to Paramount, and shall have minimum comprehensive general
liability limit for Product/Completed operations and for bodily injury of
$1,000,000 each occurrence and $1,000,000 each aggregate; property damage limit
of $l00,000 each occurrence and $100,000 each aggregate; a minimum comprehensive
automobile liability limit of $250,000 each person and $250,000 each occurrence;
and minimum property damage limit of $l00,000 each occurrence. Policies will
provide written notice to Paramount of cancellation or of any material change in
said policy 30 days in advance of the effective date thereof.
Lessee shall also insure any improvements and equipment it adds to the
Premises, and its contents, in accordance with standard fire and extended
coverage insurance policies then in effect for similar businesses, the proceeds
of which shall be payable to Paramount and Lessee in proportion to their
respective interests.
Lessee shall provide statutory Workman's Compensation Insurance, Social
Security, Unemployment Insurance, and such other benefits as may be required by
law to its employees. Lessee shall submit evidence thereof to Paramount and
display such certificates on the Premises as may be required by law.
ARTICLE XIII
TAXES AND ASSESSMENTS
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Paramount shall pay all real estate taxes, assessments, or levies against
the real property upon which the Premises is situated and shall be responsible
for the conformance of such improvements to all applicable laws and regulations.
Lessee shall pay all other taxes, licenses and permit fees in connection with
the Premises and operation of the Exhibit.
ARTICLE XIV
RULES AND REGULATIONS
Lessee shall comply with and shall cause its agents, employees, invitees,
guests and licensees to comply with such Rules and Regulations as may be from
time to time published by the Park and/or Paramount.
Lessee shall at all times during the term of this Lease Agreement keep a
copy of such Rules and Regulations posted in a conspicuous place on the
Premises. Lessee shall at all times during the term of this Lease Agreement, and
shall cause its agents, employees, invitees, guests and licensees, to comply
with and abide by the Park's safety procedures and all aforementioned persons
will be under jurisdiction of the Park's Safety Manager.
ARTICLE XV
VEHICLE TRAFFIC, PARKING
Paramount shall regulate all traffic within the Park including the
operation and parking of vehicles of Lessee, its invitees, licensees and
patrons. Paramount shall specify from time to time in its Rules and Regulations
the regulations pertaining to the foregoing. Paramount shall provide Lessee
ingress and egress to Lessee's designated receiving door for the purpose of
receiving and shipping merchandise in such manner and at such times as Paramount
may reasonably determine. All vehicles entering the Park shall be subject to
inspection by the Park's Security Department. All vehicles delivering
merchandise on Park's property will be issued a gate pass and shall be required
to stop at the receiving department for vehicle inspection prior to leaving the
Park. The gate pass must be stamped by the receiving department and returned to
the security gate for exit clearance.
ARTICLE XVI
ASSIGNMENT, SUBLEASE, TRANSFER, LIEN
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Lessee shall not sublicense any part of the Premises, or assign, transfer
or encumber in any manner this Lease Agreement or any right, privilege, license
or interest conferred hereby.
Paramount may assign or otherwise transfer this Lease Agreement or any
portion hereof from time to time, and such transfer shall bind and inure to the
benefit of its successors and assigns. It is agreed that Paramount is
contracting the technical skills and expertise of the management and employees
of Lessee and any significant change in ownership or management of Lessee shall
require the consent of Paramount as if such change constituted an assignment of
this Lease Agreement.
Neither this Lease Agreement, nor any right, privilege, license or
interest conferred hereby shall be transferable by operation of law, by reason
of any bankruptcy, bankruptcy act, insolvency, receivership proceedings,
attachment, execution, other judicial process or sale by or against Lessee,
whether any of the same be voluntary or involuntary or judicial proceedings.
Lessee shall not permit any lien to be imposed upon the Premises or upon
any structures or improvements thereon. In the event a lien is imposed, Lessee
shall cause it to be discharged promptly. Lessee shall indemnify Paramount for
any loss, expense or cost incurred by it in connection with any such lien.
Paramount retains the right to create, or permit mortgages, trust deeds,
or other encumbrances to be imposed against and upon the Premises, any
improvements thereon or interests therein, except against property owned by
Lessee, which encumbrances, including principal, interest and costs and expenses
in connection therewith, shall be prior to and superior to the interest of
Lessee hereunder, and Lessee hereby agrees that this Lease Agreement is subject
and subordinate to any such mortgage, trust deed or other encumbrance.
ARTICLE XVII
INDEMNITY OF PARAMOUNT
Lessee, for itself and on behalf of its officers, directors, employees and
agents shall forever hold harmless Paramount (as used in this Article XVII,
Paramount shall include its parent corporation and affiliated companies and
their respective officers, directors, employees, affiliates, and agents) and
shall indemnify and defend Paramount against and from any and all liabilities,
claims, penalties, forfeitures, suits, damages, losses, actions, judgments and
all costs and expenses incident thereto, including, without limitation,
reasonable fees and disbursements of attorneys or
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consultants, arising, directly or indirectly, out of, in connection with or upon
the Premises, or the use or occupancy thereof or in the operation of the
Exhibit, except any of the foregoing caused by the willful misconduct or gross
negligence of Paramount.
ARTICLE XVIII
COMPLIANCE WITH LAWS
Lessee shall conduct itself, its business on the Premises and maintain the
Premises and Exhibit in compliance with all applicable federal, state and local
statutes, laws, ordinances, regulations, rules and any other legal requirements,
including, without limitation, the provisions of all federal, state and local
health, safety, transportation, and environmental laws and regulations, and
shall obtain all necessary permits, licenses and other consents necessary in
connection with the operation of the Exhibit. Lessee shall at all times be
responsible for the protection of persons and property and for maintaining
appropriate precautions and programs in connection with the operation of the
Exhibit.
ARTICLE XIX
DAMAGE AND DESTRUCTION OF PREMISES
In the event the Premises are destroyed, or the Park closed because of any
governmental action, whether legislative, judicial or executive, war, civil
disturbance, Act of God, fire, strike or other labor difficulty, except if
caused by Lessee, its officers, agents, employees, invitees, licensees or
patrons, and except if the same arose upon, or in connection with use of, the
Premises, the obligations of both parties to this Lease Agreement shall be
suspended during the period while the Premises are unusable and resume
thereafter. No compensation or claim whatsoever will be paid or payable by
Paramount by reasons of any loss or liability arising out of the foregoing. If
the Premises are destroyed or damaged by Lessee, its agents, employees,
invitees, licensees or patrons, Lessee shall be responsible for the costs
incurred by Paramount in repairing and restoring the Premises.
ARTICLE XX
DAMAGE WAIVER
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Lessee hereby expressly waives all claims of whatever nature for any or
all loss or damage sustained by reason of any defect, deficiency, failure or
impairment of any services to or in the Premises, including but not limited to
the water supply system, heating system, wires leading to or inside the
Premises, gas or electric or telephone which may occur from time to time from
any cause. Lessee hereby expressly releases and discharges Paramount, its
officers, agents, and employees from all demands, claims, judgments and causes
of action arising from any matter mentioned above in this Article.
ARTICLE XXI
SURRENDER OF PREMISES
Upon completion of term of this Lease Agreement, or upon early termination
thereof for any reason whatsoever, Lessee shall peaceably and quietly surrender
and deliver possession of the Premises to Paramount in good condition, ordinary
wear and tear permitted. If Paramount is due any monies, Paramount has the right
to withhold the equipment until said monies are paid in full. Otherwise,
Paramount will release and return (at Lessee's expense) all equipment remaining
on-site owned by Lessee.
ARTICLE XXII
NOTICES
All notices required or permitted to be given hereunder shall be in
writing, shall be effective upon receipt, and shall be delivered in person or
sent by Federal Express or similar courier or by United States mail, with
postage thereon prepaid, certified, addressed to Paramount Parks, Attention: Tim
V. Fisher, Executive Vice President and General Manager, Paramount's Kings
Island, 6300 King's Island Drive, King's Island, Ohio 45034; with a copy to
Paramount Parks Inc., 8720 Red Oak Blvd., Suite 315, Charlotte, NC 28217,
Attention: General Counsel and to Lessee at Attention: Rex Gay, P.O. Box 9112,
Mandeville, LA 70470-9112.
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ARTICLE XXIII
ENTIRE AGREEMENT
This Lease Agreement constitutes the entire agreement between the parties
and supersedes all agreements previously executed between the parties. This
Lease Agreement may not be modified except by written instrument executed by the
parties hereto.
ARTICLE XXIV
WAIVER
Waiver, whether by omission, commission or otherwise, at any time or from
time to time, of a partial or total breach of any of the terms, conditions or
covenants of this Lease Agreement shall not be deemed a waiver of any subsequent
breach of the same or any other term, condition or covenant. Receipt by
Paramount of payment from Lessee with or without knowledge of a breach of any
term, condition or covenant hereof, shall not be deemed a waiver of such breach,
nor shall failure to exercise any right hereunder by Paramount be deemed a
waiver of such breach.
ARTICLE XXV
RELATIONSHIP OF PARTIES
The relationship between the parties hereto is that of Lessor and Lessee
and of independent contracting parties, and is not, and shall not be deemed to
be, any other relationship, including without limiting the generality thereof,
that of joint venturers, partners or principal and agent.
ARTICLE XXVI
APPLICABLE LAW
This Lease Agreement is to be construed in accordance with the applicable
laws and rules of the state of Ohio.
ARTICLE XXVII
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SEPARABILITY
In the event any term, provision, clause, article, condition or other
portion of this Lease Agreement be held unenforceable, invalid or void, the same
shall not affect any other term, provision, clause, article, condition or other
portion of this Lease Agreement, but the remainder of this Lease Agreement shall
be effective as if such term, provision, clause, article, condition or other
portion had not been contained herein.
ARTICLE XXVIII
TERMINATION
Either party may, in addition to all other legal and equitable remedies
available to it, terminate this Lease Agreement in the event the other Party
shall fail to perform any of the covenants, terms, or conditions hereof to be
performed by such other Party and such nonperformance shall continue for a
period of thirty (30) days after notice thereof. In the event such performance
cannot be reasonably completed or performed within such thirty (30) day period,
the aggrieved Party may terminate this Lease Agreement only if the Party in
default shall not in good faith have commenced such performance within such
thirty (30) day period, or if commenced, shall not have diligently proceeded
therewith to completion.
Upon notice of termination, this Lease Agreement and the rights granted to
Lessee shall terminate immediately as if the giving of such notice were the date
fixed for the expiration of the Lease Agreement.
ARTICLE XXIX
RELOCATION OF EXHIBIT
It is recognized that the proper site selection is beneficial to and in
the best interests of both parties; provided, however, Paramount shall have the
right to relocate the operation of any Exhibit during the term of this Lease
Agreement in the event such relocation be in the best interests of the Park. In
the event a relocation is necessary, Paramount shall provide Lessee 30 days
prior written notice and shall provide a new site of substantially similar
quality. The expenses of any such relocation shall be paid by Paramount.
ARTICLE XXX
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AGREEMENT NOT TO COMPETE
Lessee hereby expressly agrees that during the term of this Lease
Agreement or any extension thereof, Lessee shall not, directly or indirectly,
sell or assist in the sale of same or similar product(s) as sold in the Park
within a 50-mile radius of the Park during the operating season of the Park,
except as otherwise agreed to in writing by Paramount.
ARTICLE XXXI
CONFIDENTIALITY
In the event either party receives any confidential information, such
party agrees to hold such information in confidence until such time as it is
made available to the public with the consent of such other party. In no event
shall either party release to any third party any terms or conditions of this
Lease Agreement without the written consent of the other party. This paragraph
shall survive termination of this Lease Agreement.
ARTICLE XXXII
ENVIRONMENTAL PROVISIONS
Lessee shall keep the Premises and Exhibit free from accumulation of any
hazardous, solid, special or toxic wastes or substances, chemicals, cleaning
substances and/or other materials (collectively "Materials") and, upon
termination of this Lease Agreement, shall remove all Materials used, handled or
generated by its operations/activities from the Premises.
Lessee shall assume legal title and liability for the handling,
transporting, storing, treating, disposing, and other future management
(collectively "Management") of any Materials used, handled or generated by
Lessee in connection with this Lease Agreement. Lessee shall at its sole cost
undertake proper Management of the Materials.
Lessee shall, at its sole cost: (i) obtain and comply with all permits,
licenses, registrations, authorizations and approvals -- including without
limitation air permits, wastewater (NPDES) permits, EPA generator identification
number -- required for the operation of the Exhibit (collectively "Permits"),
(ii) properly complete any manifests, waste profiles, and similar documents
required for the Management of Materials (collectively "Manifests"), (iii) shall
provide copies, with all required signatures, of any and all Permits and
Manifests to Paramount, and (iv) coordinate all Management of Materials with
Paramount's Loss Prevention Office.
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Lessee shall provide to Paramount emergency telephone number(s) and
contact person(s), on a 24-hour basis.
Lessee shall assign personnel to perform the Management of Materials who
are fit, qualified and competent to properly perform their assigned tasks, and
Lessee shall properly supervise such personnel. Lessee shall promptly remove and
replace any person not so fit, competent and qualified upon Paramount's request.
Notwithstanding anything herein to the contrary, Lessee shall use
transportation, treatment, storage and/or disposal companies and/or facilities
that have valid and effective Permits required under all applicable federal,
state and local laws, regulations, rules, ordinances or orders necessary to
allow such facilities to transport, accept, store, treat, process, or dispose of
the Materials. Neither Lessee nor any transportation, treatment, storage, or
disposal company and/or facility used by Lessee shall be in violation of any
terms or conditions of such Permits.
Lessee shall, at its sole cost: (a) keep and maintain secondary
containment for all Materials stored on the Premises, (b) erect a seismic
bracing for any Materials located on shelves throughout the Premises, (c) ensure
that all employees who work with any Materials receive the appropriate OSHA
training, and (d) provide documentation to Paramount of all OSHA training.
ARTICLE XXXIII
YEAR 2000 COMPLIANCE
Lessee warrants that the Exhibit has been designed or modified and fully
tested in such a manner that the Exhibit will not generate any invalid and/or
incorrect date-related results or cause any of the problems commonly referred to
as "Year 2000 problems" and will, without interruption or manual intervention,
continue to operate consistently, predictably and accurately and in accordance
with all of the requirements of this Agreement, including without limitation,
meeting all specifications and/or functionality and performance requirements,
when used during any year prior to, during or after the calendar year 2000.
ARTICLE XXXIV
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EQUAL OPPORTUNITY
The parties hereto agree that they will not engage in any discriminatory
practices based on race, color, sex, age, religion, national origin, sexual
orientation or physical or mental disability and that they will comply with all
applicable provisions of Executive Order 11246, The Vietnam Era Veterans
Readjustment Act of 1974 and The Rehabilitation Act of 1973, and of the rules,
regulations and relevant orders issued pursuant thereto including, without
limitation, the applicable provisions of 41 CFR 60-1.4, 60-250 and 60-741.4,
which are incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the
day and year first above written.
RX TECHNOLOGIES
By: /s/ Rex Gay
---------------------------------------
Name: Rex Gay
Title: President
RX Technologies
PARAMOUNT PARKS INC.
By: /s/ Tim V. Fisher
---------------------------------------
Name: Tim V. Fisher
Title: Executive Vice President and
General Manager
Paramount's Kings Island
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EXHIBIT A
ATTACHMENT TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGIES (LESSEE)
DESCRIPTION OF EXHIBIT
Lessee shall operate four (4) location to be located at the Beast, the Vortex,
Outer Limits, and the Taxi Jam rides. Lessee shall produce and sell photos of
guests on these rides as well as providing the service of sending those pictures
via e-mail. Lessee shall provide all equipment and supplies to insure a quality
product to Park guests.
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ADDENDUM A
ADDENDUM TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGIES (LESSEE)
o Paramount shall be permitted, but not required, to pay invoices which are
the responsibility of Lessee and to deduct same from amounts due Lessee
when, to do so, in Paramount's sole judgment, is necessary to protect the
good name and reputation of Paramount.
o As required in Article XII, Lessee shall insure all improvements and
equipment it adds to the premises, and its contents (including inventory,
office equipment, etc.) in accordance with standard fire and extended
coverage insurance policies, the proceeds of which will be payable to
Paramount and Lessee in proportion of their interests.
o Lessee acknowledges that all employees used to operate the Exhibit are
Lessee's employees as stipulated in Article X. Lessee warrants that
required taxes, withholding, etc. will be paid on these employees.
o The failure of either Party to insist upon a strict performance of this
Lease Agreement, or any of the terms and conditions thereof, shall not be
deemed a waiver of any rights or remedies that such Party may have and
shall not be deemed a waiver of any subsequent breach or default in any of
such terms and conditions.
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ADDENDUM B
ADDENDUM TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGIES (LESSEE)
CREDIT CARD SALES - Lessee may make sales utilizing Paramount's Credit Card
accounts (presently VISA, MASTER CARD, and DISCOVER), however, it is understood
that all credit charges are for Lessee's account only. In other words, Paramount
will receive as rent the percentage specified herein and all credit charges
(including charge backs, dealer discount*, etc.) will be deducted from Lessee's
share of revenue.
Cash register shortages (not errors), if any, are for Lessee's account
only and do not affect the rent paid to Paramount.
* Credit card companies charge a percentage of their individual charge
ticket value for the privilege of using their card. That fee is referred
to above as "discount". In cases where Lessee utilizes all or more than
one of the cards a blended rate may be used.
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Exhibit 10.2
Paramount's Kings Island
The Beast
<PAGE>
CONCESSION LEASE AGREEMENT
This Agreement, made and entered into this 15th day of February, 2000, by
and between PARAMOUNT PARKS INC., a Delaware corporation (herein called
"Paramount") and RX TECHNOLOGIES (herein called "Lessee").
W I T N E S S E T H:
In consideration of the mutual covenants, terms, provisions and conditions
herein contained, the parties hereto represent, warrant and agree as follows:
ARTICLE I
LICENSE AND TERM
Paramount owns and operates a theme park known as Paramount's Kings Island
(the "Park") located in King's Island, Ohio.
Paramount hereby licenses to Lessee, and Lessee hereby licenses from
Paramount, the premises in the Park described in Exhibit A attached hereto
(herein called "Premises") together with ingress and egress for a period
commencing as of 1 April 2000 and ending 1 November 2000, which period is herein
called the "term" of this Lease Agreement.
Except as specifically set forth herein, no easements, appurtenances,
hereditaments, or other rights or interests whatsoever, are licensed or
otherwise granted hereby in the Park.
ARTICLE II
USE OF PREMISES
Lessee shall operate four (4) locations (herein called "Exhibit") on the
Premises for the purpose of producing and selling photographs of guests, as well
as providing the service of transmitting those pictures via e-mail, at the
Beast, Vortex, Outer Limits, and Taxi Jam rides as further set forth and
described on Exhibit A hereto. Lessee may not use the Premises for any other
purpose or conduct without the prior written consent of Paramount.
In case any doubt arises regarding the proper use of the Premises, Lessee
will submit a request in writing to Paramount for an interpretation and
determination of its rights under this Article. Paramount's decision thereon in
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writing, based upon the operating plans and policies of the Park and based upon
the description of Lessee's Exhibit hereunder, shall be final; provided that
such determination shall be in the sole discretion of Paramount. Lessee shall
not take any action without receiving, or in contravention of, such
determination.
All items to be sold or given away and all items used in the preparation
of items so sold or given away at Lessee's Exhibit shall be of the highest
quality. Paramount reserves the right to prohibit Lessee from distributing items
which are not, in its sole discretion, of the highest quality or the
distribution of which, in its sole discretion, is not consistent with the
reputation of the Park.
All items sold by Lessee at the Park shall be sold at prices mutually
agreed upon by Paramount and Lessee.
ARTICLE III
CONSTRUCTION AND INSTALLATION OF EXHIBIT
Lessee shall plan, install and erect any additions to and improvements
upon the Premises required for the Exhibit. Such improvements shall be of the
highest quality, of sound and safe structure, and in accordance with the
policies, motifs, designs, and overall planning for the Park and the particular
theme areas thereof in which such improvements shall be installed. Improvements
made by Lessee shall be subject to Paramount's prior written approval.
Lessee agrees to promptly reimburse Paramount for all construction costs
incurred based on cost estimate mutually agreed upon by both parties.
Lessee agrees to incorporate to Paramount's satisfaction and at its own
cost new technology into the Exhibit as it becomes available in order to
maximize revenues.
ARTICLE IV
TITLE TO TRADE FIXTURES, IMPROVEMENTS, EQUIPMENT
Any improvements, other than trade fixtures installed on the Premises by
Lessee with Paramount's prior approval, made on or to the Premises, shall, upon
termination of this Lease Agreement, become a part of the Premises, title to
which shall be vested in Paramount. Upon the termination of this Lease
Agreement, Lessee shall have the right to remove all trade fixtures installed by
Lessee, title to which it has retained, from the Premises and shall, at its
expense,
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repair and restore the Premises (including all improvements thereto) to the same
condition as before such fixtures were installed, ordinary wear and tear
excepted.
ARTICLE V
ALTERATIONS
Paramount reserves the right to make any changes, alterations,
improvements or additions near or around the Premises. Such changes may include
changes in the exterior design of any structures and changes in location of
streets, sidewalks and other outdoor facilities. Lessee shall not be entitled to
any damages or compensation on account of any of the foregoing.
Lessee shall make no alterations, additions or improvements to the
Premises or any structures thereon or add any improvements or equipment without
the prior written consent of Paramount.
ARTICLE VI
ACCESS OF PARAMOUNT
Paramount, its agents and employees retain the right to enter upon and
inspect all portions of the Premises and Exhibit at any reasonable time. In the
event entry is necessary and Lessee is not present to permit such entry,
Paramount may enter the Premises, forcibly or otherwise, without rendering
itself or its agents or employees liable to any claim or cause of action for
damages, except as provided below, and without affecting the obligations and
covenants of this Lease Agreement. In the event Paramount's action causes damage
to Lessee's property upon the Premises, Paramount shall repair or replace such
damaged property unless such action was necessitated by Lessee's negligence or
willful misconduct.
Paramount shall have the right to enter upon the Premises to accomplish
such work as may be necessary to preserve the walls, structure, or other parts
of the Premises or its contents from damage.
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ARTICLE VII
REPAIRS; MAINTENANCE
Paramount shall keep and generally maintain buildings and equipment on the
Premises in good condition and repair, keeping and maintaining the same in a
safe, sanitary and workable condition. Lessee shall, at its expense, maintain
all trade fixtures in a safe, sanitary and workable condition.
ARTICLE VIII
UTILITIES
Paramount shall provide all water and electricity required to operate the
Exhibit during the term of this Lease Agreement, provided that Paramount shall
not be responsible if circumstances beyond its control result in any disruption
in such services.
Lessee shall pay for administrative (support) services, which include, but
are not limited to, long distance telephone service, faxes and copying.
ARTICLE IX
PAYMENT AND FINANCIAL REPORTS
In consideration of the license and use of the Premises and the mutual
covenants, terms and provisions contained in this Lease Agreement, Paramount
shall be entitled to an amount equal to forty-five (45%) of Lessee's gross sales
at the park during the term of this lease agreement. Gross sales shall include
all monies and other things of value received by or paid to Lessee.
In determining gross receipts from the Exhibit's sales, there shall not be
included therein the amount of any sales tax, dishonored checks, credit card
charge backs or refunds made in the ordinary course of business. Paramount shall
remit any sales tax collected on sales of the Exhibit to the proper taxing
authority.
All sales made by Lessee at the Park shall be rung on a cash register
specified by Paramount and provided by Lessee. Lessee shall deliver all receipts
to the Park's Accounting Department at the close of each business day. On a
weekly basis and in accordance with the Park's general accounting schedule,
Paramount shall remit to Lessee, Lessee's
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share of the gross receipts made by Lessee less any amount owed to Paramount
hereunder. Any shortage of gross receipts shall be the responsibility of Lessee.
Paramount and its accountants shall have full access at reasonable times
to examine the books, cash registers, accounts, vouchers, working papers and
other records of Lessee pertaining to the operation of the Exhibit for the
purpose of checking and/or verifying the gross receipts of the Exhibit and any
other information pertinent to this Lease Agreement.
ARTICLE X
OPERATION OF EXHIBIT
Lessee shall operate its Exhibit using its best efforts, skill and
diligence in the conduct of its business, and Lessee shall maintain sufficient
materials, supplies and merchandise in stock, an adequate sales force, and
regulate its employees and servants so that they will be courteous and helpful
to the public. Paramount shall have the right to participate in the operation of
the Exhibit to the extent it deems necessary to ensure the quality of the
operation.
Lessee shall provide and employ the operating personnel to operate the
Exhibit, and Paramount and Lessee shall mutually determine the number of
personnel necessary to adequately operate the Exhibit. Lessee and Paramount
shall mutually determine the special skills required, if any, for such
personnel. Lessee agrees to train and supervise such personnel. Such personnel
shall be employed by Lessee. Paramount will attempt to inform Lessee of all
pertinent laws and regulations (labor and general), both Federal and State,
applicable to the Exhibit, provided that Paramount shall assume no obligation or
responsibility for Lessee's compliance with such laws or regulations regardless
of whether Paramount has or has not so informed Lessee. Lessee agrees to abide
by all such laws and regulations.
Lessee shall keep the Exhibit fully open for business during every day of
the week, including Sundays and legal holidays, in accordance with the hourly
and daily schedule of the Park to be issued by Paramount; Lessee shall operate
the Exhibit during the hours and on the days set forth in said schedule as
issued from time to time.
Lessee shall keep upon the Premises at all reasonable times at least one
qualified representative, authorized to represent and act for Lessee in matters
pertaining to the operation of, or other questions arising in connection with,
the Exhibit and Premises and shall keep Paramount informed in writing of the
identity of such persons. In the event
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Paramount so requests, Lessee shall promptly replace its qualified
representative with another individual reasonably suitable to Paramount.
Lessee and Paramount shall mutually agree upon costumes for all line
personnel. If the costumes are provided by Paramount, Lessee shall reimburse
Paramount for any loss of or damage to the costumes during the operating
seasons, ordinary wear and tear excepted. Lessee agrees to have its management
personnel and qualified representatives dress in the manner appropriate to the
Park's image.
Lessee agrees to have all personnel abide by Paramount's employment
policies, a copy of which will be provided to Lessee.
Lessee agrees not to employ nor seek to employ, directly or indirectly,
any employee of Paramount within 90 days of that employee's termination, without
the prior written consent of Paramount. If Lessee breaches this provision,
Lessee agrees to pay Paramount liquidated damages in the amount of twice the
annual salary of the employee (while employed by Paramount). Any former
Paramount employee hired by Lessee to operate the Exhibit must have a
satisfactory rehire status from Paramount.
The parties acknowledge that the equipment provided under this Lease
Agreement shall, at all times, be in the care, custody and control of Lessee.
Consistent with same, Lessee, at all times shall assume full responsibility and
liability for said equipment.
ARTICLE XI
ADVERTISING, PUBLICITY, SIGNS
Lessee shall not have the right to use, and shall not use, in any way or
for any purpose, the names or any similar name nor any characters, designs,
symbols, representations, figures, drawings, ideas, or other matter or materials
developed, held or owned by Paramount, except that during the term of this Lease
Agreement Lessee may use photographs or other representations of the Exhibit or
of the Park in connection with advertising or publicity; provided, however, that
Paramount shall have the right to approve any such photographs or
representations as set forth below. Prior to the exercise of any right set forth
in this Article, Lessee shall submit to Paramount all advertising copy, all data
in connection with its advertising programs, all art work and all other
advertising or promotional material together with a statement as to the use of
which the same will be put and the media through which, and the period of time
during
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which, it will be exhibited, distributed, and displayed. Lessee shall not use
any of the same without first obtaining in writing in each and every case the
specific approval of Paramount. Lessee shall affix any and all copyright notices
required by law in connection with the exercise of any rights set forth in this
Article.
ARTICLE XII
INSURANCE
Lessee shall, throughout the term of this Lease Agreement, maintain at its
own cost an insurance policy or policies indemnifying and holding harmless
Paramount, its officers, agents and employees from, for and against any loss or
liability whatsoever incurred as a result of any event occurring upon the
Premises or occurring by reason of Lessee's operations from or occupancy of the
Premises, whether such event, in the latter case, occurs on or off the Premises.
Paramount shall be named an additional insured in said policy or policies.
Said policies shall be written by responsible insurance companies
satisfactory to Paramount, and shall have minimum comprehensive general
liability limit for Product/Completed operations and for bodily injury of
$1,000,000 each occurrence and $1,000,000 each aggregate; property damage limit
of $100,000 each occurrence and $100,000 each aggregate; a minimum comprehensive
automobile liability limit of $250,000 each person and $250,000 each occurrence;
and minimum property damage limit of $100,000 each occurrence. Policies will
provide written notice to Paramount of cancellation or of any material change in
said policy 30 days in advance of the effective date thereof.
Lessee shall also insure any improvements and equipment it adds to the
Premises, and its contents, in accordance with standard fire and extended
coverage insurance policies then in effect for similar businesses, the proceeds
of which shall be payable to Paramount and Lessee in proportion to their
respective interests.
Lessee shall provide statutory Workman's Compensation Insurance, Social
Security, Unemployment Insurance, and such other benefits as may be required by
law to its employees. Lessee shall submit evidence thereof to Paramount and
display such certificates on the Premises as may be required by law.
ARTICLE XIII
TAXES AND ASSESSMENTS
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Paramount shall pay all real estate taxes, assessments, or levies against
the real property upon which the Premises is situated and shall be responsible
for the conformance of such improvements to all applicable laws and regulations.
Lessee shall pay all other taxes, licenses and permit fees in connection with
the Premises and operation of the Exhibit.
ARTICLE XIV
RULES AND REGULATIONS
Lessee shall comply with and shall cause its agents, employees, invitees,
guests and licensees to comply with such Rules and Regulations as may be from
time to time published by the Park and/or Paramount.
Lessee shall at all times during the term of this Lease Agreement keep a
copy of such Rules and Regulations posted in a conspicuous place on the
Premises. Lessee shall at all times during the term of this Lease Agreement, and
shall cause its agents, employees, invitees, guests and licensees, to comply
with and abide by the Park's safety procedures and all aforementioned persons
will be under jurisdiction of the Park's Safety Manager.
ARTICLE XV
VEHICLE TRAFFIC, PARKING
Paramount shall regulate all traffic within the Park including the
operation and parking of vehicles of Lessee, its invitees, licensees and
patrons. Paramount shall specify from time to time in its Rules and Regulations
the regulations pertaining to the foregoing. Paramount shall provide Lessee
ingress and egress to Lessee's designated receiving door for the purpose of
receiving and shipping merchandise in such manner and at such times as Paramount
may reasonably determine. All vehicles entering the Park shall be subject to
inspection by the Park's Security Department. All vehicles delivering
merchandise on Park's property will be issued a gate pass and shall be required
to stop at the receiving department for vehicle inspection prior to leaving the
Park. The gate pass must be stamped by the receiving department and returned to
the security gate for exit clearance.
ARTICLE XVI
ASSIGNMENT, SUBLEASE, TRANSFER, LIEN
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Lessee shall not sublicense any part of the Premises, or assign, transfer
or encumber in any manner this Lease Agreement or any right, privilege, license
or interest conferred hereby.
Paramount may assign or otherwise transfer this Lease Agreement or any
portion hereof from time to time, and such transfer shall bind and inure to the
benefit of its successors and assigns. It is agreed that Paramount is
contracting the technical skills and expertise of the management and employees
of Lessee and any significant change in ownership or management of Lessee shall
require the consent of Paramount as if such change constituted an assignment of
this Lease Agreement.
Neither this Lease Agreement, nor any right, privilege, license or
interest conferred hereby shall be transferable by operation of law, by reason
of any bankruptcy, bankruptcy act, insolvency, receivership proceedings,
attachment, execution, other judicial process or sale by or against Lessee,
whether any of the same be voluntary or involuntary or judicial proceedings.
Lessee shall not permit any lien to be imposed upon the Premises or upon
any structures or improvements thereon. In the event a lien is imposed, Lessee
shall cause it to be discharged promptly. Lessee shall indemnify Paramount for
any loss, expense or cost incurred by it in connection with any such lien.
Paramount retains the right to create, or permit mortgages, trust deeds,
or other encumbrances to be imposed against and upon the Premises, any
improvements thereon or interests therein, except against property owned by
Lessee, which encumbrances, including principal, interest and costs and expenses
in connection therewith, shall be prior to and superior to the interest of
Lessee hereunder, and Lessee hereby agrees that this Lease Agreement is subject
and subordinate to any such mortgage, trust deed or other encumbrance.
ARTICLE XVII
INDEMNITY OF PARAMOUNT
Lessee, for itself and on behalf of its officers, directors, employees and
agents shall forever hold harmless Paramount (as used in this Article XVII,
Paramount shall include its parent corporation and affiliated companies and
their respective officers, directors, employees, affiliates, and agents) and
shall indemnify and defend Paramount against and from any and all liabilities,
claims, penalties, forfeitures, suits, damages, losses, actions, judgments and
all costs and expenses incident thereto, including, without limitation,
reasonable fees and disbursements of attorneys or
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consultants, arising, directly or indirectly, out of, in connection with or upon
the Premises, or the use or occupancy thereof or in the operation of the
Exhibit, except any of the foregoing caused by the willful misconduct or gross
negligence of Paramount.
ARTICLE XVIII
COMPLIANCE WITH LAWS
Lessee shall conduct itself, its business on the Premises and maintain the
Premises and Exhibit in compliance with all applicable federal, state and local
statutes, laws, ordinances, regulations, rules and any other legal requirements,
including, without limitation, the provisions of all federal, state and local
health, safety, transportation, and environmental laws and regulations, and
shall obtain all necessary permits, licenses and other consents necessary in
connection with the operation of the Exhibit. Lessee shall at all times be
responsible for the protection of persons and property and for maintaining
appropriate precautions and programs in connection with the operation of the
Exhibit.
ARTICLE XIX
DAMAGE AND DESTRUCTION OF PREMISES
In the event the Premises are destroyed, or the Park closed because of any
governmental action, whether legislative, judicial or executive, war, civil
disturbance, Act of God, fire, strike or other labor difficulty, except if
caused by Lessee, its officers, agents, employees, invitees, licensees or
patrons, and except if the same arose upon, or in connection with use of, the
Premises, the obligations of both parties to this Lease Agreement shall be
suspended during the period while the Premises are unusable and resume
thereafter. No compensation or claim whatsoever will be paid or payable by
Paramount by reasons of any loss or liability arising out of the foregoing. If
the Premises are destroyed or damaged by Lessee, its agents, employees,
invitees, licensees or patrons, Lessee shall be responsible for the costs
incurred by Paramount in repairing and restoring the Premises.
ARTICLE XX
DAMAGE WAIVER
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Lessee hereby expressly waives all claims of whatever nature for any or
all loss or damage sustained by reason of any defect, deficiency, failure or
impairment of any services to or in the Premises, including but not limited to
the water supply system, heating system, wires leading to or inside the
Premises, gas or electric or telephone which may occur from time to time from
any cause. Lessee hereby expressly releases and discharges Paramount, its
officers, agents, and employees from all demands, claims, judgments and causes
of action arising from any matter mentioned above in this Article.
ARTICLE XXI
SURRENDER OF PREMISES
Upon completion of term of this Lease Agreement, or upon early termination
thereof for any reason whatsoever, Lessee shall peaceably and quietly surrender
and deliver possession of the Premises to Paramount in good condition, ordinary
wear and tear permitted. If Paramount is due any monies, Paramount has the right
to withhold the equipment until said monies are paid in full. Otherwise,
Paramount will release and return (at Lessee's expense) all equipment remaining
on-site owned by Lessee.
ARTICLE XXII
NOTICES
All notices required or permitted to be given hereunder shall be in
writing, shall be effective upon receipt, and shall be delivered in person or
sent by Federal Express or similar courier or by United States mail, with
postage thereon prepaid, certified, addressed to Paramount Parks, Attention: Tim
V. Fisher, Executive Vice President and General Manager, Paramount's Kings
Island, 6300 King's Island Drive, King's Island, Ohio 45034; with a copy to
Paramount Parks Inc., 8720 Red Oak Blvd., Suite 315, Charlotte, NC 28217,
Attention: General Counsel and to Lessee at Attention: Rex Gay, P.O. Box 9112,
Mandeville, LA 70470-9112.
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ARTICLE XXIII
ENTIRE AGREEMENT
This Lease Agreement constitutes the entire agreement between the parties
and supersedes all agreements previously executed between the parties. This
Lease Agreement may not be modified except by written instrument executed by the
parties hereto.
ARTICLE XXIV
WAIVER
Waiver, whether by omission, commission or otherwise, at any time or from
time to time, of a partial or total breach of any of the terms, conditions or
covenants of this Lease Agreement shall not be deemed a waiver of any subsequent
breach of the same or any other term, condition or covenant. Receipt by
Paramount of payment from Lessee with or without knowledge of a breach of any
term, condition or covenant hereof, shall not be deemed a waiver of such breach,
nor shall failure to exercise any right hereunder by Paramount be deemed a
waiver of such breach.
ARTICLE XXV
RELATIONSHIP OF PARTIES
The relationship between the parties hereto is that of Lessor and Lessee
and of independent contracting parties, and is not, and shall not be deemed to
be, any other relationship, including without limiting the generality thereof,
that of joint venturers, partners or principal and agent.
ARTICLE XXVI
APPLICABLE LAW
This Lease Agreement is to be construed in accordance with the applicable
laws and rules of the state of Ohio.
ARTICLE XXVII
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SEPARABILITY
In the event any term, provision, clause, article, condition or other
portion of this Lease Agreement be held unenforceable, invalid or void, the same
shall not affect any other term, provision, clause, article, condition or other
portion of this Lease Agreement, but the remainder of this Lease Agreement shall
be effective as if such term, provision, clause, article, condition or other
portion had not been contained herein.
ARTICLE XXVIII
TERMINATION
Either party may, in addition to all other legal and equitable remedies
available to it, terminate this Lease Agreement in the event the other Party
shall fail to perform any of the covenants, terms, or conditions hereof to be
performed by such other Party and such nonperformance shall continue for a
period of thirty (30) days after notice thereof. In the event such performance
cannot be reasonably completed or performed within such thirty (30) day period,
the aggrieved Party may terminate this Lease Agreement only if the Party in
default shall not in good faith have commenced such performance within such
thirty (30) day period, or if commenced, shall not have diligently proceeded
therewith to completion.
Upon notice of termination, this Lease Agreement and the rights granted to
Lessee shall terminate immediately as if the giving of such notice were the date
fixed for the expiration of the Lease Agreement.
ARTICLE XXIX
RELOCATION OF EXHIBIT
It is recognized that the proper site selection is beneficial to and in
the best interests of both parties; provided, however, Paramount shall have the
right to relocate the operation of any Exhibit during the term of this Lease
Agreement in the event such relocation be in the best interests of the Park. In
the event a relocation is necessary, Paramount shall provide Lessee 30 days
prior written notice and shall provide a new site of substantially similar
quality. The expenses of any such relocation shall be paid by Paramount.
ARTICLE XXX
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AGREEMENT NOT TO COMPETE
Lessee hereby expressly agrees that during the term of this Lease
Agreement or any extension thereof, Lessee shall not, directly or indirectly,
sell or assist in the sale of same or similar product(s) as sold in the Park
within a 50-mile radius of the Park during the operating season of the Park,
except as otherwise agreed to in writing by Paramount.
ARTICLE XXXI
CONFIDENTIALITY
In the event either party receives any confidential information, such
party agrees to hold such information in confidence until such time as it is
made available to the public with the consent of such other party. In no event
shall either party release to any third party any terms or conditions of this
Lease Agreement without the written consent of the other party. This paragraph
shall survive termination of this Lease Agreement.
ARTICLE XXXII
ENVIRONMENTAL PROVISIONS
Lessee shall keep the Premises and Exhibit free from accumulation of any
hazardous, solid, special or toxic wastes or substances, chemicals, cleaning
substances and/or other materials (collectively "Materials") and, upon
termination of this Lease Agreement, shall remove all Materials used, handled or
generated by its operations/activities from the Premises.
Lessee shall assume legal title and liability for the handling,
transporting, storing, treating, disposing, and other future management
(collectively "Management") of any Materials used, handled or generated by
Lessee in connection with this Lease Agreement. Lessee shall at its sole cost
undertake proper Management of the Materials.
Lessee shall, at its sole cost: (i) obtain and comply with all permits,
licenses, registrations, authorizations and approvals -- including without
limitation air permits, wastewater (NPDES) permits, EPA generator identification
number -- required for the operation of the Exhibit (collectively "Permits"),
(ii) properly complete any manifests, waste profiles, and similar documents
required for the Management of Materials (collectively "Manifests"), (iii) shall
provide copies, with all required signatures, of any and all Permits and
Manifests to Paramount, and (iv) coordinate all Management of Materials with
Paramount's Loss Prevention Office.
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Lessee shall provide to Paramount emergency telephone number(s) and
contact person(s), on a 24-hour basis.
Lessee shall assign personnel to perform the Management of Materials who
are fit, qualified and competent to properly perform their assigned tasks, and
Lessee shall properly supervise such personnel. Lessee shall promptly remove and
replace any person not so fit, competent and qualified upon Paramount's request.
Notwithstanding anything herein to the contrary, Lessee shall use
transportation, treatment, storage and/or disposal companies and/or facilities
that have valid and effective Permits required under all applicable federal,
state and local laws, regulations, rules, ordinances or orders necessary to
allow such facilities to transport, accept, store, treat, process, or dispose of
the Materials. Neither Lessee nor any transportation, treatment, storage, or
disposal company and/or facility used by Lessee shall be in violation of any
terms or conditions of such Permits.
Lessee shall, at its sole cost: (a) keep and maintain secondary
containment for all Materials stored on the Premises, (b) erect a seismic
bracing for any Materials located on shelves throughout the Premises, (c) ensure
that all employees who work with any Materials receive the appropriate OSHA
training, and (d) provide documentation to Paramount of all OSHA training.
ARTICLE XXXIII
YEAR 2000 COMPLIANCE
Lessee warrants that the Exhibit has been designed or modified and fully
tested in such a manner that the Exhibit will not generate any invalid and/or
incorrect date-related results or cause any of the problems commonly referred to
as "Year 2000 problems" and will, without interruption or manual intervention,
continue to operate consistently, predictably and accurately and in accordance
with all of the requirements of this Agreement, including without limitation,
meeting all specifications and/or functionality and performance requirements,
when used during any year prior to, during or after the calendar year 2000.
ARTICLE XXXIV
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EQUAL OPPORTUNITY
The parties hereto agree that they will not engage in any discriminatory
practices based on race, color, sex, age, religion, national origin, sexual
orientation or physical or mental disability and that they will comply with all
applicable provisions of Executive Order 11246, The Vietnam Era Veterans
Readjustment Act of 1974 and The Rehabilitation Act of 1973, and of the rules,
regulations and relevant orders issued pursuant thereto including, without
limitation, the applicable provisions of 41 CFR 60-1.4, 60-250 and 60-741.4,
which are incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the
day and year first above written.
RX TECHNOLOGIES
By: /s/ Rex Gay
-------------------------------
Name: Rex Gay
Title: President
RX Technologies
PARAMOUNT PARKS INC.
By: /s/ Tim V. Fisher
-------------------------------
Name: Tim V. Fisher
Title: Executive Vice President and
General Manager
Paramount's Kings Island
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EXHIBIT A
ATTACHMENT TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGIES (LESSEE)
DESCRIPTION OF EXHIBIT
Lessee shall operate four (4) location to be located at the Beast, the
Vortex, Outer Limits, and the Taxi Jam rides. Lessee shall produce and sell
photos of guests on these rides as well as providing the service of sending
those pictures via e-mail. Lessee shall provide all equipment and supplies to
insure a quality product to Park guests.
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ADDENDUM A
ADDENDUM TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGIES (LESSEE)
o Paramount shall be permitted, but not required, to pay invoices which are
the responsibility of Lessee and to deduct same from amounts due Lessee
when, to do so, in Paramount's sole judgment, is necessary to protect the
good name and reputation of Paramount.
o As required in Article XII, Lessee shall insure all improvements and
equipment it adds to the premises, and its contents (including inventory,
office equipment, etc.) in accordance with standard fire and extended
coverage insurance policies, the proceeds of which will be payable to
Paramount and Lessee in proportion of their interests.
o Lessee acknowledges that all employees used to operate the Exhibit are
Lessee's employees as stipulated in Article X. Lessee warrants that
required taxes, withholding, etc. will be paid on these employees.
o The failure of either Party to insist upon a strict performance of this
Lease Agreement, or any of the terms and conditions thereof, shall not be
deemed a waiver of any rights or remedies that such Party may have and
shall not be deemed a waiver of any subsequent breach or default in any of
such terms and conditions.
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ADDENDUM B
ADDENDUM TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGIES (LESSEE)
CREDIT CARD SALES - Lessee may make sales utilizing Paramount's Credit Card
accounts (presently VISA, MASTER CARD, and DISCOVER), however, it is understood
that all credit charges are for Lessee's account only. In other words, Paramount
will receive as rent the percentage specified herein and all credit charges
(including charge backs, dealer discount*, etc.) will be deducted from Lessee's
share of revenue.
Cash register shortages (not errors), if any, are for Lessee's account
only and do not affect the rent paid to Paramount.
* Credit card companies charge a percentage of their individual charge
ticket value for the privilege of using their card. That fee is referred
to above as "discount". In cases where Lessee utilizes all or more than
one of the cards a blended rate may be used.
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Exhibit 10.3
Paramount's Kings Island
Taxi
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CONCESSION LEASE AGREEMENT
This Agreement, made and entered into this 15th day of February, 2000, by
and between PARAMOUNT PARKS INC., a Delaware corporation (herein called
"Paramount") and RX TECHNOLOGIES (herein called "Lessee").
W I T N E S S E T H:
In consideration of the mutual covenants, terms, provisions and conditions
herein contained, the parties hereto represent, warrant and agree as follows:
ARTICLE I
LICENSE AND TERM
Paramount owns and operates a theme park known as Paramount's Kings Island
(the "Park") located in King's Island, Ohio.
Paramount hereby licenses to Lessee, and Lessee hereby licenses from
Paramount, the premises in the Park described in Exhibit A attached hereto
(herein called "Premises") together with ingress and egress for a period
commencing as of 1 April 2000 and ending 1 November 2000, which period is herein
called the "term" of this Lease Agreement.
Except as specifically set forth herein, no easements, appurtenances,
hereditaments, or other rights or interests whatsoever, are licensed or
otherwise granted hereby in the Park.
ARTICLE II
USE OF PREMISES
Lessee shall operate four (4) locations (herein called "Exhibit") on the
Premises for the purpose of producing and selling photographs of guests, as well
as providing the service of transmitting those pictures via e-mail, at the
Beast, Vortex, Outer Limits, and Taxi Jam rides as further set forth and
described on Exhibit A hereto. Lessee may not use the Premises for any other
purpose or conduct without the prior written consent of Paramount.
In case any doubt arises regarding the proper use of the Premises, Lessee
will submit a request in writing to Paramount for an interpretation and
determination of its rights under this Article. Paramount's decision thereon in
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writing, based upon the operating plans and policies of the Park and based upon
the description of Lessee's Exhibit hereunder, shall be final; provided that
such determination shall be in the sole discretion of Paramount. Lessee shall
not take any action without receiving, or in contravention of, such
determination.
All items to be sold or given away and all items used in the preparation
of items so sold or given away at Lessee's Exhibit shall be of the highest
quality. Paramount reserves the right to prohibit Lessee from distributing items
which are not, in its sole discretion, of the highest quality or the
distribution of which, in its sole discretion, is not consistent with the
reputation of the Park.
All items sold by Lessee at the Park shall be sold at prices mutually
agreed upon by Paramount and Lessee.
ARTICLE III
CONSTRUCTION AND INSTALLATION OF EXHIBIT
Lessee shall plan, install and erect any additions to and improvements
upon the Premises required for the Exhibit. Such improvements shall be of the
highest quality, of sound and safe structure, and in accordance with the
policies, motifs, designs, and overall planning for the Park and the particular
theme areas thereof in which such improvements shall be installed. Improvements
made by Lessee shall be subject to Paramount's prior written approval.
Lessee agrees to promptly reimburse Paramount for all construction costs
incurred based on cost estimate mutually agreed upon by both parties.
Lessee agrees to incorporate to Paramount's satisfaction and at its own
cost new technology into the Exhibit as it becomes available in order to
maximize revenues.
ARTICLE IV
TITLE TO TRADE FIXTURES, IMPROVEMENTS, EQUIPMENT
Any improvements, other than trade fixtures installed on the Premises by
Lessee with Paramount's prior approval, made on or to the Premises, shall, upon
termination of this Lease Agreement, become a part of the Premises, title to
which shall be vested in Paramount. Upon the termination of this Lease
Agreement, Lessee shall have the right to remove all trade fixtures installed by
Lessee, title to which it has retained, from the Premises and shall, at its
expense,
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repair and restore the Premises (including all improvements thereto) to the same
condition as before such fixtures were installed, ordinary wear and tear
excepted.
ARTICLE V
ALTERATIONS
Paramount reserves the right to make any changes, alterations,
improvements or additions near or around the Premises. Such changes may include
changes in the exterior design of any structures and changes in location of
streets, sidewalks and other outdoor facilities. Lessee shall not be entitled to
any damages or compensation on account of any of the foregoing.
Lessee shall make no alterations, additions or improvements to the
Premises or any structures thereon or add any improvements or equipment without
the prior written consent of Paramount.
ARTICLE VI
ACCESS OF PARAMOUNT
Paramount, its agents and employees retain the right to enter upon and
inspect all portions of the Premises and Exhibit at any reasonable time. In the
event entry is necessary and Lessee is not present to permit such entry,
Paramount may enter the Premises, forcibly or otherwise, without rendering
itself or its agents or employees liable to any claim or cause of action for
damages, except as provided below, and without affecting the obligations and
covenants of this Lease Agreement. In the event Paramount's action causes damage
to Lessee's property upon the Premises, Paramount shall repair or replace such
damaged property unless such action was necessitated by Lessee's negligence or
willful misconduct.
Paramount shall have the right to enter upon the Premises to accomplish
such work as may be necessary to preserve the walls, structure, or other parts
of the Premises or its contents from damage.
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ARTICLE VII
REPAIRS; MAINTENANCE
Paramount shall keep and generally maintain buildings and equipment on the
Premises in good condition and repair, keeping and maintaining the same in a
safe, sanitary and workable condition. Lessee shall, at its expense, maintain
all trade fixtures in a safe, sanitary and workable condition.
ARTICLE VIII
UTILITIES
Paramount shall provide all water and electricity required to operate the
Exhibit during the term of this Lease Agreement, provided that Paramount shall
not be responsible if circumstances beyond its control result in any disruption
in such services.
Lessee shall pay for administrative (support) services, which include, but
are not limited to, long distance telephone service, faxes and copying.
ARTICLE IX
PAYMENT AND FINANCIAL REPORTS
In consideration of the license and use of the Premises and the mutual
covenants, terms and provisions contained in this Lease Agreement, Paramount
shall be entitled to an amount equal to forty-five (45%) of Lessee's gross sales
at the park during the term of this lease agreement. Gross sales shall include
all monies and other things of value received by or paid to Lessee.
In determining gross receipts from the Exhibit's sales, there shall not be
included therein the amount of any sales tax, dishonored checks, credit card
charge backs or refunds made in the ordinary course of business. Paramount shall
remit any sales tax collected on sales of the Exhibit to the proper taxing
authority.
All sales made by Lessee at the Park shall be rung on a cash register
specified by Paramount and provided by Lessee. Lessee shall deliver all receipts
to the Park's Accounting Department at the close of each business day. On a
weekly basis and in accordance with the Park's general accounting schedule,
Paramount shall remit to Lessee, Lessee's
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share of the gross receipts made by Lessee less any amount owed to Paramount
hereunder. Any shortage of gross receipts shall be the responsibility of Lessee.
Paramount and its accountants shall have full access at reasonable times
to examine the books, cash registers, accounts, vouchers, working papers and
other records of Lessee pertaining to the operation of the Exhibit for the
purpose of checking and/or verifying the gross receipts of the Exhibit and any
other information pertinent to this Lease Agreement.
ARTICLE X
OPERATION OF EXHIBIT
Lessee shall operate its Exhibit using its best efforts, skill and
diligence in the conduct of its business, and Lessee shall maintain sufficient
materials, supplies and merchandise in stock, an adequate sales force, and
regulate its employees and servants so that they will be courteous and helpful
to the public. Paramount shall have the right to participate in the operation of
the Exhibit to the extent it deems necessary to ensure the quality of the
operation.
Lessee shall provide and employ the operating personnel to operate the
Exhibit, and Paramount and Lessee shall mutually determine the number of
personnel necessary to adequately operate the Exhibit. Lessee and Paramount
shall mutually determine the special skills required, if any, for such
personnel. Lessee agrees to train and supervise such personnel. Such personnel
shall be employed by Lessee. Paramount will attempt to inform Lessee of all
pertinent laws and regulations (labor and general), both Federal and State,
applicable to the Exhibit, provided that Paramount shall assume no obligation or
responsibility for Lessee's compliance with such laws or regulations regardless
of whether Paramount has or has not so informed Lessee. Lessee agrees to abide
by all such laws and regulations.
Lessee shall keep the Exhibit fully open for business during every day of
the week, including Sundays and legal holidays, in accordance with the hourly
and daily schedule of the Park to be issued by Paramount; Lessee shall operate
the Exhibit during the hours and on the days set forth in said schedule as
issued from time to time.
Lessee shall keep upon the Premises at all reasonable times at least one
qualified representative, authorized to represent and act for Lessee in matters
pertaining to the operation of, or other questions arising in connection with,
the Exhibit and Premises and shall keep Paramount informed in writing of the
identity of such persons. In the event
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Paramount so requests, Lessee shall promptly replace its qualified
representative with another individual reasonably suitable to Paramount.
Lessee and Paramount shall mutually agree upon costumes for all line
personnel. If the costumes are provided by Paramount, Lessee shall reimburse
Paramount for any loss of or damage to the costumes during the operating
seasons, ordinary wear and tear excepted. Lessee agrees to have its management
personnel and qualified representatives dress in the manner appropriate to the
Park's image.
Lessee agrees to have all personnel abide by Paramount's employment
policies, a copy of which will be provided to Lessee.
Lessee agrees not to employ nor seek to employ, directly or indirectly,
any employee of Paramount within 90 days of that employee's termination, without
the prior written consent of Paramount. If Lessee breaches this provision,
Lessee agrees to pay Paramount liquidated damages in the amount of twice the
annual salary of the employee (while employed by Paramount). Any former
Paramount employee hired by Lessee to operate the Exhibit must have a
satisfactory rehire status from Paramount.
The parties acknowledge that the equipment provided under this Lease
Agreement shall, at all times, be in the care, custody and control of Lessee.
Consistent with same, Lessee, at all times shall assume full responsibility and
liability for said equipment.
ARTICLE XI
ADVERTISING, PUBLICITY, SIGNS
Lessee shall not have the right to use, and shall not use, in any way or
for any purpose, the names or any similar name nor any characters, designs,
symbols, representations, figures, drawings, ideas, or other matter or materials
developed, held or owned by Paramount, except that during the term of this Lease
Agreement Lessee may use photographs or other representations of the Exhibit or
of the Park in connection with advertising or publicity; provided, however, that
Paramount shall have the right to approve any such photographs or
representations as set forth below. Prior to the exercise of any right set forth
in this Article, Lessee shall submit to Paramount all advertising copy, all data
in connection with its advertising programs, all art work and all other
advertising or promotional material together with a statement as to the use of
which the same will be put and the media through which, and the period of time
during
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which, it will be exhibited, distributed, and displayed. Lessee shall not use
any of the same without first obtaining in writing in each and every case the
specific approval of Paramount. Lessee shall affix any and all copyright notices
required by law in connection with the exercise of any rights set forth in this
Article.
ARTICLE XII
INSURANCE
Lessee shall, throughout the term of this Lease Agreement, maintain at its
own cost an insurance policy or policies indemnifying and holding harmless
Paramount, its officers, agents and employees from, for and against any loss or
liability whatsoever incurred as a result of any event occurring upon the
Premises or occurring by reason of Lessee's operations from or occupancy of the
Premises, whether such event, in the latter case, occurs on or off the Premises.
Paramount shall be named an additional insured in said policy or policies.
Said policies shall be written by responsible insurance companies
satisfactory to Paramount, and shall have minimum comprehensive general
liability limit for Product/Completed operations and for bodily injury of
$l,000,000 each occurrence and $1,000,000 each aggregate; property damage limit
of $l00,000 each occurrence and $100,000 each aggregate; a minimum comprehensive
automobile liability limit of $250,000 each person and $250,000 each occurrence;
and minimum property damage limit of $l00,000 each occurrence. Policies will
provide written notice to Paramount of cancellation or of any material change in
said policy 30 days in advance of the effective date thereof.
Lessee shall also insure any improvements and equipment it adds to the
Premises, and its contents, in accordance with standard fire and extended
coverage insurance policies then in effect for similar businesses, the proceeds
of which shall be payable to Paramount and Lessee in proportion to their
respective interests.
Lessee shall provide statutory Workman's Compensation Insurance, Social
Security, Unemployment Insurance, and such other benefits as may be required by
law to its employees. Lessee shall submit evidence thereof to Paramount and
display such certificates on the Premises as may be required by law.
ARTICLE XIII
TAXES AND ASSESSMENTS
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Paramount shall pay all real estate taxes, assessments, or levies against
the real property upon which the Premises is situated and shall be responsible
for the conformance of such improvements to all applicable laws and regulations.
Lessee shall pay all other taxes, licenses and permit fees in connection with
the Premises and operation of the Exhibit.
ARTICLE XIV
RULES AND REGULATIONS
Lessee shall comply with and shall cause its agents, employees, invitees,
guests and licensees to comply with such Rules and Regulations as may be from
time to time published by the Park and/or Paramount.
Lessee shall at all times during the term of this Lease Agreement keep a
copy of such Rules and Regulations posted in a conspicuous place on the
Premises. Lessee shall at all times during the term of this Lease Agreement, and
shall cause its agents, employees, invitees, guests and licensees, to comply
with and abide by the Park's safety procedures and all aforementioned persons
will be under jurisdiction of the Park's Safety Manager.
ARTICLE XV
VEHICLE TRAFFIC, PARKING
Paramount shall regulate all traffic within the Park including the
operation and parking of vehicles of Lessee, its invitees, licensees and
patrons. Paramount shall specify from time to time in its Rules and Regulations
the regulations pertaining to the foregoing. Paramount shall provide Lessee
ingress and egress to Lessee's designated receiving door for the purpose of
receiving and shipping merchandise in such manner and at such times as Paramount
may reasonably determine. All vehicles entering the Park shall be subject to
inspection by the Park's Security Department. All vehicles delivering
merchandise on Park's property will be issued a gate pass and shall be required
to stop at the receiving department for vehicle inspection prior to leaving the
Park. The gate pass must be stamped by the receiving department and returned to
the security gate for exit clearance.
ARTICLE XVI
ASSIGNMENT, SUBLEASE, TRANSFER. LIEN
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Lessee shall not sublicense any part of the Premises, or assign, transfer
or encumber in any manner this Lease Agreement or any right, privilege, license
or interest conferred hereby.
Paramount may assign or otherwise transfer this Lease Agreement or any
portion hereof from time to time, and such transfer shall bind and inure to the
benefit of its successors and assigns. It is agreed that Paramount is
contracting the technical skills and expertise of the management and employees
of Lessee and any significant change in ownership or management of Lessee shall
require the consent of Paramount as if such change constituted an assignment of
this Lease Agreement.
Neither this Lease Agreement, nor any right, privilege, license or
interest conferred hereby shall be transferable by operation of law, by reason
of any bankruptcy, bankruptcy act, insolvency, receivership proceedings,
attachment, execution, other judicial process or sale by or against Lessee,
whether any of the same be voluntary or involuntary or judicial proceedings.
Lessee shall not permit any lien to be imposed upon the Premises or upon
any structures or improvements thereon. In the event a lien is imposed, Lessee
shall cause it to be discharged promptly. Lessee shall indemnify Paramount for
any loss, expense or cost incurred by it in connection with any such lien.
Paramount retains the right to create, or permit mortgages, trust deeds,
or other encumbrances to be imposed against and upon the Premises, any
improvements thereon or interests therein, except against property owned by
Lessee, which encumbrances, including principal, interest and costs and expenses
in connection therewith, shall be prior to and superior to the interest of
Lessee hereunder, and Lessee hereby agrees that this Lease Agreement is subject
and subordinate to any such mortgage, trust deed or other encumbrance.
ARTICLE XVII
INDEMNITY OF PARAMOUNT
Lessee, for itself and on behalf of its officers, directors, employees and
agents shall forever hold harmless Paramount (as used in this Article XVII,
Paramount shall include its parent corporation and affiliated companies and
their respective officers, directors, employees, affiliates, and agents) and
shall indemnify and defend Paramount against and from any and all liabilities,
claims, penalties, forfeitures, suits, damages, losses, actions, judgments and
all costs and expenses incident thereto, including, without limitation,
reasonable fees and disbursements of attorneys or
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consultants, arising, directly or indirectly, out of, in connection with or upon
the Premises, or the use or occupancy thereof or in the operation of the
Exhibit, except any of the foregoing caused by the willful misconduct or gross
negligence of Paramount.
ARTICLE XVIII
COMPLIANCE WITH LAWS
Lessee shall conduct itself, its business on the Premises and maintain the
Premises and Exhibit in compliance with all applicable federal, state and local
statutes, laws, ordinances, regulations, rules and any other legal requirements,
including, without limitation, the provisions of all federal, state and local
health, safety, transportation, and environmental laws and regulations, and
shall obtain all necessary permits, licenses and other consents necessary in
connection with the operation of the Exhibit. Lessee shall at all times be
responsible for the protection of persons and property and for maintaining
appropriate precautions and programs in connection with the operation of the
Exhibit.
ARTICLE XIX
DAMAGE AND DESTRUCTION OF PREMISES
In the event the Premises are destroyed, or the Park closed because of any
governmental action, whether legislative, judicial or executive, war, civil
disturbance, Act of God, fire, strike or other labor difficulty, except if
caused by Lessee, its officers, agents, employees, invitees, licensees or
patrons, and except if the same arose upon, or in connection with use of, the
Premises, the obligations of both parties to this Lease Agreement shall be
suspended during the period while the Premises are unusable and resume
thereafter. No compensation or claim whatsoever will be paid or payable by
Paramount by reasons of any loss or liability arising out of the foregoing. If
the Premises are destroyed or damaged by Lessee, its agents, employees,
invitees, licensees or patrons, Lessee shall be responsible for the costs
incurred by Paramount in repairing and restoring the Premises.
ARTICLE XX
DAMAGE WAIVER
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Lessee hereby expressly waives all claims of whatever nature for any or
all loss or damage sustained by reason of any defect, deficiency, failure or
impairment of any services to or in the Premises, including but not limited to
the water supply system, heating system, wires leading to or inside the
Premises, gas or electric or telephone which may occur from time to time from
any cause. Lessee hereby expressly releases and discharges Paramount, its
officers, agents, and employees from all demands, claims, judgments and causes
of action arising from any matter mentioned above in this Article.
ARTICLE XXI
SURRENDER OF PREMISES
Upon completion of term of this Lease Agreement, or upon early termination
thereof for any reason whatsoever, Lessee shall peaceably and quietly surrender
and deliver possession of the Premises to Paramount in good condition, ordinary
wear and tear permitted. If Paramount is due any monies, Paramount has the right
to withhold the equipment until said monies are paid in full. Otherwise,
Paramount will release and return (at Lessee's expense) all equipment remaining
on-site owned by Lessee.
ARTICLE XXII
NOTICES
All notices required or permitted to be given hereunder shall be in
writing, shall be effective upon receipt, and shall be delivered in person or
sent by Federal Express or similar courier or by United States mail, with
postage thereon prepaid, certified, addressed to Paramount Parks, Attention: Tim
V. Fisher, Executive Vice President and General Manager, Paramount's Kings
Island, 6300 King's Island Drive, King's Island, Ohio 45034; with a copy to
Paramount Parks Inc., 8720 Red Oak Blvd., Suite 315, Charlotte, NC 28217,
Attention: General Counsel and to Lessee at Attention: Rex Gay, P.O. Box 9112,
Mandeville, LA 70470-9112.
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ARTICLE XXIII
ENTIRE AGREEMENT
This Lease Agreement constitutes the entire agreement between the parties
and supersedes all agreements previously executed between the parties. This
Lease Agreement may not be modified except by written instrument executed by the
parties hereto.
ARTICLE XXIV
WAIVER
Waiver, whether by omission, commission or otherwise, at any time or from
time to time, of a partial or total breach of any of the terms, conditions or
covenants of this Lease Agreement shall not be deemed a waiver of any subsequent
breach of the same or any other term, condition or covenant. Receipt by
Paramount of payment from Lessee with or without knowledge of a breach of any
term, condition or covenant hereof, shall not be deemed a waiver of such breach,
nor shall failure to exercise any right hereunder by Paramount be deemed a
waiver of such breach.
ARTICLE XXV
RELATIONSHIP OF PARTIES
The relationship between the parties hereto is that of Lessor and Lessee
and of independent contracting parties, and is not, and shall not be deemed to
be, any other relationship, including without limiting the generality thereof,
that of joint venturers, partners or principal and agent.
ARTICLE XXVI
APPLICABLE LAW
This Lease Agreement is to be construed in accordance with the applicable
laws and rules of the state of Ohio.
ARTICLE XXVII
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SEPARABILITY
In the event any term, provision, clause, article, condition or other
portion of this Lease Agreement be held unenforceable, invalid or void, the same
shall not affect any other term, provision, clause, article, condition or other
portion of this Lease Agreement, but the remainder of this Lease Agreement shall
be effective as if such term, provision, clause, article, condition or other
portion had not been contained herein.
ARTICLE XXVIII
TERMINATION
Either party may, in addition to all other legal and equitable remedies
available to it, terminate this Lease Agreement in the event the other Party
shall fail to perform any of the covenants, terms, or conditions hereof to be
performed by such other Party and such nonperformance shall continue for a
period of thirty (30) days after notice thereof. In the event such performance
cannot be reasonably completed or performed within such thirty (30) day period,
the aggrieved Party may terminate this Lease Agreement only if the Party in
default shall not in good faith have commenced such performance within such
thirty (30) day period, or if commenced, shall not have diligently proceeded
therewith to completion.
Upon notice of termination, this Lease Agreement and the rights granted to
Lessee shall terminate immediately as if the giving of such notice were the date
fixed for the expiration of the Lease Agreement.
ARTICLE XXIX
RELOCATION OF EXHIBIT
It is recognized that the proper site selection is beneficial to and in
the best interests of both parties; provided, however, Paramount shall have the
right to relocate the operation of any Exhibit during the term of this Lease
Agreement in the event such relocation be in the best interests of the Park. In
the event a relocation is necessary, Paramount shall provide Lessee 30 days
prior written notice and shall provide a new site of substantially similar
quality. The expenses of any such relocation shall be paid by Paramount.
ARTICLE XXX
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AGREEMENT NOT TO COMPETE
Lessee hereby expressly agrees that during the term of this Lease
Agreement or any extension thereof, Lessee shall not, directly or indirectly,
sell or assist in the sale of same or similar product(s) as sold in the Park
within a 50-mile radius of the Park during the operating season of the Park,
except as otherwise agreed to in writing by Paramount.
ARTICLE XXXI
CONFIDENTIALITY
In the event either party receives any confidential information, such
party agrees to hold such information in confidence until such time as it is
made available to the public with the consent of such other party. In no event
shall either party release to any third party any terms or conditions of this
Lease Agreement without the written consent of the other party. This paragraph
shall survive termination of this Lease Agreement.
ARTICLE XXXII
ENVIRONMENTAL PROVISIONS
Lessee shall keep the Premises and Exhibit free from accumulation of any
hazardous, solid, special or toxic wastes or substances, chemicals, cleaning
substances and/or other materials (collectively "Materials") and, upon
termination of this Lease Agreement, shall remove all Materials used, handled or
generated by its operations/activities from the Premises.
Lessee shall assume legal title and liability for the handling,
transporting, storing, treating, disposing, and other future management
(collectively "Management") of any Materials used, handled or generated by
Lessee in connection with this Lease Agreement. Lessee shall at its sole cost
undertake proper Management of the Materials.
Lessee shall, at its sole cost: (i) obtain and comply with all permits,
licenses, registrations, authorizations and approvals -- including without
limitation air permits, wastewater (NPDES) permits, EPA generator identification
number -- required for the operation of the Exhibit (collectively "Permits"),
(ii) properly complete any manifests, waste profiles, and similar documents
required for the Management of Materials (collectively "Manifests"), (iii) shall
provide copies, with all required signatures, of any and all Permits and
Manifests to Paramount, and (iv) coordinate all Management of Materials with
Paramount's Loss Prevention Office.
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Lessee shall provide to Paramount emergency telephone number(s) and
contact person(s), on a 24-hour basis.
Lessee shall assign personnel to perform the Management of Materials who
are fit, qualified and competent to properly perform their assigned tasks, and
Lessee shall properly supervise such personnel. Lessee shall promptly remove and
replace any person not so fit, competent and qualified upon Paramount's request.
Notwithstanding anything herein to the contrary, Lessee shall use
transportation, treatment, storage and/or disposal companies and/or facilities
that have valid and effective Permits required under all applicable federal,
state and local laws, regulations, rules, ordinances or orders necessary to
allow such facilities to transport, accept, store, treat, process, or dispose of
the Materials. Neither Lessee nor any transportation, treatment, storage, or
disposal company and/or facility used by Lessee shall be in violation of any
terms or conditions of such Permits.
Lessee shall, at its sole cost: (a) keep and maintain secondary
containment for all Materials stored on the Premises, (b) erect a seismic
bracing for any Materials located on shelves throughout the Premises, (c) ensure
that all employees who work with any Materials receive the appropriate OSHA
training, and (d) provide documentation to Paramount of all OSHA training.
ARTICLE XXXIII
YEAR 2000 COMPLIANCE
Lessee warrants that the Exhibit has been designed or modified and fully
tested in such a manner that the Exhibit will not generate any invalid and/or
incorrect date-related results or cause any of the problems commonly referred to
as "Year 2000 problems" and will, without interruption or manual intervention,
continue to operate consistently, predictably and accurately and in accordance
with all of the requirements of this Agreement, including without limitation,
meeting all specifications and/or functionality and performance requirements,
when used during any year prior to, during or after the calendar year 2000.
ARTICLE XXXIV
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EQUAL OPPORTUNITY
The parties hereto agree that they will not engage in any discriminatory
practices based on race, color, sex, age, religion, national origin, sexual
orientation or physical or mental disability and that they will comply with all
applicable provisions of Executive Order 11246, The Vietnam Era Veterans
Readjustment Act of 1974 and The Rehabilitation Act of 1973, and of the rules,
regulations and relevant orders issued pursuant thereto including, without
limitation, the applicable provisions of 41 CFR 60-1.4, 60-250 and 60-741.4,
which are incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the
day and year first above written.
RX TECHNOLOGIES
By: /s/ Donald Rex Gay
-------------------------------
Name: Rex Gay
Title: President
RX Technologies
PARAMOUNT PARKS INC.
By: /s/ Tim V. Fisher
-------------------------------
Name: Tim V. Fisher
Title: Executive Vice President and
General Manager
Paramount's Kings Island
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EXHIBIT A
ATTACHMENT TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGIES (LESSEE)
DESCRIPTION OF EXHIBIT
Lessee shall operate four (4) location to be located at the Beast, the Vortex,
Outer Limits, and the Taxi Jam rides. Lessee shall produce and sell photos of
guests on these rides as well as providing the service of sending those pictures
via e-mail. Lessee shall provide all equipment and supplies to insure a quality
product to Park guests.
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ADDENDUM A
ADDENDUM TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RN TECHNOLOGIES (LESSEE)
o Paramount shall be permitted, but not required, to pay invoices which are
the responsibility of Lessee and to deduct same from amounts due Lessee
when, to do so, in Paramount's sole judgment, is necessary to protect the
good name and reputation of Paramount.
o As required in Article XII, Lessee shall insure all improvements and
equipment it adds to the premises, and its contents (including inventory,
office equipment, etc.) in accordance with standard fire and extended
coverage insurance policies, the proceeds of which will be payable to
Paramount and Lessee in proportion of their interests.
o Lessee acknowledges that all employees used to operate the Exhibit are
Lessee's employees as stipulated in Article X. Lessee warrants that
required taxes, withholding, etc. will be paid on these employees.
o The failure of either Party to insist upon a strict performance of this
Lease Agreement, or any of the terms and conditions thereof, shall not be
deemed a waiver of any rights or remedies that such Party may have and
shall not be deemed a waiver of any subsequent breach or default in any of
such terms and conditions.
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ADDENDUM B
ADDENDUM TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RN TECHNOLOGIES (LESSEE)
CREDIT CARD SALES - Lessee may make sales utilizing Paramount's Credit Card
accounts (presently VISA, MASTER CARD, and DISCOVER), however, it is understood
that all credit charges are for Lessee's account only. In other words, Paramount
will receive as rent the percentage specified herein and all credit charges
(including charge backs, dealer discount*, etc.) will be deducted from Lessee's
share of revenue.
Cash register shortages (not errors), if any, are for Lessee's account
only and do not affect the rent paid to Paramount.
* Credit card companies charge a percentage of their individual charge
ticket value for the privilege of using their card. That fee is referred
to above as "discount". In cases where Lessee utilizes all or more than
one of the cards a blended rate may be used.
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Exhibit 10.4
Paramount's Great America
Stealth
(Renewal Pending)
<PAGE>
CONCESSION LEASE AGREEMENT
This Agreement, made and entered into this 1st day of December, 1999, by
and between PARAMOUNT PARKS INC., a Delaware corporation (herein called
"Paramount") and RX Technology (herein called "Lessee").
W I T N E S S E T H:
In consideration of the mutual covenants, terms, provisions and conditions
herein contained, the parties hereto represent, warrant and agree as follows:
ARTICLE I
LICENSE AND TERM
Paramount owns and operates a theme Park known as Paramount's Great
America (the "Park") located in Santa Clara, California.
Paramount hereby licenses to Lessee, and Lessee hereby licenses from
Paramount, the premises in the Park described in Exhibit A attached hereto
(herein called "Premises") together with ingress and egress for a period
commencing as of February 1, 2000 and ending December 31, 2003, which period is
herein called the "term" of this Lease Agreement.
Except as specifically set forth herein, no easements, appurtenances,
hereditaments, or other rights or interests whatsoever, are licensed or
otherwise granted hereby in the Park.
ARTICLE II
USE OF PREMISES
Lessee shall operate photosystems at the rides Logger's Run, Top Gun,
Green Slime Coaster and Invertigo (herein called "Exhibit") on the Premises for
the purpose of taking photos of guests as further set forth and described on
Exhibit A hereto. Lessee may not use the Premises for any other purpose or
conduct without the prior written consent of Paramount.
In case any doubt arises regarding the proper use of the Premises, Lessee
will submit a request in writing to Paramount for an interpretation and
determination of its rights under this Article. Paramount's decision thereon in
writing, based upon the operating plans and policies of the Park and based upon
the description of Lessee's Exhibit
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hereunder, shall be final; provided that such determination shall be in the sole
discretion of Paramount. Lessee shall not take any action without receiving, or
in contravention of, such determination.
All items to be sold or given away and all items used in the preparation
of items so sold or given away at Lessee's Exhibit shall be of the highest
quality. Paramount reserves the right to prohibit Lessee from distributing items
which are not, in its sole discretion, of the highest quality or the
distribution of which, in its sole discretion, is not consistent with the
reputation of the Park.
All items sold by Lessee at the Park shall be sold at prices mutually
agreed upon by Paramount and Lessee.
ARTICLE III
CONSTRUCTION AND INSTALLATION OF EXHIBIT
Lessee shall plan, install and erect any additions to and improvements
upon the Premises required for the Exhibit. Such improvements shall be of the
highest quality, of sound and safe structure, and in accordance with the
policies, motifs, designs, and overall planning for the Park and the particular
theme areas thereof in which such improvements shall be installed. Improvements
made by Lessee shall be subject to Paramount's prior written approval.
Lessee agrees to promptly reimburse Paramount for all construction costs
incurred based on cost estimate mutually agreed upon by both parties.
Lessee agrees to incorporate to Paramount's satisfaction and at its own
cost new technology into the Exhibit as it becomes available in order to
maximize revenues.
ARTICLE IV
TITLE TO TRADE FIXTURES, IMPROVEMENTS, EQUIPMENT
Any improvements, other than trade fixtures installed on the Premises by
Lessee with Paramount's prior approval, made on or to the Premises, shall, upon
termination of this Lease Agreement, become a part of the Premises, title to
which shall be vested in Paramount. Upon the termination of this Lease
Agreement, Lessee shall have the right to remove all trade fixtures installed by
Lessee, title to which it has retained, from the Premises and shall, at its
expense, repair and restore the Premises (including all improvements thereto) to
the same condition as before such fixtures were installed, ordinary wear and
tear excepted.
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ARTICLE V
ALTERATIONS
Paramount reserves the right to make any changes, alterations,
improvements or additions near or around the Premises. Such changes may include
changes in the exterior design of any structures and changes in location of
streets, sidewalks and other outdoor facilities. Lessee shall not be entitled to
any damages or compensation on account of any of the foregoing.
Lessee shall make no alterations, additions or improvements to the
Premises or any structures thereon or add any improvements or equipment without
the prior written consent of Paramount.
ARTICLE VI
ACCESS OF PARAMOUNT
Paramount, its agents and employees retain the right to enter upon and
inspect all portions of the Premises and Exhibit at any reasonable time. In the
event entry is necessary and Lessee is not present to permit such entry,
Paramount may enter the Premises, forcibly or otherwise, without rendering
itself or its agents or employees liable to any claim or cause of action for
damages, except as provided below, and without affecting the obligations and
covenants of this Lease Agreement. In the event Paramount's action causes damage
to Lessee's property upon the Premises, Paramount shall repair or replace such
damaged property unless such action was necessitated by Lessee's negligence or
willful misconduct.
Paramount shall have the right to enter upon the Premises to accomplish
such work as may be necessary to preserve the walls, structure, or other parts
of the Premises or its contents from damage.
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ARTICLE VII
REPAIRS: MAINTENANCE
Paramount shall keep and generally maintain buildings and equipment on the
Premises in good condition and repair, keeping and maintaining the same in a
safe, sanitary and workable condition. Lessee shall, at its expense, maintain
all trade fixtures in a safe, sanitary and workable condition.
ARTICLE VIII
UTILITIES
Paramount shall provide all water and electricity required to operate the
Exhibit during the term of this Lease Agreement, provided that Paramount shall
not be responsible if circumstances beyond its control result in any disruption
in such services.
Lessee shall pay for administrative (support) services, which include, but
are not limited to, long distance telephone service, faxes and copying.
ARTICLE IX
PAYMENT AND FINANCIAL REPORTS
In consideration of the license and use of the Premises and the mutual
covenants, terms and provisions contained in this Lease Agreement, Paramount
shall be entitled to an amount equal to 40% of Lessee's gross sales at the Park.
Lessee is solely responsible for the shortages of it's cashiers. Gross sales
shall include all monies and other things of value received by or paid to
Lessee.
In determining gross receipts from the Exhibit's sales, there shall not be
included therein the amount of any sales tax, dishonored checks, credit card
charge backs or refunds made in the ordinary course of business. Paramount shall
remit any sales tax collected on sales of the Exhibit to the proper taxing
authority.
All sales made by Lessee at the Park shall be rung on a cash register
specified by Paramount and provided by Lessee. Lessee shall deliver all receipts
to the Park's Accounting Department at the close of each business day. On a
weekly basis and in accordance with the Park's general accounting schedule,
Paramount shall remit to Lessee, Lessee's share of the gross receipts made by
Lessee less any amount owed to Paramount hereunder. Any shortage of gross
receipts shall be the responsibility of Lessee.
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Paramount and its accountants shall have full access at reasonable times
to examine the books, cash registers, accounts, vouchers, working papers and
other records of Lessee pertaining to the operation of the Exhibit for the
purpose of checking and/or verifying the gross receipts of the Exhibit and any
other information pertinent to this Lease Agreement.
ARTICLE X
OPERATION OF EXHIBIT
Lessee shall operate its Exhibit using its best efforts, skill and
diligence in the conduct of its business, and Lessee shall maintain sufficient
materials, supplies and merchandise in stock, an adequate sales force, and
regulate its employees and servants so that they will be courteous and helpful
to the public. Paramount shall have the right to participate in the operation of
the Exhibit to the extent it deems necessary to ensure the quality of the
operation.
Lessee shall provide and employ the operating personnel to operate the
Exhibit, and Paramount and Lessee shall mutually determine the number of
personnel necessary to adequately operate the Exhibit. Lessee and Paramount
shall mutually determine the special skills required, if any, for such
personnel. Lessee agrees to train and supervise such personnel. Such personnel
shall be employed by Lessee. Paramount will attempt to inform Lessee of all
pertinent laws and regulations (labor and general), both Federal and State,
applicable to the Exhibit, provided that Paramount shall assume no obligation or
responsibility for Lessee's compliance with such laws or regulations regardless
of whether Paramount has or has not so informed Lessee. Lessee agrees to abide
by all such laws and regulations.
Lessee shall keep the Exhibit fully open for business during every day of
the week, including Sundays and legal holidays, in accordance with the hourly
and daily schedule of the Park to be issued by Paramount; Lessee shall operate
the Exhibit during the hours and on the days set forth in said schedule as
issued from time to time. Lessee shall notify a Paramount Merchandise Manager
via the Park's radio system if an exhibit is closed for any reason of late in
opening.
Lessee shall keep upon the Premises at all reasonable times at least one
qualified representative, authorized to represent and act for Lessee in matters
pertaining to the operation of, or other questions arising in connection with,
the Exhibit and Premises and shall keep Paramount informed in writing of the
identity of such persons. This representative shall have a voice-mail phone or
pager on them during business hours for the purpose of being contacted by
Paramount. It is the responsibility of Lessee to notify Paramount of number
changes. In the event Paramount so requests, Lessee shall promptly replace its
qualified representative with another individual reasonably suitable to
Paramount.
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Lessee and Paramount shall mutually agree upon costumes for all line
personnel. If the costumes are provided by Paramount, Lessee shall reimburse
Paramount for any loss of or damage to the costumes during the operating
seasons, ordinary wear and tear excepted. Lessee agrees to have its management
personnel and qualified representatives dress in the manner appropriate to the
Park's image.
Lessee agrees to have all personnel abide by Paramount's employment
policies, a copy of which will be provided to Lessee.
Lessee agrees not to employ nor seek to employ, directly or indirectly,
any employee of Paramount within 90 days of that employee's termination, without
the prior written consent of Paramount. If Lessee breaches this provision,
Lessee agrees to pay Paramount liquidated damages in the amount of twice the
annual salary of the employee (while employed by Paramount). Any former
Paramount employee hired by Lessee to operate the Exhibit must have a
satisfactory rehire status from Paramount.
The parties acknowledge that the equipment provided under this Lease
Agreement shall, at all times, be in the care, custody and control of Lessee.
Consistent with same, Lessee, at all times shall assume full responsibility and
liability for said equipment.
ARTICLE XI
ADVERTISING, PUBLICITY, SIGNS
Lessee shall not have the right to use, and shall not use, in any way or
for any purpose, the names or any similar name nor any characters, designs,
symbols, representations, figures, drawings, ideas, or other matter or materials
developed, held or owned by Paramount, except that during the term of this Lease
Agreement Lessee may use photographs or other representations of the Exhibit or
of the Park in connection with advertising or publicity; provided, however, that
Paramount shall have the right to approve any such photographs or
representations as set forth below. Prior to the exercise of any right set forth
in this Article, Lessee shall submit to Paramount all advertising copy, all data
in connection with its advertising programs, all art work and all other
advertising or promotional material together with a statement as to the use of
which the same will be put and the media through which, and the period of time
during which, it will be exhibited, distributed, and displayed. Lessee shall not
use any of the same without first obtaining in writing in each and every case
the specific approval of Paramount. Lessee shall affix any and all copyright
notices required by law in connection with the exercise of any rights set forth
in this Article.
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ARTICLE XII
INSURANCE
Lessee shall, throughout the term of this Lease Agreement, maintain at its
own cost an insurance policy or policies indemnifying and holding harmless
Paramount, its officers, agents and employees from, for and against any loss or
liability whatsoever incurred as a result of any event occurring upon the
Premises or occurring by reason of Lessee's operations from or occupancy of the
Premises, whether such event, in the latter case, occurs on or off the Premises.
Paramount shall be named an additional insured in said policy or policies.
Said policies shall be written by responsible insurance companies
satisfactory to Paramount, and shall have minimum comprehensive general
liability limit for Product/Completed operations and for bodily injury of
$1,000,000 each occurrence and $1,000,000 each aggregate; property damage limit
of $100,000 each occurrence and $100,000 each aggregate; a minimum comprehensive
automobile liability limit of $250,000 each person and $250,000 each occurrence;
and minimum property damage limit of $100,000 each occurrence. Policies will
provide written notice to Paramount of cancellation or of any material change in
said policy 30 days in advance of the effective date thereof.
Lessee shall also insure any improvements and equipment it adds to the
Premises, and its contents, in accordance with standard fire and extended
coverage insurance policies then in effect for similar businesses, the proceeds
of which shall be payable to Paramount and Lessee in proportion to their
respective interests.
Lessee shall provide statutory Workman's Compensation Insurance, Social
Security, Unemployment Insurance, and such other benefits as may be required by
law to its employees. Lessee shall submit evidence thereof to Paramount and
display such certificates on the Premises as may be required by law.
ARTICLE XIII
TAXES AND ASSESSMENTS
Paramount shall pay all real estate taxes, assessments, or levies against
the real property upon which the Premises is situated and shall be responsible
for the conformance of such improvements to all applicable laws and regulations.
Lessee shall pay all other taxes, licenses and permit fees in connection with
the Premises and operation of the Exhibit.
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ARTICLE XIV
RULES AND REGULATIONS
Lessee shall comply with and shall cause its agents, employees, invitees,
guests and licensees to comply with such Rules and Regulations as may be from
time to time published by the Park and/or Paramount.
Lessee shall at all times during the term of this Lease Agreement keep a
copy of such Rules and Regulations posted in a conspicuous place on the
Premises. Lessee shall at all times during the term of this Lease Agreement, and
shall cause its agents, employees, invitees, guests and licensees, to comply
with and abide by the Park's safety procedures and all aforementioned persons
will be under jurisdiction of the Park's Safety Manager.
ARTICLE XV
VEHICLE TRAFFIC, PARKING
Paramount shall regulate all traffic within the Park including the
operation and parking of vehicles of Lessee, its invitees, licensees and
patrons. Paramount shall specify from time to time in its Rules and Regulations
the regulations pertaining to the foregoing. Paramount shall provide Lessee
ingress and egress to Lessee's designated receiving door for the purpose of
receiving and shipping merchandise in such manner and at such times as Paramount
may reasonably determine. All vehicles entering the Park shall be subject to
inspection by the Park's Security Department. All vehicles delivering
merchandise on Park's property will be issued a gate pass and shall be required
to stop at the receiving department for vehicle inspection prior to leaving the
Park. The gate pass must be stamped by the receiving department and returned to
the security gate for exit clearance.
ARTICLE XVI
ASSIGNMENT, SUBLEASE, TRANSFER, LIEN
Lessee shall not sublicense any part of the Premises, or assign, transfer
or encumber in any manner this Lease Agreement or any right, privilege, license
or interest conferred hereby.
Paramount may assign or otherwise transfer this Lease Agreement or any
portion hereof from time to time, and such transfer shall bind and inure to the
benefit of its successors and assigns. It is agreed that Paramount is
contracting the technical skills and expertise of the management and employees
of Lessee and any significant change in ownership
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or management of Lessee shall require the consent of Paramount as if such change
constituted an assignment of this Lease Agreement.
Neither this Lease Agreement, nor any right, privilege, license or
interest conferred hereby shall be transferable by operation of law, by reason
of any bankruptcy, bankruptcy act, insolvency, receivership proceedings,
attachment, execution, other judicial process or sale by or against Lessee,
whether any of the same be voluntary or involuntary or judicial proceedings.
Lessee shall not permit any lien to be imposed upon the Premises or upon
any structures or improvements thereon. In the event a lien is imposed, Lessee
shall cause it to be discharged promptly. Lessee shall indemnify Paramount for
any loss, expense or cost incurred by it in connection with any such lien.
Paramount retains the right to create, or permit mortgages, trust deeds,
or other encumbrances to be imposed against and upon the Premises, any
improvements thereon or interests therein, except against property owned by
Lessee, which encumbrances, including principal, interest and costs and expenses
in connection therewith, shall be prior to and superior to the interest of
Lessee hereunder, and Lessee hereby agrees that this Lease Agreement is subject
and subordinate to any such mortgage, trust deed or other encumbrance.
ARTICLE XVII
INDEMNITY OF PARAMOUNT
Lessee, for itself and on behalf of its officers, directors, employees and
agents shall forever hold harmless Paramount (as used in this Article XVII,
Paramount shall include its parent corporation and affiliated companies and
their respective officers, directors, employees, affiliates, and agents) and
shall indemnify and defend Paramount against and from any and all liabilities,
claims, penalties, forfeitures, suits, damages, losses, actions, judgments and
all costs and expenses incident thereto, including, without limitation,
reasonable fees and disbursements of attorneys or consultants, arising, directly
or indirectly, out of, in connection with or upon the Premises, or the use or
occupancy thereof or in the operation of the Exhibit, except any of the
foregoing caused by the willful misconduct or gross negligence of Paramount.
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ARTICLE XVIII
COMPLIANCE WITH LAWS
Lessee shall conduct itself, its business on the Premises and maintain the
Premises and Exhibit in compliance with all applicable federal, state and local
statutes, laws, ordinances, regulations, rules and any other legal requirements,
including, without limitation, the provisions of all federal, state and local
health, safety, transportation, and environmental laws and regulations, and
shall obtain all necessary permits, licenses and other consents necessary in
connection with the operation of the Exhibit. Lessee shall at all times be
responsible for the protection of persons and property and for maintaining
appropriate precautions and programs in connection with the operation of the
Exhibit.
ARTICLE XIX
DAMAGE AND DESTRUCTION OF PREMISES
In the event the Premises are destroyed, or the Park closed because of any
governmental action, whether legislative, judicial or executive, war, civil
disturbance, Act of God, fire, strike or other labor difficulty, except if
caused by Lessee, its officers, agents, employees, invitees, licensees or
patrons, and except if the same arose upon, or in connection with use of, the
Premises, the obligations of both parties to this Lease Agreement shall be
suspended during the period while the Premises are unusable and resume
thereafter. No compensation or claim whatsoever will be paid or payable by
Paramount by reasons of any loss or liability arising out of the foregoing. If
the Premises are destroyed or damaged by Lessee, its agents, employees,
invitees, licensees or patrons, Lessee shall be responsible for the costs
incurred by Paramount in repairing and restoring the Premises.
ARTICLE XX
DAMAGE WAIVER
Lessee hereby expressly waives all claims of whatever nature for any or
all loss or damage sustained by reason of any defect, deficiency, failure or
impairment of any services to or in the Premises, including but not limited to
the water supply system, heating system, wires leading to or inside the
Premises, gas or electric or telephone which may occur from time to time from
any cause. Lessee hereby expressly releases and discharges Paramount, its
officers, agents, and employees from all demands, claims, judgments and causes
of action arising from any matter mentioned above in this Article.
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ARTICLE XXI
SURRENDER OF PREMISES
Upon completion of term of this Lease Agreement, or upon early termination
thereof for any reason whatsoever, Lessee shall peaceably and quietly surrender
and deliver possession of the Premises to Paramount in good condition, ordinary
wear and tear permitted. If Paramount is due any monies, Paramount has the right
to withhold the equipment until said monies are paid in full. Otherwise,
Paramount will release and return (at Lessee's expense) all equipment remaining
on-site owned by Lessee.
ARTICLE XXII
NOTICES
All notices required or permitted to be given hereunder shall be in
writing, shall be effective upon receipt, and shall be delivered in person or
sent by Federal Express or similar courier or by United States mail, with
postage thereon prepaid, certified, addressed to Paramount's Great America, 2401
Agnew Road, Santa Clara, California, 95054, Attention: Gayle Ando, Executive
Vice President and General Manager; with a copy to Paramount Parks Inc., 8720
Red Oak Blvd., Suite 315, Charlotte, NC 28217, Attention: General Counsel and to
Lessee at 22764 7th Street, Mandeville, LA, 70471; Attention: Chad Gay.
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ARTICLE XXIII
ENTIRE AGREEMENT
This Lease Agreement constitutes the entire agreement between the parties
and supersedes all agreements previously executed between the parties. This
Lease Agreement may not be modified except by written instrument executed by the
parties hereto.
ARTICLE XXIV
WAIVER
Waiver, whether by omission, commission or otherwise, at any time or from
time to time, of a partial or total breach of any of the terms, conditions or
covenants of this Lease Agreement shall not be deemed a waiver of any subsequent
breach of the same or any other term, condition or covenant Receipt by Paramount
of payment from Lessee with or without knowledge of a breach of any term,
condition or covenant hereof, shall not be deemed a waiver of such breach, nor
shall failure to exercise any right hereunder by Paramount be deemed a waiver of
such breach.
ARTICLE XXV
RELATIONSHIP OF PARTIES
The relationship between the parties hereto is that of Lessor and Lessee
and of independent contracting parties, and is not, and shall not be deemed to
be, any other relationship, including without limiting the generality thereof,
that of joint venturers, partners or principal and agent.
ARTICLE XXVI
APPLICABLE LAW
This Lease Agreement is to be construed in accordance with the applicable
laws and rules of the state of California.
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ARTICLE XXVII
SEPARABILITY
In the event any term, provision, clause, article, condition or other
portion of this Lease Agreement be held unenforceable, invalid or void, the same
shall not affect any other term, provision, clause, article, condition or other
portion of this Lease Agreement, but the remainder of this Lease Agreement shall
be effective as if such term, provision, clause, article, condition or other
portion had not been contained herein.
ARTICLE XXVIII
TERMINATION
Either party may, in addition to all other legal and equitable remedies
available to it, terminate this Lease Agreement in the event the other Party
shall fail to perform any of the covenants, terms, or conditions hereof to be
performed by such other Party and such nonperformance shall continue for a
period of thirty (30) days after notice thereof in the event such performance
cannot be reasonably completed or performed within such thirty (30) day period,
the aggrieved Party may terminate this Lease Agreement only if the Party in
default shall not in good faith have commenced such performance within such
thirty (30) day period, or if commenced, shall not have diligently proceeded
therewith to completion.
The term of this Lease Agreement is conditioned upon, among other things,
the satisfactory revenue generation by Lessee. Accordingly, Paramount and Lessee
agree that the annual per capita qualifier will be a minimum of .06 for Logger's
run Photo, .06 for Invertigo, .09 for Top Gun and .02 for Green Slime Coaster.
If the per cap generated for the Park does not equal or exceed this minimum,
Paramount may, at its election, forthwith terminate this Lease Agreement in its
entirety or with respect to only the Parks failing to meet the minimum by giving
to Lessee written notice of such termination.
Upon notice of termination, this Lease Agreement and the rights granted to
Lessee shall terminate immediately as if the giving of such notice were the date
fixed for the expiration of the Lease Agreement.
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ARTICLE XXIX
RELOCATION OF EXHIBIT
It is recognized that the proper site selection is beneficial to and in
the best interests of both parties; provided, however, Paramount shall have the
right to relocate the operation of any Exhibit during the term of this Lease
Agreement in the event such relocation be in the best interests of the Park. In
the event a relocation is necessary, Paramount shall provide Lessee 30 days
prior written notice and shall provide a new site of substantially similar
quality. The expenses of any such relocation shall be paid by Paramount.
ARTICLE XXX
AGREEMENT NOT TO COMPETE
Lessee hereby expressly agrees that during the term of this Lease
Agreement or any extension thereof, Lessee shall not, directly or indirectly,
sell or assist in the sale of same or similar product(s) as sold in the Park
within a 50-mile radius of the Park during the operating season of the Park,
except as otherwise agreed to in writing by Paramount.
ARTICLE XXXI
CONFIDENTIALITY
In the event either party receives any confidential information, such
party agrees to hold such information in confidence until such time as it is
made available to the public with the consent of such other party. In no event
shall either party release to any third party any terms or conditions of this
Lease Agreement without the written consent of the other party. This paragraph
shall survive termination of this Lease Agreement.
ARTICLE XXXII
ENVIRONMENTAL PROVISIONS
Lessee shall keep the Premises and Exhibit free from accumulation of any
hazardous, solid, special or toxic wastes or substances, chemicals, cleaning
substances and/or other materials (collectively "Materials") and, upon
termination of this Lease Agreement, shall remove all Materials used, handled or
generated by its operations/activities from the Premises.
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Lessee shall assume legal title and liability for the handling,
transporting, storing, treating, disposing, and other future management
(collectively "Management") of any Materials used, handled or generated by
Lessee in connection with this Lease Agreement. Lessee shall at its sole cost
undertake proper Management of the Materials.
Lessee shall, at its sole cost: (i) obtain and comply with all permits,
licenses, registrations, authorizations and approvals -- including without
limitation air permits, wastewater (NPDES) permits, EPA generator identification
number -- required for the operation of the Exhibit (collectively "Permits"),
(ii) properly complete any manifests, waste profiles, and similar documents
required for the Management of Materials (collectively "Manifests"), (iii) shall
provide copies, with all required signatures, of any and all Permits and
Manifests to Paramount, and (iv) coordinate all Management of Materials with
Paramount's Loss Prevention Office.
Lessee shall provide to Paramount emergency telephone number(s) and
contact person(s), on a 24-hour basis.
Lessee shall assign personnel to perform the Management of Materials who
are fit, qualified and competent to properly perform their assigned tasks, and
Lessee shall properly supervise such personnel. Lessee shall promptly remove and
replace any person not so fit, competent and qualified upon Paramount's request.
Notwithstanding anything herein to the contrary, Lessee shall use
transportation, treatment, storage and/or disposal companies and/or facilities
that have valid and effective Permits required under all applicable federal,
state and local laws, regulations, rules, ordinances or orders necessary to
allow such facilities to transport, accept, store, treat, process, or dispose of
the Materials. Neither Lessee nor any transportation, treatment, storage, or
disposal company and/or facility used by Lessee shall be in violation of any
terms or conditions of such Permits.
Lessee shall, at its sole cost: (a) keep and maintain secondary
containment for all Materials stored on the Premises, (b) erect a seismic
bracing for any Materials located on shelves throughout the Premises, (c) ensure
that all employees who work with any Materials receive the appropriate OSHA
training, and (d) provide documentation to Paramount of all OSHA training.
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ARTICLE XXXIII
YEAR 2000 COMPLIANCE
Lessee warrants that the Exhibit has been designed or modified and fully
tested in such a manner that the Exhibit will not generate any invalid and/or
incorrect date-related results or cause any of the problems commonly referred to
as "Year 2000 problems" and will, without interruption or manual intervention,
continue to operate consistently, predictably and accurately and in accordance
with all of the requirements of this Agreement, including without limitation,
meeting all specifications and/or functionality and performance requirements,
when used during any year prior to, during or after the calendar year 2000.
ARTICLE XXXIV
EQUAL OPPORTUNITY
The parties hereto agree that they will not engage in any discriminatory
practices based on race, color, sex, age, religion, national origin, sexual
orientation or physical or mental disability and that they will comply with all
applicable provisions of Executive Order 11246, The Vietnam Era Veterans
Readjustment Act of 1974 and The Rehabilitation Act of 1973, and of the rules,
regulations and relevant orders issued pursuant thereto including, without
limitation, the applicable provisions of 4l CFR 60-1.4, 60-250 and 60-741.4,
which are incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the
day and year first above written.
RX TECHNOLOGY
By: /s/ Donald Rex Gay
------------------
Name: D. Rex Gay
Title: Owner
PARAMOUNT PARKS INC.
By:___________________
Name: Gayle Y. Ando
Title: Executive V.P. & General Manager
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EXHIBIT A
ATTACHMENT TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGY (LESSEE)
DESCRIPTION OF EXHIBIT
Lessee shall operate four (4) photosystems to be located at the following rides
in the Park:
Logger's Run
Top Gun
Green Slime Coaster
Invertigo
Lessee shall operate photosystems comprising:
1 Suitable high quality video cameras.
2. Video printers: type and number to be decided upon.
3. Color display monitors; type and number to be decided upon.
4. Electronic point of sales units; to be decided upon.
5. A suitable trigger source to detect the cars.
6. Suitable flash/lighting units.
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ADDENDUM A
ADDENDUM TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGY (LESSEE)
o Paramount shall be permitted, but not required, to pay invoices which are
the responsibility of Lessee and to deduct same from amounts due Lessee
when, to do so, in Paramount's sole judgment, is necessary to protect the
good name and reputation of Paramount.
o As required in Article XII, Lessee shall insure all improvements and
equipment it adds to the premises, and its contents (including inventory,
office equipment, etc.) in accordance with standard fire and extended
coverage insurance policies, the proceeds of which will be payable to
Paramount and Lessee in proportion of their interests.
o Lessee acknowledges that all employees used to operate the Exhibit are
Lessee's employees as stipulated in Article X. Lessee warrants that
required taxes, withholding, etc. will be paid on these employees.
o The failure of either Party to insist upon a strict performance of this
Lease Agreement, or any of the terms and conditions thereof, shall not be
deemed a waiver of any rights or remedies that such Party may have and
shall not be deemed a waiver of any subsequent breach or default in any of
such terms and conditions.
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ADDENDUM B
ADDENDUM TO LEASE AGREEMENT BETWEEN
PARAMOUNT PARKS INC. (LESSOR) AND
RX TECHNOLOGY (LESSEE)
CREDIT CARD SALES - Lessee may make sales utilizing Paramount's Credit Card
accounts (presently VISA, MASTER CARD, and DISCOVER), however, it is understood
that all credit charges are for Lessee's account only. In other words, Paramount
will receive as rent the percentage specified herein and all credit charges
(including charge backs, dealer discount*, etc.) will be deducted from Lessee's
share of revenue.
Cash register shortages (not errors), if any, are for Lessee's account
only and do not affect the rent paid to Paramount.
* Credit card companies charge a percentage of their individual charge
ticket value for the privilege of using their card. That fee is referred
to above as "discount". In cases where Lessee utilizes all or more than
one of the cards a blended rate may be used.
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EXHIBIT 10.5
Six Flags Over Mid America
Front Gate
(Renewal Pending)
<PAGE>
SIX FLAGS ST. LOUIS
- --------------------------------------------------------------------------------
RX TECHNOLOGIES, INC. AGREEMENT
THIS RX Technology, Inc. AGREEMENT is made as of this 14th day of
February, 2000 by and between SIX FLAGS ST. LOUIS, f/k/a/ SIX FLAGS OVER
MID-AMERICA, a division of Six Flags Theme Parks Inc., a Delaware Corporation,
having offices at P0 Box 60, Eureka, MO 63025, and RX Technologies, Inc., d/b/a
RX Technologies, Inc., a Nevada Corporation, having offices at P0 Box 9112,
Mandeville, LA 70470-9112 ("Licensee").
WITNESETH
WHEREAS, Six Flags owns and operates the theme amusement facility, which
is open to the general public and known as Six Flags St. Louis in Eureka, MO
(the "Park").
WHEREAS, RX Technologies, Inc. desires to operate a front gate and
walk-about digital photography concession known as RX Technologies, Inc. (the
"Concession") as set forth herein;
WHEREAS, Six Flags desires to grant RX Technologies, Inc. a license to
operate the Concession in the Park, subject to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, Six Flags and RX Technologies, Inc. agree as
follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX Technologies, Inc. a license to operate the Concession in
the Park in such locations of the Park as is set forth on Exhibit A hereto
during the 3-year period (the "Term") commencing March 1, 2000 (the
"Commencement Date") and terminating at the end of the Park's 2002 operating
season (the "Termination Date").
2. OPERATION.
A. Hours of Operation.
RX Technologies, Inc. agrees to operate the Concession during
the hours and days, including Sundays and holidays, that the Park is open for
business in accordance with schedules prepared by Six Flags which Six Flags may
modify in Six Flags' sole discretion at any time on twenty-four (24) hours
notice to RX Technologies, Inc. and such additional hours as are required by Six
Flags. RX Technologies, Inc. acknowledges that Six Flags will suffer great harm
if RX Technologies, Inc. breaches the agreement set forth in this subsection,
the amount of which would be difficult to determine. Therefore, RX Technologies,
Inc. agrees to pay Six Flags liquidated damages of $50.00 for each Park
operating day that RX Technologies, Inc. opens the Concession thirty (30)
minutes after the opening time of the Park operating hours and/or closes the
Concession thirty (30) minutes before the closing time of the Park operating
hours upon notice thereof by Six Flags and such liquidated damages amount shall
be increased an additional $50.00 for each
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successive violation of Park operating hours upon notice thereof by Six Flags,
up to a maximum liquidated damages amount of $500.00.
B. Approval of Goods.
(i) RX Technologies, Inc. agrees to submit samples of all
products detailed plans, specifications, drawings and other information with
respect to goods for sale at the Concession (the "Goods") to be made available
to customers in the Park for Six Flags' approval in advance of sale of the same.
RX Technologies, Inc. agrees to make such changes to the Goods, at its sole cost
and expense, as Six Flags shall reasonably determine. RX Technologies, Inc. also
agrees to coordinate with the Park in coding each of RX Technologies, Inc.'s
Goods and inputting the same in the cash register for tracking purposes. To the
extent requested by Six Flags, RX Technologies, Inc. shall comply with Six Flags
point of sale and other information systems requirements.
C. Price of Goods.
(i) RX Technologies, Inc. agrees to submit to Six Flags for
its review and approval, a retail price list of all RX Technologies, Inc.'s
Goods for sale to customers of the Park at least two (2) weeks prior to
Commencement Date or any proposed change in any previously approved price list.
RX Technologies, Inc. agrees to make changes to the Approved Price list as Six
Flags shall reasonably request. RX Technologies, Inc. shall be responsible for
all costs and expenses associated with production and printing of the Price List
and any changes thereto, and such costs shall not be deducted from Net Revenue
(as hereinafter defined).
(ii) RX Technologies, Inc. agrees to make changes to the
Approved Price at any time during the Term if the parties mutually determine,
that an adjustment is appropriate. RX Technologies, Inc. shall be responsible
for all costs and expenses associated with production and printing of the
Revised Price List, and such costs shall not be deducted from Net Revenue (as
hereinafter defined).
(iii) RX Technologies, Inc. agrees that it shall not make its
Goods available to any party free of charge or at a discounted price unless RX
Technologies, Inc. is engaging in sampling activities approved by Six Flags,
etc. Notwithstanding the foregoing, RX Technologies, Inc. agrees to offer such
discounts on its Goods as Six Flags shall require and as Six Flags shall offer
in locations owned by Six Flags. RX Technologies, Inc. shall, at all times,
charge customers, including without limitation, family members, employees and
business associates, the price set forth on the Approved Price List for its
Goods except as otherwise expressly set forth herein.
D. Methods of Sale: Payment and Return Policies.
(i) The Goods shall be available for sale to customers of the
Park as follows: at point of purchase. A method of sale shall be discontinued at
the discretion of Six Flags.
(ii) The following forms of payment for RX Technologies,
Inc.'s Goods will be accepted: MasterCard, Visa, American Express and Discover
credit cards (collectively, the Credit Cards), checks, and cash. Six Flags may,
in its sole discretion, discontinue and, if applicable, require RX Technologies,
Inc. to discontinue any form of payment for Goods sold hereunder. Conversely,
Six Flags may, in its sole discretion, require RX Technologies, Inc. to accept
such
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additional forms of payment as may be accepted by Six Flags in the future; and
in so doing, RX Technologies, Inc. agrees to submit to such reasonable
rules/restrictions with respect thereto. Payment for the Goods shall be in
accordance with the provisions of Exhibit B - Payment/Return Agreement, which is
attached hereto and incorporated herein.
E. Reports and Records.
(i) Upon commencement of RX Technologies, Inc.'s daily
operations, RX Technologies, Inc. shall pick up a cash till from the Park cash
control facility, and within one (1) hour after the close of each Park day, RX
Technologies, Inc. shall deliver to Park's cash control facility the following:
(a) remaining cash till, (b) a daily report of the day operations on Six Flags
Daily Sales Report form, and (c) the day daily gross receipts, including without
limitation credit card sales drafts, credit memos and all other materials
evidencing sales transactions during such day (collectively, the Deposits). Such
Deposits are received subject to audit by Six Flags as set forth herein and Six
Flags may correct and credit or debit RX Technologies, Inc. for any inaccuracies
or errors in RX Technologies, Inc.'s computation of Deposits. Six Flags may
refuse to accept or revoke acceptance of any Deposits, including any sales
drafts or credit adjustments, which are illegible or which fail to comply with
the terms of this Agreement, including, but not limited to, any federal or state
law.
(ii) RX Technologies, Inc. shall retain copies of sales drafts
and other materials evidencing sales transactions related to sale of Goods
during the Term of the Agreement from date of transaction. This Section shall
survive the termination of the Agreement.
F. Compliance with Laws.
RX Technologies, Inc. agrees that at all times during the Term
it shall be in compliance with all laws, rules and regulations with respect to
operation of the Concession in the Park, including, without limitation, all
environmental and employment laws, rules and regulations. RX Technologies, Inc.
agrees that it shall be responsible for obtaining, at its sole cost and expense,
all licensing and/or permits required in connection with operation of the
Concession in the Park.
G. Employees.
(i) RX Technologies, Inc. acknowledges that it has no
authority to employ persons on behalf of Six Flags, and no employees or agents
of RX Technologies, Inc. shall be deemed to be agents or employees of Six Flags.
(ii) Without Six Flags' prior written consent, RX
Technologies, Inc. shall not, until after the second anniversary of the end of
the Term, solicit for the purpose of hiring or employ, directly or indirectly,
any employee employed by, or independent contractor engaging in business with,
Six Flags, in each case, during the Term. This subsection of the Agreement shall
survive until the second anniversary of the end of the Term.
(iii) RX Technologies, Inc. represents and warrants that it
shall, at its sole cost and expense, recruit, train and supervise and furnish
the service of at least one (1) trained person to operate the concession and
sell Goods in connection with, the Concession as set forth in Exhibit C attached
hereto and incorporated herein (RX Technologies, Inc. Employees) during
Operating Hours. RX Technologies, Inc. acknowledges that Six Flags will suffer
great harm if RX Technologies, Inc. breaches the agreement set forth in this
subclause, the amount of which would be difficult to determine. Therefore, RX
Technologies, Inc. agrees to pay Six Flags liquidated
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damages of $250.00 for each Park operating day that RX Technologies, Inc. fails
to furnish the services of at least one (1) trained person to operate the
Concession and/or fails to operate the Concession during the Operating Hours.
(iv) RX Technologies, Inc. shall be fully responsible for all
RX Technologies, Inc.'s Employees, including without limitation, responsibility
for all salaries and other compensation, withholding taxes, workers compensation
insurance, union dues, if applicable, and other required payments in connection
with such employees and shall be in compliance with all laws, rules and
regulations with respect thereto.
(v) Each prospective employee of RX Technologies, Inc. shall
complete an employment application, the form of which must be approved by Six
Flags, prior to beginning work in the Park.
(vi) RX Technologies, Inc. agrees to use best efforts to cause
its employees to attend Park training/orientation programs as may be required by
Six Flags and comply with Park rules and regulations, including without
limitation submission to drug testing, as may be required. RX Technologies, Inc.
further agrees to cause its employees to wear such uniforms as shall be approved
in advance by Six Flags if Six Flags provides said uniforms. RX Technologies,
Inc. agrees that all such uniforms shall be returned in good condition, normal
wear and tear excepted, to Six Flags at the end of Term. RX Technologies, Inc.
agrees to pay Six Flags for any damage to, or loss of, such uniforms. Six Flags
reserves the right to set off the amounts thereof from RX Technologies, Inc.'s
share of Net Revenues.
(vii) RX Technologies, Inc. agrees to verify, at its sole cost
and expense, the references of RX Technologies, Inc.'s Employees, including
without limitation, prior positions of employment, reasons for leaving prior
positions, age, education, criminal records, immigration status, and right to
work in the United States and use due diligence to determine if any of RX
Technologies, Inc.'s Employees have provided false information or omitted
significant information with respect to their backgrounds and/or prior
employment.
(viii) RX Technologies, Inc. represents and warrants that it
shall not, to RX Technologies, Inc.'s knowledge, employ any person to work in
the Park who has a criminal history without Six Flags' knowledge and approval
with respect to said employment. RX Technologies, Inc.'s knowledge, for the
purpose described in the immediately preceding sentence, is the knowledge that
RX Technologies, Inc. would have known had RX Technologies, Inc. performed a
reference check of the type performed by Six Flags. RX Technologies, Inc.
acknowledges that great harm can be suffered by Six Flags if a RX Technologies,
Inc. employee is discovered to have a criminal record that could have been
discovered with a criminal history background check of the type performed by Six
Flags with respect to all prospective employees of Six Flags. The parties agree
that it will be difficult to determine the damages suffered by Six Flags in the
event of RX Technologies, Inc.'s failure to undertake such background checks.
Accordingly, the parties agree that in the event RX Technologies, Inc. employs
an individual for work in the Park for whom RX Technologies, Inc. has not, prior
to hiring such person, undertaken a criminal history background check of the
type performed by Six Flags, then RX Technologies, Inc. shall pay Six Flags
liquidated damages of $1,000.00 with respect to each such employee of RX
Technologies, Inc. regardless of whether the background check would have
revealed any evidence of criminal history.
(ix) At the request of Six Flags, RX Technologies, Inc. shall
make available to Six Flags all information obtained with respect to its
employees, including, without limitation, criminal history background checks.
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(x) RX Technologies, Inc. agrees to terminate employment at
the Park for any RX Technologies, Inc.'s Employee working in the Park who: (a)
is subsequently discovered to have a criminal history and, after being advised
of the same, Six Flags does not approve said employment, (b) fails to comply
with Park rules or (c) made material misstatements or omissions on his or her
employment application. RX Technologies, Inc. agrees to indemnify Six Flags from
and against any claims by RX Technologies, Inc.'s Employees arising from or
related to such dismissals.
(xi) Six Flags agrees that RX Technologies, Inc. may offer RX
Technologies, Inc.'s Employees discounts on Park admission and food/merchandise
at the Park that Six Flags offers its employees in accordance with Park policy
3. FACILITY.
A. Rights/Responsibilities.
(i) In connection with RX Technologies, Inc.'s operation and
management of the Concession, Six Flags agrees that RX Technologies, Inc. shall
be entitled use of and/or access to: (a) the facility at which the Concession is
operated (the Facility), (b) adjacent portions of the Facility, as may be
necessary for the operation and maintenance of the Concession, and (c) common
ways and areas within the Park for incinerator or trash purposes, loading and
unloading supplies and installation, repair and maintenance of Equipment and/or
other elements related to the Concession.
(ii) Six Flags will be responsible for heating, ventilation,
air conditioning, plumbing, electrical, expenses related to the operation of the
Concession in the Facility. Six Flags also agrees to provide the following: (i)
passes to enter the Park for RX Technologies, Inc.'s Employees in the
performance of their duties, and (ii) Licensee's Employee access to the Park
employee parking areas on a first-come, first-serve basis to be used in the
performance of their duties
(iii) RX Technologies, Inc. will be responsible for cleaning
the Facility and area and removing trash from said areas, the regular
maintenance of the Facility related to the operation of the Concession in the
Facility.
B. Construction.
(i) RX Technologies, Inc. will be installing a digital
photography operation at the location listed on Exhibit A. Included in the
construction will be all appropriate equipment for their operation. All payment
to outside contractors will be made in accordance with Six Flags St. Louis
policies. Prior to the construction of the Facility in the Park at which the
Concession is operated, RX Technologies, Inc. will submit its plans to the Park
for approval. These plans will include exterior and interior finishes as well as
RX Technologies, Inc.'s proposed signage. RX Technologies, Inc. will design the
exterior and interior of the Facility and the signage so that they will be
consistent with the theme of the area of the Park in which the Facility is
located and Six Flags' design requirements policy (the Design Policy) (a copy of
the Design Policy in effect as of the date hereof is attached hereto and
incorporated herein), as Six Flags may amend from time to time upon notice to RX
Technologies, Inc.
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(ii) RX Technologies, Inc. agrees to obtain all permits,
consents, approvals and clearances with respect to any construction contemplated
hereunder and comply with all laws, rules and regulations with respect thereto,
including Six Flags' Maintenance Department rules, and shall secure Six Flags'
prior approval with respect to the following: (a) contractors, subcontractors,
designers, architects and materialmen who will perform work or Goods or supply
materials in connection with the construction of the Facility, (b) dates of
commencement and completion with respect to each phase of the construction of
the Facility and (c) agreements with all contractors, subcontractors, designers
architects and materialmen. RX Technologies, Inc. shall only enter into
construction agreements hereunder which permit assignment to Six Flags and its
licensors. All construction hereunder shall be made in a good and workmanlike
manner.
(iii) Six Flags shall have the right, but not the obligation,
to test and inspect the construction of the Facility. RX Technologies, Inc.
agrees, at its sole cost and expense, to remedy any problems with the Facility,
upon Six Flags' request, including without limiting the foregoing, problems
associated with defective design, engineering, workmanship, failure of factory
construction, materials or any component parts.
(iv) RX Technologies, Inc. shall not place, maintain, or
permit to be placed or maintained on any exterior portion of the Facility or on
the interior side of or immediately adjacent to any glass door, wall or window
of said Facility, or otherwise display outside said Facility in the confines of
the Park, any signs, advertisements, lettering, trade, brand or service name,
mark or logo, neon lights, flood lights, colored lights, flashing lights or
other exterior lighting without prior written consent of Six Flags, which
consent may be granted or withheld in the absolute discretion of Six Flags. RX
Technologies, Inc. shall not use in, on or about said Facility, or elsewhere in
the Park, any sound producing or reproduction equipment audible inside or
outside said Facility, without the prior written consent of Six Flags.
C. Building or Grounds Alteration
Any alterations, cosmetic or structural, to any building,
attachment, surrounding structure or grounds will be at the expense of the
Licensee and must be approved in advance by the Director of Maintenance or his
designate. Style and design must be consistent with the area of the Park that
the Licensee's operation(s) are located. All contractors and trade labor will be
selected by the Director of Maintenance and the Purchasing Manager. All such
contractors must, among other requirements, supply Six Flags' Director of
Maintenance with the scope of work and target completion date, supply a valid
Certificate of Insurance for the contractor or trade labor, status of labor
(Union or Non-Union), accept Six Flags' Safety Policy and supply Six Flags with
appropriate Lien Waivers at each payment date and upon substantial completion of
the project. The terms of all contracts shall be determined by Six Flags and
under no circumstances shall the Licensee engage in a similar function. Failure
of Licensee to comply with any portion of this section may result in termination
of the Agreement at the sole discretion of Six Flags.
(i) RX Technologies, Inc. agrees to make alterations,
modifications, additions, improvements or updates, at its sole cost and expense
(including any necessary design and engineering expenses), to the Facility
and/or the Equipment, as shall be mutually agreed to by the parties and in
accordance with the Design Policy.
(ii) RX Technologies, Inc. covenants that it will not make, or
suffer or permit to be made, any Alterations in, on, or to the Facility and/or
the Equipment without first: (a) notifying Six Flags in writing sufficiently in
advance of the commencement thereof to enable Six Flags to post or record or
both, appropriate and effective notices of non-responsibility, (b) obtaining
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the written consent of Six Flags thereto, which consent Six Flags shall not
unreasonably withhold provided that the proposed Alterations are of high quality
and in harmony with the overall design and appearance of the Park, and necessary
to operate the Concession in a safe and efficient manner, (c) obtaining the
written approval of Six Flags as to all contractors, subcontractors, and
materialmen who will perform work or services or supply materials in connection
therewith and (d) obtaining the written consent of Six Flags with respect to the
proposed commencement and completion date of such Alterations.
D. Maintenance and Repair.
RX Technologies, Inc. agrees to properly maintain and keep in
good repair and condition the Facility and/or the Equipment, at its sole cost
and expense. The Facility and/or the Equipment shall be maintained in keeping
with the themeing and overall aesthetics of the Park. In the event any portion
of the Facility and/or the Equipment is inoperative or a component thereof has
failed or is defective, RX Technologies, Inc. shall repair the same no later
than seventy-two hours of RX Technologies, Inc.'s knowledge of the same or, in
the case of Equipment, RX Technologies, Inc. shall secure comparable equipment
(the Replacement Equipment) and deliver the same to the Park until such time as
the Equipment is repaired. Failure of RX Technologies, Inc. to comply with the
provisions of this subsection shall constitute default hereunder.
E. Relocation.
RX Technologies, Inc. agrees that Six Flags shall have the
right to relocate RX Technologies, Inc. to another Facility in the Park, for any
reason, provided that Six Flags agrees to exercise reasonable care to minimize
interference in or to RX Technologies, Inc.'s operations.
F. Ownership.
It is understood and agreed that the Facility and the
improvements thereto, whether made by RX Technologies, Inc. or Six Flags
hereunder, shall remain the property of Six Flags or RX Technologies, Inc.
respectively, except the trademarks and other indicia of Six Flags, including an
Alternate Name (hereinafter defined) (Six Flags' Trademarks) and the trademarks
of Six Flags' licensors, including Warner Bros. and DC Comics (Licensor's
Trademarks) shall be the property of Six Flags and its licensors and in the
event of expiration or termination hereunder Six Flags' Trademarks and its
Licensor's Trademarks shall be removed therefrom and returned to Six Flags at RX
Technologies, Inc.'s sole cost and expense.
G. Interference with Park/Park Operations.
RX Technologies, Inc. understands that this Agreement may not
be asserted to affect or impede Six Flags' normal Park operations, including
without limitation, upgrading Park equipment, building and/or facilities,
entering into agreements with other parties or locating or changing other
facilities, equipment, walkways or signage into or surrounding the Facility,
each without the consent of Six Flags. RX Technologies, Inc. shall have no
exclusive rights with respect to the operation of concessions in the Park
similar in nature or type to the Concession.
4. EQUIPMENT.
A. Description.
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(i) RX Technologies, Inc. agrees to provide, at its sole cost
and expense, all equipment, supplies, furnishings, displays, and other signage,
cash registers, and any other materials necessary to operate the Concession (the
Equipment). Notwithstanding the foregoing, RX Technologies, Inc. agrees that it
shall use only Six Flags' provided credit card processing equipment
(collectively, Six Flags' Equipment), as appropriate, for all transactions and,
in consideration therefore, RX Technologies, Inc. shall pay Six Flags no later
than thirty (30) days of receipt of an invoice therefor.
B. Delivery, Installation and Removal.
(i) RX Technologies, Inc. agrees that it shall be responsible
for the shipment, installation and, promptly following the end of the Term, the
removal, of the Equipment, including parts therefor and/or Replacement Equipment
(as hereinafter defined), at its sole cost and expense. RX Technologies, Inc.
agrees to coordinate with Six Flags with respect to the dates and times of
shipment and installation of the Equipment, Replacement Equipment and/or parts
therefor.
(ii) Six Flags shall have the right, but not the obligation,
to test and inspect the Equipment and the installation and operation of the
Equipment during the Term. RX Technologies, Inc. agrees, at its sole cost and
expense, to remedy any problems with the Equipment and installation thereof,
upon Six Flags' request, including without limiting the foregoing, problems
associated with defective design, engineering, workmanship, failure of factory
construction, materials or any component parts.
C. Additional Equipment.
RX Technologies, Inc. agrees to install and/or supply
additional Equipment, as determined by mutual agreement of the parties, at no
additional cost to Six Flags.
5. PAYMENT TO RX TECHNOLOGIES. INC.
A. RX Technologies, Inc. shall collect, record and submit the
Deposits of the Concession to Six Flags and Six Flags shall pay RX Technologies,
Inc. the following share of Net Revenues (as hereinafter defined) during each
operating season of the Term as follows:
Year RX Technologies, Inc. % of Net Revenue
---- --------------------------------------
2000 65%
2001 65%
2002 65%
RX Technologies, Inc. agrees to guarantee a minimum $0.12 (12 cent) per cap or
equivalent revenue each year.
B. Net Revenue means gross revenue of the Concession during the
applicable period less the sales tax paid or payable in respect thereto or
otherwise paid. RX Technologies, Inc. agrees that Six Flags shall have the right
to deduct the following from RX Technologies, Inc.'s share of the Net Revenue:
(i) cash shortages, (ii) credit card, check processing and other transaction
costs and charges, including charge backs and return check amounts and fees
related thereto, (iii) the cost of goods taken from Six Flags' warehouse, to the
extent permitted by Six Flags, or otherwise and not paid for, (iv) the cost of
leased Park equipment, if any, each during the applicable period, (v) the cost
associated with the damage or loss of uniforms as set forth in more detail in
Section 2
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G hereof, and (vii) the cost of any bill, charge or other amount owed to Six
Flags hereunder (including, without limitation, liquidated damages).
C. RX Technologies, Inc.'s share of the Net Revenue will be
calculated at the end of the week. For payment purposes, a week shall be defined
as the seven-(7) day period beginning Monday and ending on and including Sunday.
Payments shall be directed as set forth in this Agreement or as RX Technologies,
Inc. may otherwise direct in writing and shall be payable seven (7) days from
Six Flags' calculation thereof. Six Flags shall have no further monetary
liability or obligation to RX Technologies, Inc. Payments shall be made to RX
Technologies, Inc. at the address indicated in the first paragraph of this
Agreement or otherwise as requested in writing by RX Technologies, Inc.
D. Notwithstanding Six Flags' deduction of sales tax from Net
Revenue, RX Technologies, Inc. represents and warrants that all payments by Six
Flags to RX Technologies, Inc. of RX Technologies, Inc.'s share of Net Revenue
hereunder are exempt from any United States federal, state and local taxes or
other assessments, including any withholding taxes. RX Technologies, Inc. shall
be solely responsible for, and shall pay when due, assessments arising from or
in connection with the receipt by RX Technologies, Inc. of such Net Revenue.
6. AUDIT RIGHTS.
Until all claims and rights of Six Flags shall have been fully
ascertained, fixed and paid RX Technologies, Inc. shall maintain, in accordance
with generally accepted accounting principles, separate and accurate records of
the gross receipts of the Concession at the Park showing in detail all business
transacted by RX Technologies, Inc. Six Flags shall have the right, at all
reasonable times, to examine and inspect such records as well as any other
business records of RX Technologies, Inc. pertaining to the operation of the
Concession. This Section shall survive the termination of this Agreement.
7. CHANGE IN FINANCIAL CONDITION.
RX Technologies, Inc. agrees to notify Six Flags promptly of any
significant material change in its financial condition.
8. TRADEMARKS.
A. RX Technologies, Inc. hereby grants Six Flags the non-exclusive
royalty-free right and license to use RX Technologies, Inc.'s Trademarks, trade
names, service marks, logos and symbols, (RX Technologies, Inc.'s Trademarks)
for the Term of the Agreement in connection with the Concession in the Park. RX
Technologies, Inc.'s Trademarks are and shall remain RX Technologies, Inc.'s
sole and exclusive property. Six Flags agrees to include a Trademark symbol ()
on the first and most prominent reference to RX Technologies, Inc.'s Trademarks
and a protective trademark legend in materials as shall be required by RX
Technologies, Inc. hereunder.
B. Six Flags reserves the right to create an alternate name and/or
logo (collectively, the Alternate Name) for the Concession. Six Flags shall own
all right, title and interest in and to such Alternate Name, and all goodwill
with respect thereto shall inure to the benefit of Six Flags. RX Technologies,
Inc. agrees that any Alternate Name shall be the exclusive property of Six
Flags.
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C. Six Flags' Trademarks are and shall remain the sole and exclusive
property of Six Flags, and its Licensor's Trademarks are and shall remain the
sole and exclusive property of Six Flags' Licensors, and RX Technologies, Inc.
shall not use nor permit others to use Six Flags' Trademarks, including the
Alternate Name, and its Licensor's Trademarks for any purpose without the prior
written consent of Six Flags nor do anything which could in any way conflict
with Six Flags or its Licensors' use or ownership of such Trademarks.
9. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS.
A. RX Technologies, Inc. represents and warrants that:
(i) RX Technologies, Inc. is, and will during the term of this
Agreement be, solvent and able to meet its obligations hereunder as and when
they become due;
(ii) RX Technologies, Inc. shall not use, or suffer or permit
any person or persons to use, the Equipment and/or Facility for any purpose
other than as set forth herein without the prior written consent of Six Flags,
or in any unlawful manner or for any unlawful purpose;
(iii) RX Technologies, Inc. shall comply with, and use its
best efforts to cause its agents and employees to comply with all rules and
regulations of the Park as may be in effect from time to time. RX Technologies,
Inc. confirms that it has been provided with a copy of the rules and regulations
of the Park;
(iv) RX Technologies, Inc. will not offer or provide any Goods
in or from the Concession or elsewhere in the Park, without the prior express
written authorization of Six Flags. Any uncertainty with respect to the Goods
which RX Technologies, Inc. is authorized to offer or provide shall be resolved
in the manner which most limits and restricts RX Technologies, Inc.'s authority,
and any reasonable interpretation of such authority by Six Flags shall be
binding upon RX Technologies, Inc.;
(v) RX Technologies, Inc. shall maintain, at its sole cost and
expense during the Term of this Agreement, a valid business license and any
other necessary permits or licenses and shall provide proof of same to Six
Flags;
(vi) The Concession, including the Facility and the Equipment
with respect thereto, will be fit and safe for its intended commercial use,
shall be free from defects, shall comply with all applicable laws, ordinances
and regulations, including building, electrical and/or other codes, and will
meet the operation objectives set forth herein;
(vii) RX Technologies, Inc. shall promptly pay all bills and
charges relating to the Concession in the Park, including any Alterations to the
Equipment and/or the Facility, and shall protect and indemnify Six Flags and the
Park against all such bills and charges and liens relating thereto. In the event
that RX Technologies, Inc. desires to contest any bill or charge which is the
basis or which may be the basis for a lien against the Facility constituting the
Concession or the Park or both, RX Technologies, Inc. shall, within five (5)
days of notice therefor, obtain a bond of, or deposit collateral with, a
responsible corporate surety or depository to protect against any such lien in
the amount of any such bill estimated costs and expenses, including without
limitation, attorney's fees and interest. If RX Technologies, Inc. fails to post
such bond or collateral within the aforementioned time period, Six Flags may,
without prejudice to any other right or remedy of Six Flags herein have the
option to: (a) pay any such claim, bill or charge on RX Technologies, Inc.'s
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behalf, and RX Technologies, Inc. shall reimburse Six Flags on demand for the
amount of any such payment or (b) have the right to set off the amount of said
claim, bill or charge from the portion of RX Technologies, Inc.'s Net Revenue
due hereunder. Should any claim or lien be filed or recorded affecting the
Facility or the Park or both, or should any action affecting the title thereto
be commenced, RX Technologies, Inc. shall give Six Flags written notice thereof
promptly after the same becomes known to RX Technologies, Inc., and RX
Technologies, Inc. shall thereafter remedy the same with respect to the Facility
or the Park or both;
(viii) RX Technologies, Inc.'s Trademarks, and/or any
advertising, promotion or publicity materials supplied Six Flags by RX
Technologies, Inc. hereunder will not violate, infringe upon or give rise to any
adverse claim with respect to any common law or other right whatsoever,
including, without limitation, any copyright, trademark, service mark, right of
privacy or publicity or contract right of any party or violate any other law;
and
(ix) Except as otherwise expressly permitted herein, RX
Technologies, Inc. shall not have the right to use or permit the use of any of
Six Flags' Trademarks, including any depiction of the Park or Licensor's
Trademarks or other intellectual property without Six Flags' prior written
consent identifying the use consented to, which consent may be granted or
withheld in the absolute discretion of Six Flags. This Section shall survive the
termination of the Agreement.
10. SUBCONTRACRORS.
Six Flags acknowledges that RX Technologies, Inc. has the right to
utilize subcontractors (collectively, the Subcontractors) to fulfill the
obligations set forth hereunder, subject to Six Flags' prior approval with
respect thereto and the work to be performed thereby. RX Technologies, Inc.
agrees that (i) the terms of the agreement between RX Technologies, Inc. and any
Subcontractor will comply with all the terms of this Agreement, including,
without limitation, the provisions concerning criminal background checks of
persons working at the Park for or on behalf of RX Technologies, Inc. and the
provisions concerning insurance, (ii) there will be no disruption (including
strike) in the operation of the Concession whatsoever (even in the event of
replacement of the Subcontractors), and (iii) RX Technologies, Inc. shall not
cause or permit any liens, claims or encumbrances to be placed on or with
respect to the Equipment, Facility, Park or any other property of Six Flags or
RX Technologies, Inc. which is the subject of this Agreement.
11. ASSIGNMENT.
The obligations of RX Technologies, Inc. herein are personal in
nature and this Agreement and the obligations of RX Technologies, Inc. hereunder
shall not be assigned or otherwise transferred by RX Technologies, Inc., in
whole or in part, to any third party without the prior written consent of Six
Flags. Six Flags may assign this Agreement to any licensor of Six Flags. For
purposes of this Agreement, the term assigned or assignment shall include,
without limitation, a consolidation or merger of RX Technologies, Inc. with or
into another party, a reorganization or a sale or other transfer of all or
substantially all of the assets of RX Technologies, Inc. to another party,
and/or transfer of a controlling interest in RX Technologies, Inc.'s business in
or to another party.
12. INDEMNITY.
RX Technologies, Inc. covenants that it will protect, defend, hold
harmless and indemnify Six Flags, its directors, officers, employees, agents,
subsidiaries, licensors, partners and
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parent companies from and against any and all expenses, claims, actions,
liabilities, attorney's fees and costs, damages and losses of any kind or nature
whatsoever (including, without limitation of the foregoing, death of or injury
to persons and damage to property), actually or allegedly resulting from or
connected with the operation of the Facility and/or the Concession (including,
without limitation of the foregoing, Goods sold, work done, Goods rendered or
products utilized therein, advertising and promotion therefor, lack of repair in
or about the area occupied or arising out of any actual or alleged infringement
of any patent or claim of patent, copyright, trademark, service mark, or trade
name) or from the omission or commission of any act, lawful or unlawful, or
breach of this Agreement by RX Technologies, Inc. or its agents or employees,
whether or not such act is within the scope of the employment of such agents or
employees and not due to the negligence or willful misconduct of Six Flags or
its employees and agents. This Section shall survive the termination of the
Agreement.
13. INSURANCE.
A. To insure RX Technologies, Inc.'s performance of the obligations
and warranties as set forth herein, but not by way of limitation, RX
Technologies, Inc. agrees, at its expense, to procure and maintain Comprehensive
General Liability against claims for bodily injury, personal injury or death and
property damage, Contractual Liability, Products Liability, Automobile Liability
against claims for bodily injury, personal injury or death and property damage,
Risk Builder Risk Insurance, including coverage against collapse, written on a
completed value basis and Workers Compensation Insurance, including an employer
liability endorsement (collectively, the Insurance) each covering claims
occurring upon, in or about the Park, and on, in or about the adjoining streets,
sidewalks and passageways and identifying this Agreement, the Park and Six Flags
Theme Parks Inc. as being named as additional insured on the Insurance policies
described herein, including any renewals of such Insurance. The Insurance shall
apply separately to each insured against whom a claim is made or suit is
brought. The Insurance shall remain in full force and effect for the Term of
this Agreement and one (1) year thereafter, and all such Insurance shall include
a waiver of subrogation against Six Flags. This Section shall survive the
termination of the Agreement.
B. The Insurance shall be written by a company rated A or better by
Best Insurance Reports or by such other company consented to in writing by Six
Flags. The policy of Insurance will provide, inter alia, for thirty-(30) days
advance notice to Six Flags and RX Technologies, Inc. of any proposed policy
modification or cancellation. Upon any cancellation and/or modification of any
Insurance policy required hereby, and prior to the effective date thereof, RX
Technologies, Inc. shall deliver replacement insurance to Six Flags. RX
Technologies, Inc. shall forward the Certificate of Insurance form attached
hereto and incorporated herein as Exhibit D to its insurer for execution and
transmit such executed Certificate to Six Flags promptly after execution of this
Agreement, and RX Technologies, Inc. shall also supply Six Flags with its
official Certificate of Insurance promptly after execution of this Agreement for
its records.
C. Each of the Insurance liability coverage's referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out of
a single occurrence and $3,000,000 for all claims in the aggregate.
D. All Insurance policies required to be maintained shall be
occurrence based (rather than claims made), primary and shall not require
contribution from any coverage maintained by Six Flags, and shall not contain,
without Six Flags' prior written consent, any special or noncustomary
exclusions.
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E. RX Technologies, Inc. shall furnish Six Flags with a certificate
from RX Technologies, Inc.'s insurance carrier certifying that RX Technologies,
Inc. has obtained Worker's Compensation insurance upon its employees, or an
opinion of counsel satisfactory to Six Flags that such coverage is not required.
F. RX Technologies, Inc. understands that Six Flags' rights and RX
Technologies, Inc.'s obligations hereunder shall not be limited or affected by
the provisions of this Section 14.
14. BREACH.
In the event of breach of any provision of this Agreement by RX
Technologies, Inc. or in the event RX Technologies, Inc. should become
insolvent, file a voluntary petition in bankruptcy, have a receiver, liquidator
or trustee in bankruptcy appointed over its affairs, have a significant material
adverse change in its financial condition, Six Flags may, at its option, then or
at any time thereafter while said breach continues, upon fifteen (15) days prior
written notice to RX Technologies, Inc., terminate this Agreement and the
license and privileges granted hereby and be relieved of all further obligation
hereunder arising after the date of termination. In the event of termination
hereunder, RX Technologies, Inc. shall then quit and surrender the premises as
set forth in this Agreement and the license and privileges granted hereby shall
then terminate; provided, however, that RX Technologies, Inc. shall remain
liable for all obligations under this Agreement, and Six Flags may, in addition
to any remedy herein provided, recover from RX Technologies, Inc. any damages to
which it may be entitled in law or equity. This Section shall survive the
termination of this Agreement.
15. NOTICES.
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To Six Flags: Six Flags St. Louis
I-44 & Allenton Road
Eureka, MO 63025
Att: Joe Costa
Phone: 636-938-5300 Ext 406
Fax: 636-587-3611
Retail Fax: 636-587-9823
Copy to: Six Flags Corporate Offices
924 Avenue J East
Grand Prairie, TX 75050
Attn: John Bement
Phone: 405-475-2500
Fax: 405-475-2555
To Licensee: RX Technologies, Inc.
2264 7th Street
Mandeville, LA 70471
Attn: Rex Gay
President/Owner
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Phone: 504-727-9412
Fax: 504-727-9815
or to such other addresses as the parties may direct by written notice given as
herein above provided. Notice shall be deemed given when received as evidenced
by the return receipt or the date such notice is first refused, if that were the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
16. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, RX
Technologies, Inc. may, subject to any indebtedness of RX Technologies, Inc. to
Six Flags, promptly remove RX Technologies, Inc.'s Equipment from the Park,
except that Six Flags' Trademarks or Six Flags' Licensor's Trademarks shall be
removed from the Equipment and remain at the Park, and RX Technologies, Inc.
shall quit and surrender the Facility in the Park in good condition, reasonable
wear and tear excepted. Unless the parties otherwise agree, if RX Technologies,
Inc. fails to remove the Equipment from the Park within five (5) days after
termination of this Agreement, then RX Technologies, Inc. shall be deemed to
have abandoned such property and title to the same shall at that time vest in
Six Flags. Any costs and expenses incurred by Six Flags in removing such
abandoned property (including the reasonable value of the Goods rendered by Park
employees in connection therewith) shall be paid to Six Flags by RX
Technologies, Inc. promptly following demand therefor. This Section shall
survive the termination of this Agreement.
17. GOVERNING LAW.
A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State of
Missouri (the Specified State) and that the laws of the Specified State shall
govern the construction, interpretation and enforceability of this Agreement.
Should any dispute arise in connection with the construction, interpretation,
performance or enforcement of the provisions of this Agreement, each of the
parties hereto agrees that any such action shall be brought only in the courts
located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the relationship of the parties hereto, (ii) agree that any
such action, suit or proceeding shall be brought in any state or federal court
of competent jurisdiction sitting in the federal court district in the Specified
State, (iii) submits to the jurisdiction of such courts and (iv) to the fullest
extent permitted by law, agree that it will not bring any action, suit or
proceeding in any forum other than as provided herein (but nothing herein shall
affect the right of the Six Flags to bring any action, suit or proceeding in any
other forum to the extent necessary to enforce its rights under this Agreement).
18. RELATIONSHIP OF THE PARTIES.
RX Technologies, Inc. is an independent contractor. Nothing
contained in or done pursuant to this Agreement shall be construed as creating a
partnership, agency, joint employer, joint venture or landlord-tenant
relationship. Except as otherwise expressly provided in this Agreement, no party
shall become bound, with respect to third parties, by any representation, act or
omission of the other.
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19. FORCE MAJEURE.
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God. In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
20. PUBLICITY.
A. Six Flags shall, at its discretion, develop, direct and produce
any and all advertising and promotion in connection with the Concession in the
Park for the purposes of advertising, promoting, publicizing and merchandising
the Concession in the Park. RX Technologies, Inc. agrees to cooperate, as
necessary, when requested to provide any advertising or promotion with respect
to the Concession.
B. Six Flags shall have the right to use RX Technologies, Inc.'s
Trademarks and the names of any person or entity rendering Goods on or
associated with the Concession, as well as any such person or entity's
biography, photographic or non-photographic likeness and recorded voice.
C. RX Technologies, Inc. shall not have the right to have or cause
to have sponsors with respect to the Concession without the prior written
approval of Six Flags.
D. RX Technologies, Inc. agrees that Six Flags may obtain sponsors
for the Concession which may include affixing signage in or around the
Concession, and any proceeds Six Flags derives in connection therewith shall be
solely that of Six Flags.
21. PROPRIETARY INFORMATION.
RX Technologies, Inc. agrees that this Agreement and all information
regarding the business operations, policies and practices of Six Flags
(Proprietary Information) acquired or learned in connection with the activities
conducted under this Agreement shall be deemed confidential and shall be kept in
strict confidence under appropriate safeguards. The term Proprietary
Information, as used herein, does not include any information that is or becomes
generally available to the public other than as a result of disclosure in
violation of this Agreement. This Section shall survive the termination of the
Agreement.
22. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
23. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules hereto)
constitutes the entire agreement between the parties with respect to the
matters, which are the subject hereof, and supersedes all prior and
contemporaneous agreements and undertakings of the parties pertaining
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to the subject matter hereof. This Agreement may not be modified except by
written instrument duly executed by the parties hereto
--------------------
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IN WITNESS WHEREOF, this RX Technologies, Inc. Agreement has been duly
executed by the parties hereto on the day and year first herein above written.
SIX FLAGS ST. LOUIS,
(a division of Six Flags Theme Parks Inc.)
By:
--------------------------------------
Thomas J. Iven
Vice President & General Manager
RX TECHNOLOGIES, INC.
By: /s/ Donald Rex Gray
--------------------------------------
Rex Gray
President/Owner
S-1
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Exhibit A
Location
The locations are set forth below, subject to relocation in the reasonable
discretion of Six Flags.
The existing Photo Services counter adjoining LaClede's Mart on the North and
Bandstand Balloons on the East. This is part of building #110.
RX Technologies, Inc. will also have limited vending rights in the walkways to
be defined geographically per our agreed map. All vending must be done in
accordance with Six Flags general rules and regulations. This will include
Hurricane Harbor and corporate outings or group sales and catered outing events.
Ex. B - 1
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) RX Technologies, Inc. shall comply with Six Flags' credit
card procedures (the Credit Card Procedures) (a list of the Credit Card
Procedures in effect as of the date hereof is attached hereto and is
incorporated herein), as Six Flags may amend them from time to time upon notice
to RX Technologies, Inc., with respect to acceptance of Credit Cards as payment
for any Goods.
(ii) RX Technologies, Inc. agrees that it shall not: (A)
discriminate in favor of any Credit Card accepted for payment over another, (B)
require a minimum transaction amount or impose a surcharge as a condition for
honoring Credit Cards, (C) impose a requirement on Credit Card holders to
provide any personal information as a condition for honoring Credit Cards unless
otherwise required by the Credit Card Procedures, (D) make or require a
photocopy of a Credit Card, (E) make a Credit Card sale where only part of the
consideration due is paid by use of such Credit Card, or (F) accept a Credit
Card for any purpose which is prohibited by the Credit Card Procedures.
(iii) RX Technologies, Inc. shall not make a Credit Card sale
to any person if: (A) the Credit Card being presented has expired according to
the expiration date shown on such Credit Card, (B) the sale has been declined
for authorization, (C) RX Technologies, Inc. has reasonable grounds to believe
the Credit Card being presented is counterfeit, fraudulent or stolen, or (D) the
signature on the Credit Card does not appear to be the same as the signature on
the sales draft or the spelling of the signature on the sales draft is different
from the spelling of the name on the Credit Card. RX Technologies, Inc. shall
use reasonable efforts to retrieve any credit card from the customer when
instructed by a service provider in response to an authorization or other
inquiry.
(iv) RX Technologies, Inc. agrees to display symbols of the
Credit Cards, supplied by Six Flags hereunder, at its Facility in the Park to
effectively inform customers of the Park that RX Technologies, Inc. honors the
Credit Cards.
(b) Returns and Adjustments.
(i) All disputes between RX Technologies, Inc. and any Credit
Card holder respecting any Credit Card transaction hereunder shall be settled
between RX Technologies, Inc. and such Credit Card holder. RX Technologies, Inc.
agrees that in the event of a Credit Card dispute, RX Technologies, Inc. shall
reasonably address the Credit Card holder concern in a good faith manner.
Ex. B - 2
<PAGE>
(ii) RX Technologies, Inc. shall maintain a fair and
consistent policy for exchange and return of Goods and for the adjustment of
amounts due on Credit Card transactions and such policy shall be the same as
available to cash customers. RX Technologies, Inc. shall make no cash refunds or
payments to Credit Card holders for returns or adjustments on Credit Card sales.
(iii) When a refund or payment is due to a Credit Card holder
for return or adjustment, RX Technologies, Inc. shall prepare, execute and
deliver to Six Flags or cause to be delivered to Six Flags a legible credit
adjustment memo on a form provided or approved by Six Flags and deliver to the
Credit Card holder a copy of the completed form. Each credit adjustment memo
shall be imprinted with or contain the following: (A) Six Flags' name and
merchant account number, (B) city and address where the credit or adjustment
occurred, (C) Credit Card holder name and Credit Card number, (D) Credit Card
expiration date, (F) the date of the return or adjustment and the date of the
initial transaction, if available, (F) the amount of the credit, and (vii) a
brief description of the Goods returned.
(iv) With respect to each credit adjustment memo presented to
Six Flags and/or transmitted hereunder, RX Technologies, Inc. represents and
warrants that: (A) the credit adjustment memo represents an amount lawfully due
to a Credit Card holder for the return or adjustment of Goods previously
purchased with the Credit Card, (B) a sales draft relating to and including the
amount of the credit memo was previously presented to Six Flags and/or
transmitted hereunder, (C) the credit adjustment memo does not duplicate
information concerning the same transaction in any other credit slip unless Six
Flags requests a resubmission, (D) the signature appearing on the credit
adjustment memo is that of an authorized employee of RX Technologies, Inc., and
(B) RX Technologies, Inc. has complied fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technologies, Inc. fails to comply with the
Credit Card Procedures or the terms of this Exhibit B for a given Credit Card
transaction and said sales draft is returned to Six Flags, or in the event Goods
are returned by the customer that paid by Credit Card, or in the event Goods are
not received by customer or any defense or problem is made or presented by
customer questioning the validity or authorization of the transaction, RX
Technologies, Inc. agrees that Six Flags may, in its sole discretion: (i) deduct
the amount of said Credit Card transaction from RX Technologies, Inc.'s share of
the revenue from the Concession due and owing RX Technologies, Inc., if any, or
(ii) bill RX Technologies, Inc. in the amount of said Credit Card transaction,
and RX Technologies, Inc. shall pay Six Flags the same within five (5) days of
receipt therefor, or (iii) demand payment from RX Technologies, Inc. in the
amount of said Credit Card transaction and RX Technologies, Inc. shall pay Six
Flags immediately upon its receipt of Six Flags' demand. Failure of RX
Technologies, Inc. to pay Six Flags as set forth herein for any outstanding
Credit Card transactions shall constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event Six Flags' agreement with respect to the Credit
Cards terminates or Six Flags, in its sole discretion, determines that it does
not want RX Technologies, Inc. to accept Credit Cards as payment for Goods
hereunder, RX Technologies, Inc. agrees to discontinue
Ex. B - 3
<PAGE>
acceptance of Credit Cards and remove the Credit Card symbols from the Facility
upon notification by Six Flags.
2. CHECK.
(a) Acceptance.
RX Technologies, Inc. represents and warrants that it shall
comply with Six Flags' current check authorization procedures (the ACheck
Authorization Procedures) (a copy of the TeleCheck Authorization Procedures in
effect as of the date hereof has been received by RX Technologies, Inc. and is
incorporated herein), as Six Flags may amend from time to time upon notice to RX
Technologies, Inc., prior to acceptance of a check as payment for Goods.
Notwithstanding the foregoing, RX Technologies, Inc. agrees that it shall not
contact TeleCheck directly, as set forth in Section 3 of the Check Authorization
Procedures but shall contact the Merchandise Office or a Merchandise Supervisor
to obtain authorization from TeleCheck.
(b) Returns and Adjustments.
(i) All disputes between RX Technologies, Inc. and any
customer respecting any check transaction hereunder shall be settled between RX
Technologies, Inc. and such customer. RX Technologies, Inc. agrees that in the
event of a dispute, RX Technologies, Inc. shall reasonably address the
customer's concern in a good faith manner.
(ii) RX Technologies, Inc. shall maintain a fair and
consistent policy for exchange and return of merchandise and for the adjustment
of amounts due on check transactions and such policy shall be the same as
available to cash and credit customers.
(iii) When a refund or payment is due to a customer for return
or adjustment, RX Technologies, Inc. shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible Refund Slip.
(iv) With respect to each legible Refund Slip presented to Six
Flags hereunder, RX Technologies, Inc. represents and warrants that: (A) the
Refund Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased with a check, (B) a sales draft
relating to and including the amount of the Refund Slip was previously presented
to Six Flags and/or transmitted hereunder, (C) the Refund Slip does not
duplicate information concerning the same transaction in any other Refund Slip
unless Six Flags requests a resubmission, (D) the signature appearing on the
Refund Slip is that of RX Technologies, Inc., and (E) RX Technologies, Inc. has
complied fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technologies, Inc. fails to comply with the
Check Authorization Procedures for a given check and said check is returned to
Six Flags, or in the event Goods are returned by the customer that paid by
check, or in the event Goods are not received by customer or any defense or
problem is made or presented by customer questioning the validity or
authorization of the transaction, RX Technologies, Inc. agrees that Six Flags
may, in its sole
Ex. B - 4
<PAGE>
discretion: (A) deduct the amount of said check from RX Technologies, Inc.'s
share of the revenue from the Concession due and owing RX Technologies, Inc., if
any, or (B) bill RX Technologies, Inc. in the amount of said check, and RX
Technologies, Inc. shall pay Six Flags the same within five (5) days of receipt
therefor, or (C) demand payment from RX Technologies, Inc. in the amount of said
check and RX Technologies, Inc. shall pay Six Flags immediately upon its receipt
of Six Flags' demand. Failure of RX Technologies, Inc. to pay Six Flags as set
forth herein for any outstanding checks shall constitute a breach of the
Agreement.
(d) Termination of Acceptance.
In the event Six Flags' agreement with TeleCheck terminates
and Six Flags does not wish to continue acceptance of checks in the Park or Six
Flags, in its sole discretion, determines that it does not want RX Technologies,
Inc. to accept checks as payment for Goods hereunder, RX Technologies, Inc.
agrees to discontinue acceptance of checks upon notification by Six Flags.
3. CASH.
(a) Acceptance.
RX Technologies, Inc. represents and warrants that it shall
cause all cash received by or on RX Technologies, Inc.'s behalf for sale of
Goods hereunder to be rung in the cash register or other Six Flags approved cash
collection equipment and deposited in such cash register or other equipment at
the time of sale. RX Technologies, Inc. agrees that it shall not accept cash for
a mail or telephone order transaction.
(b) Returns and Adjustments.
(i) All disputes between RX Technologies, Inc. and any
customer respecting any cash transaction hereunder shall be settled between RX
Technologies, Inc. and such customer. RX Technologies, Inc. agrees that in the
event of a dispute, RX Technologies, Inc. shall reasonably address the
customer's concern in a good faith manner.
(ii) RX Technologies, Inc. shall maintain a fair and
consistent policy for exchange and return of merchandise and for the adjustment
of amounts due on cash transactions and such policy shall be the same as
available to credit customers.
(iii) When a refund or payment is due to a customer for return
or adjustment, RX Technologies, Inc. shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible Refund Slip.
(iv) With respect to each legible Refund Slip presented to Six
Flags hereunder, RX Technologies, Inc. represents and warrants that (A) the
Refund Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased in cash, (B) a sales draft relating to
and including the amount of the Refund Slip was previously presented to Six
Flags and/or transmitted hereunder, (C) the Refund Slip does not duplicate
information concerning the same transaction in any other Refund Slip unless Six
Flags requests a
Ex. B - 5
<PAGE>
resubmission, (D) the signature appearing on the Refund Slip is that of RX
Technologies, Inc., and (B) RX Technologies, Inc. has complied fully with the
terms of this Agreement.
(v) RX Technologies, Inc. agrees that in the event Goods
hereunder are returned on a day that said Goods were not purchased, Six Flags
may, in its sole discretion: (A) deduct the amount of said return from RX
Technologies, Inc.'s share of the revenue from the Concession due and owing RX
Technologies, Inc., if any; (B) bill RX Technologies, Inc. in the amount of said
return and RX Technologies, Inc. shall pay Six Flags the same within five (5)
days of receipt therefor or (C) demand payment from RX Technologies, Inc. in
said amount and RX Technologies, Inc. shall pay Six Flags immediately upon
receipt of Six Flags' demand. Failure of RX Technologies, Inc. to pay Six Flags
as set forth herein for any amount outstanding shall constitute a breach of the
Agreement.
Ex. B - 6
<PAGE>
Credit Card Procedures
RX Technologies, Inc. represents and warrants that it shall follow the
following Credit Card Procedures, as may be amended from time to time by Six
Flags upon notice to RX Technologies, Inc.:
1. Each Credit Card sale shall be evidenced by legible sales draft
(the ADraft) on a form approved by Six Flags, indicating the full amount due for
Goods sold hereunder.
2. RX Technologies, Inc. shall imprint each Draft, or show evidence
of the electronic equivalent obtained through use of a terminal, which reads the
magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) Six Flags'
name and merchant account number, (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including the
account number, name and expiration date of the Credit Card, (iv) the date the
transaction takes place and the price of the Goods, (v) total amount of the
transaction, including all applicable taxes, (vi) description of Goods, and
(vii) signature of the Credit Card holder.
4. RX Technologies, Inc. shall compare the signature on the Draft
with the signature on the Credit Card to ascertain that they are the same, and
if the Credit Card has a photograph of the Credit Card holder, verify that the
Credit Card holder and the person presenting the Credit Card appear to be the
same person. If RX Technologies, Inc. believes there is a discrepancy in the
signature or if the photographic identification is uncertain, RX Technologies,
Inc. shall contact the service provides for instructions.
5. If the signature panel on the Credit Card is blank, RX
Technologies, Inc. shall do the following: (i) review positive identification to
determine that the user is the Credit Card holder; such identification must
consist of a current official government identification document (such as a
passport or drivers license) that bears the Credit Card holder's signature, (ii)
indicate such positive identification (including any serial number and
expiration date) on the Draft and (iii) require the Credit Card holder to sign
the signature panel of the Credit Card prior to completing the transaction.
6. On mail and telephone order sales, if any, RX Technologies, Inc.
shall print on the Draft the information required in Paragraph 3 of these Credit
Card Procedures and, in addition, the following: (i) the customer's name and
account number, (ii) whether the order was placed by mail (MO) or telephone
(T.O.), and (iii) whether or not authorization is obtained. With respect to mail
and telephone order sales, RX Technologies, Inc. does not need to secure the
Credit Cardholder's signature or Credit Card imprints. RX Technologies, Inc.
understands that telephone and mail order transactions are permitted at RX
Technologies, Inc.'s sole risk; namely, that any defense or problem raised by a
customer questioning the validity or authorization of the transaction may be
made.
Ex. B - 7
<PAGE>
7. For each Credit Card sale, RX Technologies, Inc. shall deliver or
cause to be delivered a copy of the completed sales draft to the customer,
evidencing the full amount due for the Goods.
8. RX Technologies, Inc. shall not complete a sales transaction
without first obtaining an authorization from the designated service provider
for the total amount of the transaction. RX Technologies, Inc. shall print
legibly on the Draft the authorization/approval code, evidencing any
authorization so obtained.
Ex. B - 8
<PAGE>
Exhibit C
Employees
RX Technologies, Inc. Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Supervisor
3 Cashier/Photographers
Ex. C - 0
<PAGE>
Exhibit D
SIX FLAGS ST. LOUTS
P0 BOX 60, EUREKA, MO 63025
Telephone #(636)938-5300Fax #(636)587-3611
CERTIFICATE OF INSURANCE
- --------------------------------------------------------------------------------
COMPANIES AFFORDING COVERAGES
- --------------------------------------------------------------------------------
COMPANY COMPANY
LETTER A LETTER D
- --------------------------------------------------------------------------------
COMPANY COMPANY
LETTER B LETTER F
- --------------------------------------------------------------------------------
COMPANY COMPANY
LETTER C LETTER F
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
COVERAGES
THIS CERTIFICATE IS TO CERTIFY To SIX FLAGS ______OR ANY SUBSIDIARIES HEREAFTER
REFERRED TO AS A SIX FLAGS THAT POLICIES DESCRIBED BELOW HAVE BEEN ISSUED TO THE
INSURED BY THE UNDERSIGNED AND ARE IN FULL FORCE AND EFFECT AT THIS TIME. IF ANY
CHANGES ARE MADE IN THE POLICIES WHICH AFFECT THE INTEREST OF SIX FLAGS OR IF
ANY OF THE POLICIES ARE CANCELED AT THE REQUEST OF EITHER PARTY, WRITTEN NOTICE
WILL BE GIVEN BY THE INSURANCE COMPANY TO SIX FLAGS AT LEAST THIRTY (30) DAYS
PRIOR TO THE EFFECTIVE DATE THEREOF.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
CO. TYPE OF INSURANCE POLICY EFFE. EXP. LIMITS IN THOUSANDS
LTR. NUMBER DATE DATE
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
WORKERS COMPENSATION STATUTORY
EMPLOYERS LIABILITY (NOTE I) EA. ACCIDENT $____
o CERTIFICATE HOLDER NAMED ALT
EMPLOYER DISEASE-POLICY LIMIT $____
DISEASE EA. EMPLOYEE $____
- ----------------------------------------------------------------------------------------
GENERAL LIABILITY (NOTE 2) GENERAL AGG. $____
o COMPREHENSIVE GENERAL LIABILITY
o CLAIMS MADE o OCCURRENCE PRODUCT-COMP/OPS AGG. $____
o CERT. HOLDER NAMED ADDNL.
INSURED PERSONAL & ADV. INJURY $____
o WAIVER OF SUBROGATION WAIVED
AGAINST CERT. HOLDER EACH OCCURRENCE $____
o HOLD HARMLESS AGREEMENT WITH
CERT. HOLDER INSURED
o PROFESSIONAL LIABILITY FIRE DAMAGE
(ANY ONE FIRE) $____
MEDICAL EXPENSE
(ANY ONE PERSON) $____
- ----------------------------------------------------------------------------------------
AUTO LIABILITY COMBINED SINGLE LIMIT $____
o ANY AUTO
o ALL OWNED BODILY INJURY
o SCHEDULED AUTOS (PER PERSON) $____
o CERT. HOLDER NAMED ADDNL
INSURED BODILY INJURY
o WAIVER OF SUBROGATION AGAINST (PER ACCIDENT) $____
SIX FLAGS
PROPERTY DAMAGE $____
- ----------------------------------------------------------------------------------------
CARE, CUSTODY AND CONTROL (NOTE EACH OCCURRENCE $____
4) AGGREGATE $____
(IF APPLICABLE) DEDUCTIBLE $____
o ALL RISK
o LEGAL LIABILITY FORM
- ----------------------------------------------------------------------------------------
</TABLE>
Ex. D - 1
<PAGE>
<TABLE>
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
EXCESS LIABILITY (NOTE 5) EACH OCCURRENCE $____
o UMBRELLA AGGREGATE $____
o OTHER THAN UMBRELLA FORM DEDUCTIBLE $____
- ----------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/RESTRICTIONS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PRODUCER/AGENT INSURED
- --------------------------------------------------------------------------------
I DO HEREBY CERTIFY THAT THE INSURERS LISTED
HEREIN ARE AUTHORIZED TO TRANSACT BUSINESS DATE ISSUED_________________
IN AND FOR THE STATE OF ___ AND CARRY A.M.
BEST RATINGS OF ____________________________
REVERSE SIDE MUST BE COMPLETED
AUTHORIZED REPRESENTATIVE (OVER)
____________________________________________
- --------------------------------------------------------------------------------
POLICIES LISTED ON REVERSE SIDE INCLUDE COVERAGE FOR: CHECK ONE
YES NO
NOTE (1) WORKERS COMPENSATION AND EMPLOYER=S LIABILITY
(A) VOLUNTARY COMPENSATION ENDORSEMENT? ___ __
(B) DOES POLICY INCLUDE A WAIVER OF SUBROGATION ENDORSEMENT AS
REQUIRED BY CONTRACT WITH SIX FLAGS? ___ __
(C) ALTERNATE EMPLOYER ENDORSEMENT IN FAVOR OF SIX FLAGS? ___ __
(D) COVERAGE IS AFFORDED IN THE STATES OF: ___ __
NOTE (2) COMPREHENSIVE GENERAL LIABILITY
(A) COVERAGE WRITTEN ON A COMPREHENSIVE FORM? ___ __
(B) PRODUCTS OR COMPLETED OPERATIONS COVERAGES INCLUDED? ___ __
(C) IS POLLUTION COVERAGE INCLUDED? ___ __
(D) CONTRACTUAL LIABILITY COVERING HOLD HARMLESS AGREEMENT IN
CONTRACT WITH SIX FLAGS? ___ __
(E) WAIVER OF SUBROGATION ENDORSEMENT AGAINST SIX FLAGS? (F)
IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ___ __
(G) HAVE THERE EVER BEEN ANY PROFESSIONAL LIABILITY ACTIONS
AGAINST THE INSURED? IF YES, PLEASE EXPLAIN.___________ ___ __
_______________________________________________________
_______________________________________________________
_______________________________________________________
HAVE THERE BEEN ANY SETTLEMENTS? IF YES, PLEASE EXPLAIN. ___ __
_______________________________________________________
_______________________________________________________
_______________________________________________________
Ex. D - 2
<PAGE>
HAVE THERE BEEN ANY JUDGEMENTS? IF YES, PLEASE EXPLAIN. ___ __
_______________________________________________________
_______________________________________________________
_______________________________________________________
NOTE (3) AUTO LIABILITY
(A) ALL OWNED, HIRED AND NON-OWNED VEHICLES? ___ __
(B) WAIVER OF SUBROGATION AGAINST SIX FLAGS? ___ __
(C) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ___ __
NOTE (4) CARE, CUSTODY AND CONTROL
(A) IS COVERAGE INCLUDED FOR DAMAGES TO SIX FLAGS PROPERTY
WHILE BEING RAISED, LIFTED OR LOWERED WHILE USING CRANE,
BOOMS OR HOISTS? ___ __
NOTE (5) UMBRELLA FORM
(A) IS COVERAGE EXCESS OVER PRIMARY COMMERCIAL LIABILITY AND
EMPLOYERS LIABILITY? ___ __
(B) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ___ __
(C) WAIVER OF SUBROGATION AGAINST SIX FLAGS? ___ __
Ex. D - 3
<PAGE>
Exhibit 10.7
Six Flags Magic Mountain
Riddler
<PAGE>
RX TECHNOLOGY, INC.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made as of this 1st day of January, 2000, by and
between SIX FLAGS MAGIC MOUNTAIN, a division of Six Flags Theme Parks Inc., a
Delaware corporation, having offices at 26101 Magic Mountain Parkway, Valencia,
CA. 91355 ("Six Flags"), and RX TECHNOLOGY, INC., having offices at 2264 7th
Street, Mandeville, LA. 70471 ("RX")
W I T N E S S E T H
WHEREAS, Six Flags owns, operates or manages the theme amusement facility
which is open to the general public and known as Six Flags Magic Mountain in
Valencia, CA. (the "Park").
WHEREAS, RX desires to construct and operate a retail ride photo
concession known as RX Technology, Inc. (the "Ride Photo Shop") to ell
photographs of persons riding the Riddler Ride, the Batman Ride, the Goliath
ride, and the Children's coaster ride in the Park as set forth herein;
WHEREAS, Six Flags desires to grant RX a license to operate the Ride Photo
Shop in the Park, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, Six Flags and RX agree as follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX a license to construct a facility, subject to the provisions
of this Agreement, from which to operate, and to operate the Ride Photo Shop in
the Park in such locations of the Park as is set forth on Exhibit A hereto
during the period of time commencing January 1st, 2000 (the "Commencement Date")
and terminating at the end of the Park's 2000 operating season on December 31st,
2000 (the "Termination Date").
2. OPERATION.
A. Hours of Operation.
RX agrees to operate the Ride Photo Shop during the hours and
days, including Sundays and holidays, that the Park is open for business in
accordance with schedules prepared by Six Flags which Six Flags may modify at
Six
<PAGE>
Flags' sole discretion at any time on twenty-four (24) hours notice to RX and
such additional hours as are required by Six Flags. RX acknowledges that Six
Flags will suffer great harm if RX breaches the agreement set forth in this
subsection, the amount of which would be difficult to determine. Therefore, RX
agrees to pay Six Flags liquidated damages of $50.00 for each Park operating day
that RX opens the Ride Photo Shop thirty (30) minutes after the opening time of
the Park's RX Ride Location Operating Hours and/or closes the Ride Photo Shop
thirty (30) minutes before the closing time of the Park's RX Ride Location
Operating Hours, upon notice thereof by Six Flags and such liquidated damages
amount shall be increased an additional $50.00 for each successive violation of
Park RX Ride Location Operating Hours, upon notice thereof by Six Flags, up to a
maximum liquidated damages amount of $500.00.
B. Approval of Goods/Services.
RX agrees to submit samples of all merchandise for sale to
customers in the Park in connection with the Ride Photo Shop, for Six Flags'
approval in advance of sale of the same. RX agrees to make such changes to the
merchandise, at its sole cost and expense, as Six Flags shall reasonably
determine. RX also agrees to coordinate with the Park in coding each of RX's
Goods/Services and inputting the same in the cash register for tracking
purposes. To the extent requested by Six Flags, RX shall comply with Six Flags'
point of sale and other information systems requirements.
C. Price of Goods/Services.
(i) RX agrees to submit to Six Flags for its review and
approval, a retail price list of all RX's Merchandise for sale to customers of
the Park (the "Approved Price List") at least two (2) weeks prior to
Commencement Date or any proposed change in any previously approved price list.
RX agrees to make changes to the Approved Price List as Six Flags shall
reasonably request. RX shall be responsible for all costs and expenses
associated with production and printing of the Price List and any changes
thereto, and such costs shall not be deducted from Net Revenue (as hereinafter
defined).
(ii) RX agrees to make changes to the Approved Price List (the
"Revised Price List") at any time during the Term if Six Flags determines, in
its sole discretion that an adjustment is appropriate. RX shall be responsible
for all costs and expenses associated with production and printing of the
Revised Price List, and such costs shall not be deducted from Net Revenue (as
hereinafter defined).
(iii) RX agrees that it shall not make its Goods/Services
available to any party free of charge or at a discounted price unless RX is
engaging in sampling activities approved by Six Flags, etc. Notwithstanding the
foregoing, RX agrees to offer such discounts on its Goods/Services as Six Flags
shall require and as Six Flags shall offer in locations owned by Six Flags. RX
shall, at all times, charge
RX Agreement Page 2 of 19
<PAGE>
customers, including without limitation, family members, employees and business
associates, the price set forth on the Approved Price List for its
Goods/Services except as otherwise expressly set forth herein.
D. Methods of Sale; Payment and Return Policies.
(i) The Goods/Services shall be available for sale to
customers of the Park at point of purchase.
(ii) The following forms of payment for RX's Goods/Services
will be accepted: MasterCard, Visa, American Express and Discover credit cards
(collectively, the "Credit Cards"), and cash (each, a "Form of Payment"). Six
Flags may, in its sole discretion, discontinue and, if applicable, require RX to
discontinue any Form of Payment for Goods/Services sold hereunder. Conversely,
Six Flags may, in its sole discretion, require RX to accept such additional
forms of payment as may be accepted by Six Flags in the future; and in so doing,
RX agrees to submit to such reasonable rules/restrictions with respect thereto.
Payment for the Goods/Services shall be in accordance with the provisions of
Exhibit B - Payment/Return Agreement, which is attached hereto and incorporated
herein.
E. Reports and Records.
(i) Upon commencement of RX's daily operations, RX shall pick
up a cash till from the Park's cash control facility, and within one (1) hour
after the close of each Park day, RX shall deliver to the Park's cash control
facility the following: (a) remaining cash till, (b) a daily report of the day's
operations on Six Flags' "Daily Sales Report" form, and (C) the day's daily
gross receipts, including without imitation credit card sales drafts, credit
memos and all other materials evidencing sales transactions during such day
(collectively, the "Deposits"). Such Deposits are received subject to audit by
Six Flags as set forth herein and Six Flags may correct and credit or debit RX
for any inaccuracies or errors in RX's computation of Deposits. Six Flags may
refuse to accept or revoke acceptance of any Deposits, including any sales
drafts or credit adjustments, which are illegible or which fail to comply with
the terms of this Agreement, including, but not limited to, any federal or state
law.
(ii) RX shall retain copies of sales drafts and other
materials evidencing sales transactions related to sale of Goods/Services for a
period of one (1) year from date of transaction. This Section shall survive the
termination of the Agreement.
F. Compliance with Laws.
RX agrees that at all times during the Term it shall be in
compliance with all laws, rules and regulations with respect to operation of the
Ride Photo Shop in the Park, including, without limitation, all environmental
and employment laws, rules and regulations. RX Agrees that it shall be
responsible for
RX Agreement Page 3 of 19
<PAGE>
obtaining, at its sole cost and expense, all licensing and/or permits required
in connection with operation of the Ride Photo Shop in the Park.
G. Employees.
(i) RX acknowledges that it has no authority to employ persons
on behalf of Six Flags, and no employees or agents of RX shall be deemed to be
agents or employees of Six Flags.
(ii) Without Six Flags' prior written consent, RX shall not,
until after the second anniversary of the end of the Term, solicit for the
purpose of hiring or employ, directly or indirectly, any employee employed by,
or independent contractor engaging in business with, Six Flags, in each case,
during the Term. This subsection of the Agreement shall survive until the second
anniversary of the end of the Term.
(iii) RX and Managers of RX's Ride Photo Shop, must be trained
completely in the areas of labor law, wage and hour law, and regulations
regarding the employment of minors, it shall be the responsibility of RX to seek
and obtain outside agencies to provide this training.
(iv) RX shall develop their own employee handbook, which
handbook shall include Park rules, regulations, and work guidelines. Six Flags
shall provide such specific rules, regulations and work guidelines to RX. In
addition, RX's own statements regarding harassment, drug testing policies, fair
employment practices, and safety standards, etc., shall be included in RX's
employee handbook.
(v) RX represents and warrants that it shall, at its sole cost
and expense, recruit, train, supervise and furnish the services of at least one
(1) person to operate the Ride Photo Shop, and perform services in connection
with the Ride Photo Shop as set forth in Exhibit C attached hereto and
incorporated herein ("RX's Employees") during Operating Hours. RX acknowledges
that Six Flags will suffer great harm if RX breaches the agreement set forth in
this subclause, the amount of which would be difficult to determine. Therefore,
RX agrees to pay Six Flags liquidated damages of $250.00 for each Park operating
day that RX fails to furnish the services of one (1) trained person to operate
the Ride Photo Shop.
(vi) Six Flags shall provide RX with a list of approved
vendors where RX may purchase, at RX's expense, Park approved uniforms for use
by RX employees. RX agrees that all such uniforms are to be worn by RX
employees, at the proper length and in the proper size for each employee. RX
and/or employees of RX, are responsible for the care and laundering of RX
uniforms. Wardrobe facilities and/or lockers are not available for RX employees
to change into and out of Park uniforms. Employees of RX are expected to report
to their work location, dressed in the proper Park attire with uniforms clean
and neat, in order to present a well groomed appearance to Park guests. In RX's
absence, Six Flags reserves the right to dismiss
RX Agreement Page 4 of 19
<PAGE>
for the day, any RX employee Six Flags deems is not dressed in a presentable
manner or is groomed in such a manner as to negatively affect Park guests.
Should such dismissal be necessary and result in the closure of RX's Ride Photo
Shop, RX shall be responsible to pay Six Flags liquidated damages as stated in
Paragraph G, section (v) of this Agreement.
(vii) RX shall be fully responsible for all RX's Employees,
including without limitation, responsibility for all salaries and other
compensation, withholding taxes, worker's compensation insurance, and other
required payments in connection with such employees and shall be in compliance
with all laws, rules and regulations with respect thereto.
(viii) Each prospective employee of RX shall complete an
employment application, the form of which must be approved by Six Flags prior to
beginning work in the Park. In addition, each employee hired by RX to work in
the Park, must attend a Licensee Orientation as provided by Six Flags, prior to
beginning work in the Park.
(ix) it is the intention of Six Flags to maintain a drug and
alcohol free environment. As a Licensee of Six Flags, RX is required and agrees
to have in place a "Substance Abuse Policy" for its employees. This policy must
include supervisor awareness training, testing for reasonable suspicion and
discipline guidelines to terminate employment with or without cause for
violation of this policy. Testing may not take place on Park property and a
third party administrator must be utilized.
(x) RX agrees to verify, at its sole cost and expense, the
references of RX's Employees, including without limitation, prior positions of
employment, education, criminal records, immigration status, and right to work
in the United States and use due diligence to determine if any of RX's Employees
have provided false information or omitted significant information with respect
to their backgrounds and/or prior employment.
(xi) RX represents and warrants that it shall not, to RX's
knowledge, employ any person to work in the Park who has a criminal history
without Six Flags' knowledge and approval with respect to said employment. RX's
knowledge, for the purpose described in the immediately preceding sentence, is
the knowledge that RX would have known had RX performed a reference check of the
type performed by Six Flags. RX acknowledges that great harm can be suffered by
Six Flags if a RX employee is discovered to have a criminal record that could
have been discovered with a criminal history background check of the type
performed by Six Flags with respect to all prospective employees of Six Flags.
The parties agree that it will be difficult to determine the damages suffered by
Six Flags in the event of RX's failure to undertake such background checks.
Accordingly, the parties agree that in the event RX employs an individual for
work in the Park for whom RX has not, prior to hiring such person, undertaken a
criminal history background check of the type performed by Six Flags, then RX
shall pay Six Flags liquidated damages of
RX Agreement Page 5 of l9
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$1,000.00 with respect to each such employee of RX regardless of whether the
background check would have revealed any evidence of criminal history.
(xii) At the request of Six Flags, RX shall make available to
Six Flags all information obtained with respect to its employees, including,
without limitation, criminal history background checks.
(xiii) RX agrees to terminate employment at the Park for any
RX Employee working in the Park who: (a) is subsequently discovered to have a
criminal history and, after being advised of the same, Six Flags does not
approve said employment, (b) fails to comply with Park rules or (c) made
material misstatements or omissions on their employment application. RX agrees
to indemnify Six Flags from and against any claims by RX's employees arising
from or related to such dismissals.
(xiv) Six Flags agrees that RX may offer RX's Employees
discounts on Park admission and merchandise at the Park that Six Flags offers
its employees in accordance with Park policy.
3. FACILITY
A. Rights/Responsibilities.
(i) In connection with RX's operation and management of the
Ride Photo Shop, Six Flags agrees that RX shall be entitled use of and/or access
to: (a) the facility to be constructed by RX, subject to the terms of this
Agreement, at which the Ride Photo Shop is operated (the "Facility"), (b)
adjacent portions of the Facility, as may be necessary for the operation and
maintenance of the Ride Photo Shop, and (c) common ways and areas within the
Park for incinerator or trash purposes, loading and unloading supplies and
installation, repair and maintenance of Equipment and/or other elements related
to the Ride Photo Shop. Nothwithstanding the foregoing, that RX shall not have
access to or be permitted to use that portion of the facility designed for
retail space to be operated by Six Flags ("Adjacent Six Flags Retail Space").
(ii) Six Flags will be responsible for heating, ventilation, air
conditioning, plumbing, electrical, in-park telephone expenses related to the
operation of the Ride Photo Shop in the Facility. Six Flags also agrees to
provide the following: (i) identification cards to enter the Park for RX's
Employees in the performance of their duties, (ii) RX's Employee access to the
Park employee parking areas on a first-come, first-serve basis to be used in the
performance of their duties, and (iii) Six Flags agrees to allow RX to have
supplies shipped to the Park's warehouse facility provided such supplies are
picked up within a 24 hour period of being received.
(iii) RX will be responsible for depositing all trash in Six Flags'
designated trash dumpsters and cleaning the facility.
RX Agreement Page 6 of 19
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B. Construction.
(i) RX shall, at its own expense, construct the facility,
including the Adjacent Six Flags Retail Space, subject to the terms of this
Agreement. Prior to the construction of the Facility in the Park at which the
Ride Photo Shop is operated, RX will submit its plans to the Park for approval.
These plans will include exterior and interior finishes as well as proposed
signage. RX will design the exterior and interior of the Facility and the
signage so that they will be consistent with the theme of the area of the Park
in which the Facility is located and Six Flags' design requirements policy (the
"Design Policy") (a copy of the Design Policy in effect as of the date hereof is
attached hereto and incorporated herein) as set forth on Exhibit D, as Six Flags
may amend from time to time upon notice to RX.
(ii) RX agrees to obtain all permits, consents, approvals and
clearances with respect to any construction contemplated hereunder and comply
with all laws, rules and regulations with respect thereto, including Six Flags
Maintenance Department rules, and shall secure Six Flags' prior approval with
respect to the following: (a) contractors, subcontractors, designers, architects
and materialmen who will perform work or services or supply materials in
connection with the construction of the Facility, (b) dates of commencement and
completion with respect to each phase of the construction of the Facility and
(c) agreements with all contractors, subcontractors, designers architects and
materialmen. RX shall only enter into construction agreements hereunder which
permit assignment to Six Flags and its affiliates. All construction hereunder
shall be made in a good and workmanlike manner.
(iii) Six Flags shall have the right, but not the obligation,
to test and inspect the construction of the Facility. RX agrees, at its sole
cost and expense, to remedy any problems with the Facility, upon Six Flags'
request, including without limiting the foregoing, problems associated with
defective design, engineering, workmanship, failure of factory construction,
materials or any component parts.
(iv) RX shall not place, maintain, or permit to be placed or
maintained on any exterior portion of the Facility or on the interior side of or
immediately adjacent to any glass door, wall or window of said Facility, or
otherwise display outside said Facility in the confines of the Park, any signs,
advertisements, lettering, trade, brand or service name, mark or logo, neon
lights, flood lights, colored lights, flashing lights or other exterior lighting
without prior written consent of Six Flags, which consent may be granted or
withheld in the absolute discretion of Six Flags. RX shall not use in, on or
about said Facility, or elsewhere in the Park, any sound producing or
reproduction equipment audible inside or outside said Facility, without the
prior written consent of Six Flags.
C. Alterations.
(i) RX agrees to make alterations, modifications, additions,
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improvements or updates, at its sole cost and expense (including any necessary
design and engineering expenses), to the Facility [and/or the Equipment (as
hereinafter defined)], as hereinafter defined (collectively, the "Alterations"),
as shall be mutually agreed to by the parties and in accordance with the Design
Policy as Six Flags may amend from time to time upon notice to RX; provided,
however, that RX shall be required to make Alterations if: (i) the Alterations
are reasonably required by Six Flags: (x) for safety, quality or financial
control reasons, or (y) if new technology and improvements are made to the same
type of Facility [and/or Equipment] in the industry; and/or (ii) required by any
applicable laws, rules or regulations. All such Alterations shall be made in a
good and workmanlike manner.
(ii) RX covenants that it will not make, or suffer or permit
to be made, any Alterations in, on, or to the Facility and/or the Equipment
without first: (a) notifying Six Flags in writing sufficiently in advance of the
commencement thereof to enable Six Flags to post or record or both, appropriate
and effective notices of non-responsibility, (b) obtaining the written consent
of Six Flags thereto, which consent Six Flags shall not unreasonably withhold
provided that the proposed Alterations are of high quality and in harmony with
the overall design and appearance of the Park, and necessary to operate the Ride
Photo Shop in a safe and efficient manner, (c) obtaining the written approval of
Six Flags as to all contractors, subcontractors, and materialmen who will
perform work or services or supply materials in connection therewith and (d)
obtaining the written consent of Six Flags with respect to the proposed
commencement and completion date of such Alterations.
D. Maintenance and Repair.
RX agrees to properly maintain and keep in good repair and
condition the Facility, at its sole cost and expense. The Facility shall be
maintained in keeping with the themeing and overall aesthetics of the Park. In
the event any portion of the Facility and/or the Equipment is inoperative or a
component thereof has failed or is defective, RX shall repair the same no later
than 24 hours of RX's knowledge of the same or, in the case of Equipment, RX
shall secure comparable equipment (the "Replacement Equipment") and deliver the
same to the Park until such time as the Equipment is repaired. Failure of RX to
comply with the provisions of this subsection shall constitute default
hereunder.
E. Relocation.
RX agrees that Six Flags shall have the right to relocate RX
to another Facility in the Park, for any reason, provided that Six Flags agrees
to exercise reasonable care to minimize interference in or to RX's operations.
F. Ownership.
(i) it is understood and agreed that the Facility and the
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improvements thereto, whether made by RX or Six Flags hereunder, shall remain
the property of Six Flags including, without limitation, the trademarks and
other indicia of Six Flags, including an Alternate Name (hereinafter defined)
("Six Flags' Trademarks") and the trademarks of Six Flags' affiliates, including
Warner Bros. and DC Comics ("Affiliates' Trademarks")
(ii) It is further understood and agreed that the Equipment
(other than equipment in the adjacent Six Flags retail space), shall remain the
property of RX; provided, however, that if such Equipment has been paid for by
Six Flags, then such equipment shall remain the property of Six Flags. This
Section shall survive the termination of this Agreement.
G. Interference with Park/Parks' Operations.
RX understands that this Agreement may not be asserted to
affect or impede Six Flags' normal Park operations, including without
limitation, upgrading Park equipment, building and/or facilities, buying/selling
Park games or attractions, entering into agreements with other parties or
locating or changing other facilities, equipment, walkways or signage into or
surrounding the Facility, each without the consent of RX. RX shall have no
exclusive rights with respect to the sale and/or operation of concessions in the
Park similar in nature or type to the RX type Ride Photo Shop, during the term
of this Agreement.
4. EQUIPMENT.
A. Description.
RX agrees to provide, at its sole cost and expense, all
equipment, supplies, furnishings, displays, and other signage, cash registers,
credit card processing equipment and any other materials necessary to operate
the Ride Photo Shop (the "Equipment"). A general description of the Equipment is
set forth in Exhibit E, attached hereto and incorporated herein.
B. Delivery, Installation and Removal.
(i) RX agrees that it shall be responsible for the shipment,
installation and, promptly following the end of the Term, the removal, of the
Equipment, including parts therefor and/or Replacement Equipment (as hereinafter
defined), at its sole cost and expense. RX agrees that time is of the essence
with respect to this Agreement and the business of the Park is significantly
affected by RX's ability to have the Equipment installed and operating on
schedule and that the business, revenues and profits of the Park will be
affected in a materially adverse manner if the Equipment is not ready (in good
working order) for operation on the Commencement Date.
(ii) Six Flags shall have the right, but not the obligation,
to test
RX Agreement Page 9 of 19
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and inspect the Equipment and the installation and operation of the Equipment
during the Term. RX agrees, at its sole cost and expense, to remedy any problems
with the Equipment and installation thereof, upon Six Flags' request, including
without limiting the foregoing, problems associated with defective design,
engineering, workmanship, failure of factory construction, materials or any
component parts.
C. Additional Equipment.
RX agrees to install and/or supply additional Equipment, as
determined by mutual agreement of the parties, at no additional cost to Six
Flags.
5. PAYMENT TO RX.
A. Six Flags shall collect and record the receipts of the Ride Photo
Shop and Six Flags shall pay RX the following share of Net Revenues (as
hereinafter defined) during each operating season of the Term as follows:
Year RX's % of Net Revenue
---- ---------------------
2000 62%
B. "Net Revenue" means gross revenue of the Ride Photo Shop during
the applicable period less the sales tax paid or payable in respect thereto or
otherwise paid. RX agrees that Six Flags shall have the right to deduct the
following from RX's share of the Net Revenue: (ii) cash shortages, (iii) credit
card processing, and other transaction costs and charges, including charge backs
and fees related thereto, (iv) the cost associated with the damage or loss of
uniforms as set forth in more detail in Section 2 G (vi) hereof, and (v) the
cost of any bill or charge which is the basis or which may be the basis for a
lien against the Facility as set forth in more detail in Section 9 A (vii)
hereof.
C. RX's share of the Net Revenue will be calculated at the end of
the week. For payment purposes, a week shall be defined as the seven (7) day
period beginning Monday and ending on and including Sunday. Payments shall be
directed as set forth in this Agreement or as RX may otherwise direct in writing
and shall be payable twenty one (21) days from Six Flags' calculation thereof.
Six Flags shall have no further monetary liability or obligation to RX. Payments
shall be made to RX at the address indicated in the first paragraph of this
Agreement or otherwise as requested in writing by RX.
D. Notwithstanding Six Flags' deduction of sales tax from Net
Revenue, RX represents and warrants that all payments by Six Flags to RX of RX's
share of Net Revenue hereunder are exempt from any United States federal, state
and local taxes or other assessments, including any withholding taxes. RX shall
be solely responsible for, and shall pay when due, assessments arising from or
in connection with the receipt by RX of such Net Revenue.
RX Agreement Page 10 of 19
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6. AUDIT RIGHTS.
Until all claims and rights of Six Flags shall have been fully
ascertained, fixed and paid RX shall maintain, in accordance with generally
accepted accounting principles, separate and accurate records of the gross
receipts of the Ride Photo Shop at the Park showing in detail all business
transacted by RX. Six Flags shall have the right, at all reasonable times, to
examine and inspect such records as well as any other business records of RX
pertaining to the operation of the Ride Photo Shop. This Section shall survive
the termination of this Agreement.
7. CHANGE IN FINANCIAL CONDITION.
RX agrees to notify Six Flags promptly of any significant/material
change in its financial condition.
8. TRADEMARKS.
A. RX hereby grants Six Flags the exclusive royalty-free right and
license to use RX's trademarks, trade names, service marks, logos and symbols.
("RX's Trademarks") for the Term of the Agreement in connection with the Ride
Photo Shop in the Park. RX's Trademarks are and shall remain RX's sole and
exclusive property.
B. Six Flags reserves the right to create an alternate name and/or
logo (collectively, the "Alternate Name") for the Ride Photo Shop. Six Flags
shall own all right, title and interest in and to such Alternate Name, and all
goodwill with respect thereto shall inure to the benefit of Six Flags. RX agrees
that any Alternate Name shall be the exclusive property of Six Flags.
C. Six Flags' Trademarks are and shall remain the sole and exclusive
property of Six Flags, and Affiliates' Trademarks are and shall remain the sole
and exclusive property of Six Flags' affiliates, and RX shall not use nor permit
others to use Six Flags' Trademarks, including the Alternate Name, and
Affiliates' Trademarks for any purpose without the prior written consent of Six
Flags nor do anything which could in any way conflict with Six Flags' or its
affiliates' use or ownership of such trademarks.
9. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS.
A. RX represents and warrants that:
(i) RX is, and will during the term of this Agreement be,
solvent and able to meet its obligations hereunder as and when they become due;
(ii) RX shall not use, or suffer or permit any person or
persons
RX Agreement Page 11 of 19
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to use, the Equipment and/or Facility for any purpose other than as set forth
herein without the prior written consent of Six Flags, or in any unlawful manner
or for any unlawful purpose;
(iii) RX shall comply with, and use its best efforts to cause
its agents and employees to comply with all rules and regulations of the Park as
may be in effect from time to time. RX confirms that it has been provided with a
copy of the rules and regulations of the Park;
(iv) RX will not offer or provide any Goods/Services in or
from the Ride Photo Shop or elsewhere in the Park, without the prior express
written authorization of Six Flags. Any uncertainty with respect to the
Goods/Services which RX is authorized to offer or provide shall be resolved in
the manner which most limits and restricts RX's authority, and any reasonable
interpretation of such authority by Six Flags shall be binding upon RX;
(v) RX shall maintain, at its sole cost and expense during the
Term of this Agreement, a valid business license and any other necessary permits
or licenses and shall provide proof of same to Six Flags;
(vi) The Ride Photo Shop, including the Facility and the
Equipment with respect thereto, will be fit and safe for its intended commercial
use, shall be free from defects, shall comply with all applicable laws,
ordinances and regulations, including building, electrical and/or other codes,
and will meet the operation objectives set forth herein;
(vii) RX shall promptly pay all bills and charges relating to
the Ride Photo Shop in the Park, including any Alterations to the Equipment
and/or the Facility, and shall protect and indemnify Six Flags and the Park
against all such bills and charges and liens relating thereto. In the event that
RX desires to contest any bill or charge which is the basis or which may be the
basis for a lien against the Facility constituting the Ride Photo Shop or the
Park or both, RX shall, within five (5) days of notice therefor, obtain a bond
of, or deposit collateral with, a responsible corporate surety or depository to
protect against any such lien in the amount of any such bill estimated costs and
expenses, including without limitation, attorney's fees and interest. If RX
fails to post such bond or collateral within the aforementioned time period, Six
Flags may, without prejudice to any other right or remedy of Six Flags herein
have the option to: (a) pay any such claim, bill or charge on RX's behalf, and
RX shall reimburse Six Flags on demand for the amount of any such payment or (b)
have the right to set off the amount of said claim, bill or charge from the
portion of RX's Net Revenue due hereunder. Should any claim or lien be filed or
recorded affecting the Facility or the Park or both, or should any action
affecting the title thereto be commenced, RX shall give Six Flags written notice
thereof promptly after the same becomes known to RX, and RX shall thereafter
remedy the same with respect to the Facility or the Park or both;
RX Agreement Page l2 of 19
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(viii) RX's Trademarks, and/or any advertising, promotion or
publicity materials supplied Six Flags by RX hereunder will not violate,
infringe upon or give rise to any adverse claim with respect to any common law
or other right whatsoever, including, without limitation, any copyright,
trademark, service mark, right of privacy or publicity or contract right of any
party or violate any other law; and
(ix) Except as otherwise expressly permitted herein, RX shall
not have the right to use or permit the use of any of Six Flags' Trademarks,
including any depiction of the Park or Affiliates' Trademarks without Six Flags'
prior written consent identifying the use consented to, which consent may be
granted or withheld in the absolute discretion of Six Flags. This Section shall
survive the termination of the Agreement.
10. SUBCONTRACTORS.
Six Flags acknowledges that RX has the right to utilize
subcontractors (collectively, the "Subcontractors") to fulfill the obligations
set forth hereunder, subject to Six Flags' prior approval with respect thereto
and the work to be performed thereby. RX agrees that (i) the terms of the
agreement between RX and any Subcontractor will comply with all the terms of
this Agreement, including, without limitation, the provisions concerning
criminal background checks of persons working at the Park for or on behalf of RX
and the provisions concerning insurance, (ii) there will be no disruption in the
operation of the Ride Photo Shop whatsoever (even in the event of replacement of
the Subcontractors), and (iii) RX shall not cause or permit any liens, claims or
encumbrances to be placed on or with respect to the Equipment, Facility, Park or
any other property of Six Flags or RX which is the subject of this Agreement.
11. ASSIGNMENT.
The obligations of RX herein are personal in nature and this
Agreement and the obligations of RX hereunder shall not be assigned or otherwise
transferred by RX, in whole or in part, to any third party without the prior
written consent of Six Flags. Six Flags may assign this Agreement to any
affiliate of Six Flags. For purposes of this Agreement, the term "assigned" or
"assignment" shall include, without limitation, a consolidation or merger of RX
with or into another party, a reorganization or a sale of all or substantially
all of the assets of RX to another party, and/or transfer of a controlling
interest in RX's business in or to another party.
12. INDEMNITY.
RX covenants that it will protect, defend, hold harmless and
indemnify Six Flags, its directors, officers, employees, agents, subsidiaries,
affiliates, partners and parent companies from and against any and all expenses,
claims, actions, liabilities, attorney's fees and costs, damages and losses of
any kind or nature whatsoever (including, without limitation of the foregoing,
death of or injury to
RX Agreement Page l3 of 19
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persons and damage to property), actually or allegedly resulting from or
connected with the operation of the Ride Photo Shop (including, without
limitation of the foregoing, goods sold, work done, services rendered or
products utilized therein, advertising and promotion therefor, lack of repair in
or about the area occupied or arising out of any actual or alleged infringement
of any patent or claim of patent, copyright, trademark, service mark, or trade
name) or from the omission or commission of any act, lawful or unlawful, or
breach of this Agreement by RX or its agents or employees, whether or not such
act is within the scope of the employment of such agents or employees and not
due to the negligence or willful misconduct of Six Flags or its employees and
agents. This Section shall survive the termination of the Agreement.
13. INSURANCE.
A. To insure RX's performance of the obligations and warranties as
set forth herein, but not by way of limitation, RX agrees, at its expense, to
procure and maintain Comprehensive General Liability against claims for bodily
injury, personal injury or death and property damage, Contractual Liability,
Products Liability, Automobile Liability against claims for bodily injury,
personal injury or death and property damage, and Worker's Compensation
Insurance, including an employer liability endorsement (collectively, the
"Insurance") each covering claims occurring upon, in or about the Park, and on,
in or about the adjoining streets, sidewalks and passageways and identifying
this Agreement, the Park and Six Flags Theme Parks Inc. as being named as
additional insured on the Insurance policies described herein, including any
renewals of such Insurance. The Insurance shall apply separately to each insured
against whom a claim is made or suit is brought. The insurance shall remain in
full force and effect for the Term of this Agreement and one (1) year
thereafter, and all such Insurance shall include a waiver of subrogation against
Six Flags. This Section shall survive the termination of the Agreement.
B. The Insurance shall be written by a company rated "A" or better
by Best Insurance Reports, or by such other company consented to in writing by
Six Flags. The policy of Insurance will provide, inter alia, for thirty (30)
days advance notice to Six Flags and RX of any proposed policy modification or
cancellation. Upon any cancellation and/or modification of any Insurance policy
required hereby, and prior to the effective date thereof, RX shall deliver
replacement insurance to Six Flags. RX shall forward the Certificate of
Insurance form attached hereto and incorporated herein as Exhibit F to its
insurer for execution and transmit such executed Certificate to Six Flags
promptly after execution of this Agreement, and RX shall also supply Six Flags
with its official Certificate of Insurance promptly after execution of this
Agreement for its records.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out of
a single occurrence and $3,000,000 for all claims in the aggregate.
RX Agreement Page l4 of 19
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D. All Insurance policies required to be maintained shall be primary
and shall not require contribution from any coverage maintained by Six Flags,
and shall not contain, without Six Flags' prior written consent, any special or
non-customary exclusions.
E. RX shall further, upon request, furnish Six Flags with a
certificate from RX's insurance carrier certifying that RX has obtained Worker's
Compensation insurance upon its employees, or an opinion of counsel satisfactory
to Six Flags that such coverage is not required.
F. RX understands that Six Flags' rights and RX's obligations
hereunder shall not be limited or affected by the provisions of this Section 13.
14. BREACH.
In the event of breach of any provision of this Agreement by RX or
in the event RX should become insolvent, file a voluntary petition in
bankruptcy, have a receiver, liquidator or trustee in bankruptcy appointed over
its affairs, have a significant material adverse change in its financial
condition, and notwithstanding Six Flags' right to receive liquidated damages
hereunder, in lieu thereof, Six Flags may, at its option, then or at any time
thereafter while said breach continues, upon fifteen (15) days prior written
notice to RX, terminate this Agreement and the license and privileges granted
hereby and be relieved of all further obligation hereunder arising after the
date of termination. In the event of termination hereunder, RX shall then quit
and surrender the premises as set forth in this Agreement and the license and
privileges granted hereby shall then terminate; provided, however, that RX shall
remain liable for all obligations under this Agreement, and Six Flags may, in
addition to any remedy herein provided, recover from RX any damages to which it
may be entitled in law or equity. This Section shall survive the termination of
this Agreement.
15. NOTICES.
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To Six Flags: Six Flags Magic Mountain
26101 Magic Mountain Parkway
Valencia, CA. 91355
Attn: Director, Retail Dept.
Fax: (805)255-4789
copy to: Premier Parks
122 East 42nd Street 49th Floor
New York, NY 10168
RX Agreement Page 15 of 19
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Attn: General Counsel
Fax: (212) 949-6203
To RX: RX Technology, Inc.
2264 7th Street
Mandeville, LA. 70471
Attn: D. Rex Gay
Fax: 504-727-9815
or to such other addresses as the parties may direct by written notice given as
hereinabove provided. Notice shall be deemed given when received as evidenced by
the return receipt or the date such notice is first refused, if that be the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
16. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, RX may,
subject to any indebtedness of RX to Six Flags, promptly remove RX's Equipment
from the Park, except that Six Flags' Trademarks or Six Flags' Affiliates'
Trademarks shall be removed from the Equipment and remain at the Park, and RX
shall quit and surrender the Ride Photo Shop in the Park in good condition,
reasonable wear and tear excepted. Unless the parties otherwise agree, if RX
fails to remove the Equipment from the Park within five (5) days after
termination of this Agreement, then RX shall be deemed to have abandoned such
property and title to the same shall at that time vest in Six Flags. Any costs
and expenses incurred by Six Flags in removing such abandoned property
(including the reasonable value of the services rendered by Park employees in
connection therewith) shall be paid to Six Flags by RX promptly following demand
therefor. This Section shall survive the termination of this Agreement.
17. GOVERNING LAW.
A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State of
California (the "Specified State") and that the laws of the Specified State
shall govern the construction, interpretation and enforceability of this
Agreement. Should any dispute arise in connection with the construction,
interpretation, performance or enforcement of the provisions of this Agreement,
Each of the parties hereto agree that any such action shall be brought only in
the courts located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the
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relationship of the parties hereto, (ii) agree that any such action, suit or
proceeding shall be brought in any state or federal court of competent
jurisdiction sitting in the federal court district in the Specified State, (iii)
submits to the jurisdiction of such courts and (iv) to the fullest extent
permitted by law, agree that it will not bring any action, suit or proceeding in
any forum other than as provided herein (but nothing herein shall affect the
right of the Six Flags to bring any action, suit or proceeding in any other
forum to the extent necessary to enforce its rights under this Agreement).
18. RELATIONSHIP OF THE PARTIES.
RX is an independent contractor. Nothing contained in or done
pursuant to this Agreement shall be construed as creating a partnership, agency,
joint employer, joint venture or landlord-tenant relationship. Except as
otherwise expressly provided in this Agreement, no party shall become bound,
with respect to third parties, by any representation, act or omission of the
other.
19. FORCE MAJEURE.
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God. In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
20. PUBLICITY.
A. Six Flags shall, at its discretion, develop, direct and produce
any and all advertising and promotion in connection with the Ride Photo Shop in
the Park for the purposes of advertising, promoting, publicizing and
merchandising the Ride Photo Shop in the Park. RX agrees to cooperate, as
necessary, when requested to provide any advertising or promotion with respect
to the Ride Photo Shop.
B. Six Flags shall have the right to use RX's Trademarks and the
names of any person or entity rendering services on or associated with the Ride
Photo Shop, as well as any such person or entity's biography, photographic or
non-photographic likeness and recorded voice.
C. RX shall not have the right to have or cause to have sponsors
with respect to the Ride Photo Shop without the prior written approval of Six
Flags.
D. RX agrees that Six Flags may obtain sponsors for the Ride Photo
Shop which may include affixing signage in or around the Ride Photo Shop, and
any proceeds Six Flags derives in connection therewith shall be solely that of
Six Flags.
RX Agreement Page l7 of 19
<PAGE>
21. PROPRIETARY INFORMATION.
RX agrees that this Agreement and all information regarding the
business operations, policies and practices of Six Flags ("Proprietary
Information") acquired or earned in connection with the activities conducted
under this Agreement shall be deemed confidential and shall be kept in strict
confidence under appropriate safeguards. The term Proprietary Information, as
used herein, does not include any information that is or becomes generally
available to the public other than as a result of disclosure in violation of
this Agreement. This Section shall survive the termination of the Agreement.
22. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
23. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules hereto)
constitutes the entire agreement between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
agreements and undertakings of the parties pertaining to the subject matter
hereof. This Agreement may not be modified except by written instrument duly
executed by the parties hereto.
----------------------
RX Agreement Page 18 of 19
<PAGE>
IN WITNESS WHEREOF, this License Agreement has been duly executed by the
parties hereto on the day and year first hereinabove written.
SIX FLAGS MAGIC MOUNTAIN,
a division of Six Flags Theme Parks Inc.
By: /s/ Del Holland
------------------------------------
Del Holland
Vice President, General Manager
RX TECHNOLOGY, INC.
By: /s/ Donald Rex Gay
------------------------------------
D. Rex Gay
President
RX Agreement Page 19 of 19
<PAGE>
Exhibit A
Location
Locations shall be determined by Six Flags in its sole discretion and may
be changed from time to time in the reasonable discretion of Six Flags.
RX SHALL OPERATE THE RIDE PHOTO SHOPS AT THE FOLLOWING LOCATIONS:
1. Riddler's Revenge Roller Coaster
2. Batman the Ride Roller Coaster
3. Children's Roller Coaster in Bugs Bunny World
4. Goliath Ride Roller Coaster
RX Agreement
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) RX shall comply with Six Flags' credit card
procedures (the "Credit Card Procedures") (a list of the Credit Card Procedures
in effect as of the date hereof is attached hereto and is incorporated herein),
as Six Flags may amend them from time to time upon notice to RX, with respect to
acceptance of Credit Cards as payment for any Goods/Services.
(ii) RX agrees that it shall not: (A) discriminate in
favor of any Credit Card accepted for payment over another, (B) require a
minimum transaction amount or impose a surcharge as a condition for honoring
Credit Cards, (C) impose a requirement on Credit Card holders to provide any
personal information as a condition for honoring Credit Cards unless otherwise
required by the Credit Card Procedures, (D) make or require a photocopy of a
Credit Card, (E) make a Credit Card sale where only part of the consideration
due is paid by use of such Credit Card, or (F) accept a Credit Card for any
purpose which is prohibited by the Credit Card Procedures.
(iii) RX shall not make a Credit Card sale to any person
if: (A) the Credit Card being presented has expired according to the expiration
date shown on such Credit Card, (B) the sale has been declined for
authorization, (c) RX has reasonable grounds to believe the Credit Card being
presented is counterfeit, fraudulent or stolen, or (D) the signature on the
Credit Card does not appear to be the same as the signature on the sales draft
or the spelling of the signature on the sales draft is different from the
spelling of the name on the Credit Card. RX shall use reasonable efforts to
retrieve any credit card from the customer when instructed by a service provider
in response to an authorization or other inquiry.
(iv) RX agrees to display symbols of the Credit Cards,
supplied by Six Flags hereunder, at its Facility in the Park to effectively
inform customers of the Park that the Credit Cards are honored by RX.
(b) Returns and Adjustments.
(i) All disputes between RX and any Credit Card holder
respecting any Credit Card transaction hereunder shall be settled between RX and
such Credit Card holder. RX agrees that in the event of a Credit Card dispute,
RX
RX Agreement
<PAGE>
shall reasonably address the Credit Card holder's concern in a good faith
manner.
(ii) RX shall maintain a fair and consistent policy for
exchange and return of Goods/Services and for the adjustment of amounts due on
Credit Card transactions and such policy shall be the same as available to cash
customers. RX shall make no cash refunds or payments to Credit Card holders for
returns or adjustments on Credit Card sales.
(iii) When a refund or payment is due to a Credit Card
holder for return or adjustment, RX shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible credit adjustment memo on
a form provided or approved by Six Flags and deliver to the Credit Card holder a
copy of the completed form. Each credit adjustment memo shall be imprinted with
or contain the following: (A) Six Flags' name and merchant account number, (B)
city and address where the credit or adjustment occurred, (C) Credit Card
holder's name and Credit Card number, (D) Credit Card expiration date, (E) the
date of the return or adjustment and the date of the initial transaction, if
available, (F) the amount of the credit, and (vii) a brief description of the
Goods/Services returned.]
(iv) With respect to each credit adjustment memo
presented to Six Flags and/or transmitted hereunder, RX represents and warrants
that: (A) the credit adjustment memo represents an amount lawfully due to a
Credit Card holder for the return or adjustment of Goods/Services previously
purchased with the Credit Card, (B) a sales draft relating to and including the
amount of the credit memo was previously presented to Six Flags and/or
transmitted hereunder, (C) the credit adjustment memo does not duplicate
information concerning the same transaction in any other credit slip unless Six
Flags requests a resubmission, (D) the signature appearing on the credit
adjustment memo is that of an authorized employee of RX, and (E) RX has complied
fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX fails to comply with the Credit Card
Procedures or the terms of this Exhibit C for a given Credit Card transaction
and said sales draft is returned to Six Flags, or in the event Goods/Services
are returned by the customer that paid by Credit Card, or in the event
Goods/Services are not received by customer or any defense or problem is made or
presented by customer questioning the validity or authorization of the
transaction, RX agrees that Six Flags may, in its sole discretion: (i) deduct
the amount of said Credit Card transaction from RX's share of the revenue from
the Ride Photo Shop due and owing RX, if any, or (ii) bill RX in the amount of
said Credit Card transaction, and RX shall pay Six Flags the same within five
(5) days of receipt therefor, or (iii) demand payment from RX in the amount of
said Credit Card transaction and RX shall pay Six Flags immediately upon its
receipt of Six Flags' demand. Failure of RX to pay Six Flags as set forth herein
for any outstanding Credit Card transactions shall constitute a breach of the
Agreement.
RX Agreement
<PAGE>
(d) Termination of Acceptance.
In the event Six Flags' agreement with respect to the
Credit Cards terminates or Six Flags, in its sole discretion, determines that it
does not want RX to accept Credit Cards as payment for Goods/Services hereunder,
RX agrees to discontinue acceptance of Credit Cards and remove the Credit Card
symbols from the Facility upon notification by Six Flags.
2. CASH.
(a) Acceptance.
RX represents and warrants that it shall cause all cash
received by or on RX's behalf for sale of Goods/Services hereunder to be rung in
the cash register or other Six Flags approved cash collection equipment and
deposited in such cash register or other equipment at the time of sale. RX
agrees that it shall not accept cash for a mail or telephone order transaction.
(b) Returns and Adjustments.
(i) All disputes between RX and any customer respecting
any cash transaction hereunder shall be settled between RX and such customer. RX
agrees that in the event of a dispute, RX shall reasonably address the
customer's concern in a good faith manner.
(ii) RX shall maintain a fair and consistent policy for
exchange and return of merchandise and for the adjustment of amounts due on cash
transactions and such policy shall be the same as available to credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX shall prepare, execute and deliver to Six Flags or
cause to be delivered to be delivered to Six Flags a legible authorized refund
slip.
(iv) With respect to each legible authorized refund slip
presented to Six Flags hereunder, RX represents and warrants that (A) the refund
slip represents an amount lawfully due customer for the return or adjustment of
Goods/Services previously purchased in cash, (B) a sales draft relating to and
including the amount of the refund was previously presented to Six Flags and/or
transmitted hereunder, (c) the refund slip does not duplicate information
concerning the same transaction in any other refund unless Six Flags requests a
resubmission, (D) the signature appearing on the refund slip is that of RX, and
(E) RX has complied fully with the terms of this Agreement.
(v) RX agrees that in the event Goods/Services hereunder
are returned on a day that said Goods/Services were not purchased, Six Flags
may, in its sole discretion: (A) deduct the amount of said return from RX's
RX Agreement
<PAGE>
share of the revenue from the Ride Photo Shop due and owing RX, if any; (B) bill
RX in the amount of said return and RX shall pay Six Flags the same within five
(5) days of receipt therefor or (c) demand payment from RX in said amount and RX
shall pay Six Flags immediately upon receipt of Six Flags' demand. Failure of RX
to pay Six Flags as set forth herein for any amount outstanding shall constitute
a breach of the Agreement.
Credit Card Procedures
RX represents and warrants that it shall follow the following Credit Card
Procedures, as may be amended from time to time by Six Flags upon notice to RX:
1. Each Credit Card sale shall be evidenced by a legible sales draft
(the "Draft") on a form approved by Six Flags, indicating the full amount due
for Goods/Services sold hereunder.
2. Each Draft shall be imprinted by RX, or show evidence of the
electronic equivalent obtained through use of a terminal which reads the
magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) Six Flags'
name and merchant account number, (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including the
account number, name and expiration date of the Credit Card, (iv) the date the
transaction takes place and the price of the Goods/Services, (v) total amount of
the transaction, including all applicable taxes, (vi) description of
Goods/Services, and (vii) signature of the Credit Card holder.
4. RX shall compare the signature on the Draft with the signature on
the Credit Card to ascertain that they are the same, and if the Credit Card has
a photograph of the Credit Card holder, verify that the Credit Card holder and
the person presenting the Credit Card appear to be the same person. If RX
believes there is a discrepancy in the signature or if the photographic
identification is uncertain, RX shall contact the service provides for
instructions.
5. If the signature panel on the Credit Card is blank, RX shall do
the following: (i) review positive identification to determine that the user is
the Credit Card holder; such identification must consist of a current official
government identification document (such as a passport or driver's license) that
bears the Credit Card holder's signature, (ii) indicate such positive
identification (including any serial number and expiration date) on the Draft
and (iii) require the Credit Card holder to sign the signature panel of the
Credit Card prior to completing the transaction.
6. On mail and telephone order sales, if any, RX shall print on the
Draft the information required in Paragraph 3 of these Credit Card Procedures
and, in addition, the following: (i) the customer's name and account number,
(ii) whether the order was placed by mail (M.O.) or telephone (T.O.), and (iii)
whether or not
RX Agreement
<PAGE>
authorization is obtained. With respect to mail and telephone order sales, RX
does not need to secure the Credit Card holder's signature or Credit Card
imprint. RX understands that telephone and mail order transactions are permitted
at RX's sole risk; namely, that any defense or problem raised by a customer
questioning the validity or authorization of the transaction may be made.
7. For each Credit Card sale, RX shall deliver or cause to be
delivered a copy of the completed sales draft to the customer, evidencing the
full amount due for the Goods/Services.
8. RX shall not complete a sales transaction without first obtaining
an authorization from the designated service provider for the total amount of
the transaction. RX shall print legibly on the Draft the authorization/approval
code, evidencing any authorization so obtained.
RX Agreement
<PAGE>
Exhibit C
Employees
RX's Employees shall include the following:
No. of Employees Title Function Location
- ---------------- ----- -------- --------
RX Agreement
<PAGE>
Exhibit D
LESSEE
AND
CONSULTANT
DESIGN GUIDELINES
Kevin P. Barbee, AIA
January 9, 1994
RX Agreement
<PAGE>
Exhibit E
Equipment
Quantity Description [Year/Brand/Item/Special Features] Improvements
- -------- ---------------------------------------------- ------------
RX Agreement
<PAGE>
Exhibit 10.8
Six Flags Magic Mountain
Wile E. Coyote
<PAGE>
RX TECHNOLOGY, INC.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made as of this 1st day of January, 2000, by and
between SIX FLAGS MAGiC MOUNTAIN, a division of Six Flags Theme Parks Inc., a
Delaware corporation, having offices at 26101 Magic Mountain Parkway, Valencia,
CA. 91355 ("Six Flags"), and RX TECHNOLOGY, INC., having offices at 2264 7th
Street, Mandevilie, LA. 70471 ("RX")
W I T N E S S E T H
WHEREAS, Six Flags owns, operates or manages the theme amusement facility
which is open to the general public and known as Six Flags Magic Mountain in
Valencia, CA. (the "Park").
WHEREAS, RX desires to construct and operate a retail ride photo
concession known as RX Technology, Inc. (the "Ride Photo Shop") to sell
photographs of persons riding the Riddler Ride, the Batman Ride, the Goliath
ride, and the Children's coaster ride in the Park as set forth herein;
WHEREAS, Six Flags desires to grant RX a license to operate the Ride Photo
Shop in the Park, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, Six Flags and RX agree as follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX a license to construct a facility, subject to the provisions
of this Agreement, from which to operate, and to operate the Ride Photo Shop in
the Park in such locations of the Park as is set forth on Exhibit A hereto
during the period of time commencing January 1st, 2000 (the "Commencement Date")
and terminating at the end of the Park's 2000 operating season on December 31st,
2000 (the "Termination Date").
2. OPERATION.
A. Hours of Operation.
RX agrees to operate the Ride Photo Shop during the hours and
days, including Sundays and holidays, that the Park is open for business in
accordance with schedules prepared by Six Flags which Six Flags may modify at
Six
<PAGE>
Flags' sole discretion at any time on twenty-four (24) hours notice to RX and
such additional hours as are required by Six Flags. RX acknowledges that Six
Flags will suffer great harm if RX breaches the agreement set forth in this
subsection, the amount of which would be difficult to determine. Therefore, RX
agrees to pay Six Flags liquidated damages of $50.00 for each Park operating day
that RX opens the Ride Photo Shop thirty (30) minutes after the opening time of
the Park's RX Ride Location Operating Hours and/or closes the Ride Photo Shop
thirty (30) minutes before the closing time of the Park's RX Ride Location
Operating Hours, upon notice thereof by Six Flags and such liquidated damages
amount shall be increased an additional $50.00 for each successive violation of
Park RX Ride Location Operating Hours, upon notice thereof by Six Flags, up to a
maximum liquidated damages amount of $500.00.
B. Approval of Goods/Services.
RX agrees to submit samples of all merchandise for sale to
customers in the Park in connection with the Ride Photo Shop, for Six Flags'
approval in advance of sale of the same. RX agrees to make such changes to the
merchandise, at its sole cost and expense, as Six Flags shall reasonably
determine. RX also agrees to coordinate with the Park in coding each of RX's
Goods/Services and inputting the same in the cash register for tracking
purposes. To the extent requested by Six Flags, RX shall comply with Six Flags'
point of sale and other information systems requirements.
C. Price of Goods/Services.
(i) RX agrees to submit to Six Flags for its review and
approval, a retail price list of all RX's Merchandise for sale to customers of
the Park (the "Approved Price List") at least two (2) weeks prior to
Commencement Date or any proposed change in any previously approved price list.
RX agrees to make changes to the Approved Price List as Six Flags shall
reasonably request. RX shall be responsible for all costs and expenses
associated with production and printing of the Price List and any changes
thereto, and such costs shall not be deducted from Net Revenue (as hereinafter
defined).
(ii) RX agrees to make changes to the Approved Price List (the
"Revised Price List") at any time during the Term if Six Flags determines, in
its sole discretion that an adjustment is appropriate. RX shall be responsible
for all costs and expenses associated with production and printing of the
Revised Price List, and such costs shall not be deducted from Net Revenue (as
hereinafter defined).
(iii) RX agrees that it shall not make its Goods/Services
available to any party free of charge or at a discounted price unless RX is
engaging in sampling activities approved by Six Flags, etc. Notwithstanding the
foregoing, RX agrees to offer such discounts on its Goods/Services as Six Flags
shall require and as Six Flags shall offer in locations owned by Six Flags. RX
shall, at all times, charge
RX Agreement Page 2 of 19
<PAGE>
customers, including without limitation, family members, employees and business
associates, the price set forth on the Approved Price List for its
Goods/Services except as otherwise expressly set forth herein.
D. Methods of Sale; Payment and Return Policies.
(i) The Goods/Services shall be available for sale to
customers of the Park at point of purchase.
(ii) The following forms of payment for RX's Goods/Services
will be accepted: MasterCard, Visa, American Express and Discover credit cards
(collectively, the "Credit Cards"), and cash (each, a "Form of Payment"). Six
Flags may, in its sole discretion, discontinue and, if applicable, require RX to
discontinue any Form of Payment for Goods/Services sold hereunder. Conversely,
Six Flags may, in its sole discretion, require RX to accept such additional
forms of payment as may be accepted by Six Flags in the future; and in so doing,
RX agrees to submit to such reasonable rules/restrictions with respect thereto.
Payment for the Goods/Services shall be in accordance with the provisions of
Exhibit B - Payment/Return Agreement, which is attached hereto and incorporated
herein.
E. Reports and Records.
(i) Upon commencement of RX's daily operations, RX shall pick
up a cash till from the Park's cash control facility, and within one (1) hour
after the close of each Park day, RX shall deliver to the Park's cash control
facility the following: (a) remaining cash till, (b) a daily report of the day's
operations on Six Flags' "Daily Sales Report" form, and (c) the day's daily
gross receipts, including without limitation credit card sales drafts, credit
memos and all other materials evidencing sales transactions during such day
(collectively, the "Deposits"). Such Deposits are received subject to audit by
Six Flags as set forth herein and Six Flags may correct and credit or debit RX
for any inaccuracies or errors in RX's computation of Deposits. Six Flags may
refuse to accept or revoke acceptance of any Deposits, including any sales
drafts or credit adjustments, which are illegible or which fail to comply with
the terms of this Agreement, including, but not limited to, any federal or state
law.
(ii) RX shall retain copies of sales drafts and other
materials evidencing sales transactions related to sale of Goods/Services for a
period of one (1) year from date of transaction. This Section shall survive the
termination of the Agreement.
F. Compliance with Laws.
RX agrees that at all times during the Term it shall be in
compliance with all laws, rules and regulations with respect to operation of the
Ride Photo Shop in the Park, including, without limitation, all environmental
and employment laws, rules and regulations. RX Agrees that it shall be
responsible for
RX Agreement Page 3 of 19
<PAGE>
obtaining, at its sole cost and expense, all licensing and/or permits required
in connection with operation of the Ride Photo Shop in the Park.
G. Employees.
(i) RX acknowledges that it has no authority to employ persons
on behalf of Six Flags, and no employees or agents of RX shall be deemed to be
agents or employees of Six Flags.
(ii) Without Six Flags' prior written consent, RX shall not,
until after the second anniversary of the end of the Term, solicit for the
purpose of hiring or employ, directly or indirectly, any employee employed by,
or independent contractor engaging in business with, Six Flags, in each case,
during the Term. This subsection of the Agreement shall survive until the second
anniversary of the end of the Term.
(iii) RX and Managers of RX's Ride Photo Shop, must be trained
completely in the areas of labor law, wage and hour law, and regulations
regarding the employment of minors. It shall be the responsibility of RX to seek
and obtain outside agencies to provide this training.
(iv) RX shall develop their own employee handbook, which
handbook shall include Park rules, regulations, and work guidelines. Six Flags
shall provide such specific rules, regulations and work guidelines to RX. In
addition, RX's own statements regarding harassment, drug testing policies, fair
employment practices, and safety standards, etc., shall be included in RX's
employee handbook.
(v) RX represents and warrants that it shall, at its sole cost
and expense, recruit, train, supervise and furnish the services of at least one
(1) person to operate the Ride Photo Shop, and perform services in connection
with the Ride Photo Shop as set forth in Exhibit C attached hereto and
incorporated herein ("RX's Employees") during Operating Hours. RX acknowledges
that Six Flags will suffer great harm if RX breaches the agreement set forth in
this subclause, the amount of which would be difficult to determine. Therefore,
RX agrees to pay Six Flags liquidated damages of $250.00 for each Park operating
day that RX fails to furnish the services of one (1) trained person to operate
the Ride Photo Shop.
(vi) Six Flags shall provide RX with a list of approved
vendors where RX may purchase, at RX's expense, Park approved uniforms for use
by RX employees. RX agrees that all such uniforms are to be worn by RX
employees, at the proper length and in the proper size for each employee. RX
and/or employees of RX, are responsible for the care and laundering of RX
uniforms. Wardrobe facilities and/or lockers are not available for RX employees
to change into and out of Park uniforms. Employees of RX are expected to report
to their work location, dressed in the proper Park attire with uniforms clean
and neat, in order to present a well groomed appearance to Park guests. In RX's
absence, Six Flags reserves the right to dismiss
RX Agreement Page 4 of 19
<PAGE>
for the day, any RX employee Six Flags deems is not dressed in a presentable
manner or is groomed in such a manner as to negatively affect Park guests.
Should such dismissal be necessary and result in the closure of RX's Ride Photo
Shop, RX shall be responsible to pay Six Flags liquidated damages as stated in
Paragraph G, section (v) of this Agreement.
(vii) RX shall be fully responsible for all RX's Employees,
including without limitation, responsibility for all salaries and other
compensation, withholding taxes, worker's compensation insurance, and other
required payments in connection with such employees and shall be in compliance
with all laws, rules and regulations with respect thereto.
(viii) Each prospective employee of RX shall complete an
employment application, the form of which must be approved by Six Flags prior to
beginning work in the Park. In addition, each employee hired by RX to work in
the Park, must attend a Licensee Orientation as provided by Six Flags, prior to
beginning work in the Park.
(ix) It is the intention of Six Flags to maintain a drug and
alcohol free environment. As a Licensee of Six Flags, RX is required and agrees
to have in place a "Substance Abuse Policy" for its employees. This policy must
include supervisor awareness training, testing for reasonable suspicion and
discipline guidelines to terminate employment with or without cause for
violation of this policy. Testing may not take place on Park property and a
third party administrator must be utilized.
(x) RX agrees to verify, at its sole cost and expense, the
references of RX's Employees, including without limitation, prior positions of
employment, education, criminal records, immigration status, and right to work
in the United States and use due diligence to determine if any of RX's Employees
have provided false information or omitted significant information with respect
to their backgrounds and/or prior employment.
(xi) RX represents and warrants that it shall not, to RX's
knowledge, employ any person to work in the Park who has a criminal history
without Six Flags' knowledge and approval with respect to said employment. RX's
knowledge, for the purpose described in the immediately preceding sentence, is
the knowledge that RX would have known had RX performed a reference check of the
type performed by Six Flags. RX acknowledges that great harm can be suffered by
Six Flags if a RX employee is discovered to have a criminal record that could
have been discovered with a criminal history background check of the type
performed by Six Flags with respect to all prospective employees of Six Flags.
The parties agree that it will be difficult to determine the damages suffered by
Six Flags in the event of RX's failure to undertake such background checks.
Accordingly, the parties agree that in the event RX employs an individual for
work in the Park for whom RX has not, prior to hiring such person, undertaken a
criminal history background check of the type performed by Six Flags, then RX
shall pay Six Flags liquidated damages of
RX Agreement Page 5 of l9
<PAGE>
$1,000.00 with respect to each such employee of RX regardless of whether the
background check would have revealed any evidence of criminal history.
(xii) At the request of Six Flags, RX shall make available to
Six Flags all information obtained with respect to its employees, including,
without limitation, criminal history background checks.
(xiii) RX agrees to terminate employment at the Park for any
RX Employee working in the Park who: (a) is subsequently discovered to have a
criminal history and, after being advised of the same, Six Flags does not
approve said employment, (b) fails to comply with Park rules or (c) made
material misstatements or omissions on their employment application. RX agrees
to indemnify Six Flags from and against any claims by RX's employees arising
from or related to such dismissals.
(xiv) Six Flags agrees that RX may offer RX's Employees
discounts on Park admission and merchandise at the Park that Six Flags offers
its employees in accordance with Park policy.
3. FACILITY.
A. Rights/Responsibilities
(i) In connection with RX's operation and management of the
Ride Photo Shop, Six Flags agrees that RX shall be entitled use of and/or access
to: (a) the facility to be constructed by RX, subject to the terms of this
Agreement, at which the Ride Photo Shop is operated (the "Facility"), (b)
adjacent portions of the Facility, as may be necessary for the operation and
maintenance of the Ride Photo Shop, and (c) common ways and areas within the
Park for incinerator or trash purposes, loading and unloading supplies and
installation, repair and maintenance of Equipment and/or other elements related
to the Ride Photo Shop. Nothwithstanding the foregoing, that RX shall not have
access to or be permitted to use that portion of the facility designed for
retail space to be operated by Six Flags ("Adjacent Six Flags Retail Space").
(ii) Six Flags will be responsible for heating, ventilation,
air conditioning, plumbing, electrical, in-park telephone expenses related to
the operation of the Ride Photo Shop in the Facility. Six Flags also agrees to
provide the following: (i) identification cards to enter the Park for RX's
Employees in the performance of their duties, (ii) RX's Employee access to the
Park employee parking areas on a first-come, first-serve basis to be used in the
performance of their duties, and (iii) Six Flags agrees to allow RX to have
supplies shipped to the Park's warehouse facility provided such supplies are
picked up within a 24 hour period of being received.
(iii) RX will be responsible for depositing all trash in Six
Flags' designated trash dumpsters and cleaning the facility.
RX Agreement Page 6 of l9
<PAGE>
B. Construction.
(i) RX shall, at its own expense, construct the facility,
including the Adjacent Six Flags Retail Space, subject to the terms of this
Agreement. Prior to the construction of the Facility in the Park at which the
Ride Photo Shop is operated, RX will submit its plans to the Park for approval.
These plans will include exterior and interior finishes as well as proposed
signage. RX will design the exterior and interior of the Facility and the
signage so that they will be consistent with the theme of the area of the Park
in which the Facility is located and Six Flags' design requirements policy (the
"Design Policy") (a copy of the Design Policy in effect as of the date hereof is
attached hereto and incorporated herein) as set forth on Exhibit D, as Six Flags
may amend from time to time upon notice to RX.
(ii) RX agrees to obtain all permits, consents, approvals and
clearances with respect to any construction contemplated hereunder and comply
with all laws, rules and regulations with respect thereto, including Six Flags
Maintenance Department rules, and shall secure Six Flags' prior approval with
respect to the following: (a) contractors, subcontractors, designers, architects
and materialmen who will perform work or services or supply materials in
connection with the construction of the Facility, (b) dates of commencement and
completion with respect to each phase of the construction of the Facility and
(c) agreements with all contractors, subcontractors, designers architects and
materialmen. RX shall only enter into construction agreements hereunder which
permit assignment to Six Flags and its affiliates. All construction hereunder
shall be made in a good and workmanlike manner.
(iii) Six Flags shall have the right, but not the obligation,
to test and inspect the construction of the Facility. RX agrees, at its sole
cost and expense, to remedy any problems with the Facility, upon Six Flags'
request, including without limiting the foregoing, problems associated with
defective design, engineering, workmanship, failure of factory construction,
materials or any component parts.
(iv) RX shall not place, maintain, or permit to be placed or
maintained on any exterior portion of the Facility or on the interior side of or
immediately adjacent to any glass door, wall or window of said Facility, or
otherwise display outside said Facility in the confines of the Park, any signs,
advertisements, lettering, trade, brand or service name, mark or logo, neon
lights, flood lights, colored lights, flashing lights or other exterior lighting
without prior written consent of Six Flags, which consent may be granted or
withheld in the absolute discretion of Six Flags. RX shall not use in, on or
about said Facility, or elsewhere in the Park, any sound producing or
reproduction equipment audible inside or outside said Facility, without the
prior written consent of Six Flags.
C. Alterations.
(i) RX agrees to make alterations, modifications, additions,
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improvements or updates, at its sole cost and expense (including any necessary
design and engineering expenses), to the Facility [and/or the Equipment (as
hereinafter defined)], as hereinafter defined (collectively, the "Alterations"),
as shall be mutually agreed to by the parties and in accordance with the Design
Policy as Six Flags may amend from time to time upon notice to RX; provided,
however, that RX shall be required to make Alterations if: (i) the Alterations
are reasonably required by Six Flags: (x) for safety, quality or financial
control reasons, or (y) if new technology and improvements are made to the same
type of Facility [and/or Equipment] in the industry; and/or (ii) required by any
applicable laws, rules or regulations. All such Alterations shall be made in a
good and workmanlike manner.
(ii) RX covenants that it will not make, or suffer or permit
to be made, any Alterations in, on, or to the Facility and/or the Equipment
without first: (a) notifying Six Flags in writing sufficiently in advance of the
commencement thereof to enable Six Flags to post or record or both, appropriate
and effective notices of non-responsibility, (b) obtaining the written consent
of Six Flags thereto, which consent Six Flags shall not unreasonably withhold
provided that the proposed Alterations are of high quality and in harmony with
the overall design and appearance of the Park, and necessary to operate the Ride
Photo Shop in a safe and efficient manner, (c) obtaining the written approval of
Six Flags as to all contractors, subcontractors, and materialmen who will
perform work or services or supply materials in connection therewith and (d)
obtaining the written consent of Six Flags with respect to the proposed
commencement and completion date of such Alterations.
D. Maintenance and Repair.
RX agrees to properly maintain and keep in good repair and
condition the Facility, at its sole cost and expense. The Facility shall be
maintained in keeping with the themeing and overall aesthetics of the Park. In
the event any portion of the Facility and/or the Equipment is inoperative or a
component thereof has failed or is defective, RX shall repair the same no later
than 24 hours of RX's knowledge of the same or, in the case of Equipment, RX
shall secure comparable equipment (the "Replacement Equipment") and deliver the
same to the Park until such time as the Equipment is repaired. Failure of RX to
comply with the provisions of this subsection shall constitute default
hereunder.
E. Relocation.
RX agrees that Six Flags shall have the right to relocate RX
to another Facility in the Park, for any reason, provided that Six Flags agrees
to exercise reasonable care to minimize interference in or to RX's operations.
F. Ownership.
(i) It is understood and agreed that the Facility and the
RX Agreement Page 8 of 19
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improvements thereto, whether made by RX or Six Flags hereunder, shall remain
the property of Six Flags including, without limitation, the trademarks and
other indicia of Six Flags, Including an Alternate Name (hereinafter defined)
("Six Flags Trademarks") and the trademarks of Six Flags' affiliates, including
Warner Bros. and DC Comics ("Affiliates' Trademarks")
(ii) It is further understood and agreed that the Equipment
(other than equipment in the adjacent Six Flags retail space), shall remain the
property of RX; provided, however, that if such Equipment has been paid for by
Six Flags, then such equipment shall remain the property of Six Flags. This
Section shall survive the termination of this Agreement.
G. Interference with Park/Parks' Operations.
RX understands that this Agreement may not be asserted to
affect or impede Six Flags' normal Park operations, including without
limitation, upgrading Park equipment, building and/or facilities, buying/selling
Park games or attractions, entering into agreements with other parties or
locating or changing other facilities, equipment, walkways or signage into or
surrounding the Facility, each without the consent of RX. RX shall have no
exclusive rights with respect to the sale and/or operation of concessions in the
Park similar in nature or type to the RX type Ride Photo Shop, during the term
of this Agreement.
4. EQUIPMENT.
A. Description.
RX agrees to provide, at its sole cost and expense, all
equipment, supplies, furnishings, displays, and other signage, cash registers,
credit card processing equipment and any other materials necessary to operate
the Ride Photo Shop (the "Equipment"). A general description of the Equipment is
set forth in Exhibit E, attached hereto and incorporated herein.
B. Delivery. Installation and Removal.
(i) RX agrees that it shall be responsible for the shipment,
installation and, promptly following the end of the Term, the removal, of the
Equipment, including parts therefor and/or Replacement Equipment (as hereinafter
defined), at its sole cost and expense. RX agrees that time is of the essence
with respect to this Agreement and the business of the Park is significantly
affected by RX's ability to have the Equipment installed and operating on
schedule and that the business, revenues and profits of the Park will be
affected in a materially adverse manner if the Equipment is not ready (in good
working order) for operation on the Commencement Date.
(ii) Six Flags shall have the right, but not the obligation,
to test
RX Agreement Page 9 of 19
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and inspect the Equipment and the installation and operation of the Equipment
during the Term. RX agrees, at its sole cost and expense, to remedy any problems
with the Equipment and installation thereof, upon Six Flags' request, including
without limiting the foregoing, problems associated with defective design,
engineering, workmanship, failure of factory construction, materials or any
component parts.
C. Additional Equipment.
RX agrees to install and/or supply additional Equipment, as
determined by mutual agreement of the parties, at no additional cost to Six
Flags.
5. PAYMENT TO RX.
A. Six Flags shall collect and record the receipts of the Ride Photo
Shop and Six Flags shall pay RX the following share of Net Revenues (as
hereinafter defined) during each operating season of the Term as follows:
Year RX's % of Net Revenue
2000 62%
B. "Net Revenue" means gross revenue of the Ride Photo Shop during
the applicable period less the sales tax paid or payable in respect thereto or
otherwise paid. RX agrees that Six Flags shall have the right to deduct the
following from RX's share of the Net Revenue: (ii) cash shortages, (iii) credit
card processing, and other transaction costs and charges, including charge backs
and fees related thereto, (iv) the cost associated with the damage or loss of
uniforms as set forth in more detail in Section 2 G (vi) hereof, and (v) the
cost of any bill or charge which is the basis or which may be the basis for a
lien against the Facility as set forth in more detail in Section 9 A (vii)
hereof.
C. RX's share of the Net Revenue will be calculated at the end of
the week. For payment purposes, a week shall be defined as the seven (7) day
period beginning Monday and ending on and including Sunday. Payments shall be
directed as set forth in this Agreement or as RX may otherwise direct in writing
and shall be payable twenty one (21) days from Six Flags' calculation thereof.
Six Flags shall have no further monetary liability or obligation to RX. Payments
shall be made to RX at the address indicated in the first paragraph of this
Agreement or otherwise as requested in writing by RX.
D. Notwithstanding Six Flags' deduction of sales tax from Net
Revenue, RX represents and warrants that all payments by Six Flags to RX of RX's
share of Net Revenue hereunder are exempt from any United States federal, state
and local taxes or other assessments, including any withholding taxes. RX shall
be solely responsible for, and shall pay when due, assessments arising from or
in connection with the receipt by RX of such Net Revenue.
RX Agreement Page 10 of 19
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6. AUDIT RIGHTS.
Until all claims and rights of Six Flags shall have been fully
ascertained, fixed and paid RX shall maintain, in accordance with generally
accepted accounting principles, separate and accurate records of the gross
receipts of the Ride Photo Shop at the Park showing in detail all business
transacted by RX. Six Flags shall have the right, at all reasonable times, to
examine and inspect such records as well as any other business records of RX
pertaining to the operation of the Ride Photo Shop. This Section shall survive
the termination of this Agreement.
7. CHANGE IN FINANCIAL CONDITION.
RX agrees to notify Six Flags promptly of any significant/material
change in its financial condition.
8. TRADEMARKS.
A. RX hereby grants Six Flags the exclusive royalty-free right and
license to use RX's trademarks, trade names, service marks, logos and symbols.
("RX's Trademarks") for the Term of the Agreement in connection with the Ride
Photo Shop in the Park. RX's Trademarks are and shall remain RX's sole and
exclusive property.
B. Six Flags reserves the right to create an alternate name and/or
logo (collectively, the "Alternate Name") for the Ride Photo Shop. Six Flags
shall own all right, title and interest in and to such Alternate Name, and all
goodwill with respect thereto shall inure to the benefit of Six Flags. RX agrees
that any Alternate Name shall be the exclusive property of Six Flags.
C. Six Flags' Trademarks are and shall remain the sole and exclusive
property of Six Flags, and Affiliates' Trademarks are and shall remain the sole
and exclusive property of Six Flags' affiliates, and RX shall not use nor permit
others to use Six Flags' Trademarks, including the Alternate Name, and
Affiliates' Trademarks for any purpose without the prior written consent of Six
Flags nor do anything which could in any way conflict with Six Flags' or its
affiliates' use or ownership of such trademarks.
9. REPRESENTATIONS AND WARRANTIES: ADDITIONAL COVENANTS.
A. RX represents and warrants that:
(i) RX is, and will during the term of this Agreement be,
solvent and able to meet its obligations hereunder as and when they become due;
(ii) RX shall not use, or suffer or permit any person or
persons
RX Agreement Page 11 of 19
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to use, the Equipment and/or Facility for any purpose other than as set forth
herein without the prior written consent of Six Flags, or in any unlawful manner
or for any unlawful purpose;
(iii) RX shall comply with, and use its best efforts to cause
its agents and employees to comply with all rules and regulations of the Park as
may be in effect from time to time. RX confirms that it has been provided with a
copy of the rules and regulations of the Park;
(iv) RX will not offer or provide any Goods/Services in or
from the Ride Photo Shop or elsewhere in the Park, without the prior express
written authorization of Six Flags. Any uncertainty with respect to the
Goods/Services which RX is authorized to offer or provide shall be resolved in
the manner which most limits and restricts RX's authority, and any reasonable
interpretation of such authority by Six Flags shall be binding upon RX;
(v) RX shall maintain, at its sole cost and expense during the
Term of this Agreement, a valid business license and any other necessary permits
or licenses and shall provide proof of same to Six Flags;
(vi) The Ride Photo Shop, including the Facility and the
Equipment with respect thereto, will be fit and safe for its intended commercial
use, shall be free from defects, shall comply with all applicable laws,
ordinances and regulations, including building, electrical and/or other codes,
and will meet the operation objectives set forth herein;
(vii) RX shall promptly pay all bills and charges relating to
the Ride Photo Shop in the Park, including any Alterations to the Equipment
and/or the Facility, and shall protect and indemnify Six Flags and the Park
against all such bills and charges and liens relating thereto. In the event that
RX desires to contest any bill or charge which is the basis or which may be the
basis for a lien against the Facility constituting the Ride Photo Shop or the
Park or both, RX shall, within five (5) days of notice therefor, obtain a bond
of, or deposit collateral with, a responsible corporate surety or depository to
protect against any such lien in the amount of any such bill estimated costs and
expenses, including without limitation, attorney's fees and interest. If RX
fails to post such bond or collateral within the aforementioned time period, Six
Flags may, without prejudice to any other right or remedy of Six Flags herein
have the option to: (a) pay any such claim, bill or charge on RX's behalf, and
RX shall reimburse Six Flags on demand for the amount of any such payment or (b)
have the right to set off the amount of said claim, bill or charge from the
portion of RX's Net Revenue due hereunder. Should any claim or lien be filed or
recorded affecting the Facility or the Park or both, or should any action
affecting the title thereto be commenced, RX shall give Six Flags written notice
thereof promptly after the same becomes known to RX, and RX shall thereafter
remedy the same with respect to the Facility or the Park or both;
RX Agreement Page 12 of 19
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(viii) RX's Trademarks, and/or any advertising, promotion or
publicity materials supplied Six Flags by RX hereunder will not violate,
infringe upon or give rise to any adverse claim with respect to any common law
or other right whatsoever, including, without limitation, any copyright,
trademark, service mark, right of privacy or publicity or contract right of any
party or violate any other law; and
(ix) Except as otherwise expressly permitted herein, RX shall
not have the right to use or permit the use of any of Six Flags' Trademarks,
including any depiction of the Park or Affiliates' Trademarks without Six Flags'
prior written consent identifying the use consented to, which consent may be
granted or withheld in the absolute discretion of Six Flags. This Section shall
survive the termination of the Agreement.
10. SUBCONTRACTORS.
Six Flags acknowledges that RX has the right to utilize
subcontractors (collectively, the "Subcontractors") to fulfill the obligations
set forth hereunder, subject to Six Flags' prior approval with respect thereto
and the work to be performed thereby. RX agrees that (i) the terms of the
agreement between RX and any Subcontractor will comply with all the terms of
this Agreement, including, without limitation, the provisions concerning
criminal background checks of persons working at the Park for or on behalf of RX
and the provisions concerning insurance, (ii) there will be no disruption in the
operation of the Ride Photo Shop whatsoever (even in the event of replacement of
the Subcontractors), and (iii) RX shall not cause or permit any liens, claims or
encumbrances to be placed on or with respect to the Equipment, Facility, Park or
any other property of Six Flags or RX which is the subject of this Agreement.
11. ASSIGNMENT.
The obligations of RX herein are personal in nature and this
Agreement and the obligations of RX hereunder shall not be assigned or otherwise
transferred by RX, in whole or in part, to any third party without the prior
written consent of Six Flags. Six Flags may assign this Agreement to any
affiliate of Six Flags. For purposes of this Agreement, the term "assigned" or
"assignment" shall include, without limitation, a consolidation or merger of RX
with or into another party, a reorganization or a sale of all or substantially
all of the assets of RX to another party, and/or transfer of a controlling
interest in RX's business in or to another party.
12. INDEMNITY.
RX covenants that it will protect, defend, hold harmless and
indemnify Six Flags, its directors, officers, employees, agents, subsidiaries,
affiliates, partners and parent companies from and against any and all expenses,
claims, actions, liabilities, attorney's fees and costs, damages and losses of
any kind or nature whatsoever (including, without limitation of the foregoing,
death of or injury to
RX Agreement Page l3 of 19
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persons and damage to property), actually or allegedly resulting from or
connected with the operation of the Ride Photo Shop (including, without
limitation of the foregoing, goods sold, work done, services rendered or
products utilized therein, advertising and promotion therefor, lack of repair in
or about the area occupied or arising out of any actual or alleged infringement
of any patent or claim of patent, copyright, trademark, service mark, or trade
name) or from the omission or commission of any act, lawful or unlawful, or
breach of this Agreement by RX or its agents or employees, whether or not such
act is within the scope of the employment of such agents or employees and not
due to the negligence or willful misconduct of Six Flags or its employees and
agents. This Section shall survive the termination of the Agreement.
13. INSURANCE.
A. To insure RX's performance of the obligations and warranties as
set forth herein, but not by way of limitation, RX agrees, at its expense, to
procure and maintain Comprehensive General Liability against claims for bodily
injury, personal injury or death and property damage, Contractual Liability,
Products Liability, Automobile Liability against claims for bodily injury,
personal injury or death and property damage, and Worker's Compensation
Insurance, including an employer liability endorsement (collectively, the
"Insurance") each covering claims occurring upon, in or about the Park, and on,
in or about the adjoining streets, sidewalks and passageways and identifying
this Agreement, the Park and Six Flags Theme Parks Inc. as being named as
additional insured on the Insurance policies described herein, including any
renewals of such Insurance. The Insurance shall apply separately to each insured
against whom a claim is made or suit is brought. The Insurance shall remain in
full force and effect for the Term of this Agreement and one (1) year
thereafter, and all such Insurance shall include a waiver of subrogation against
Six Flags. This Section shall survive the termination of the Agreement.
B. The Insurance shall be written by a company rated "A" or better
by Best Insurance Reports, or by such other company consented to in writing by
Six Flags. The policy of Insurance will provide, inter alia, for thirty (30)
days advance notice to Six Flags and RX of any proposed policy modification or
cancellation. Upon any cancellation and/or modification of any Insurance policy
required hereby, and prior to the effective date thereof, RX shall deliver
replacement insurance to Six Flags. RX shall forward the Certificate of
Insurance form attached hereto and incorporated herein as Exhibit F to its
insurer for execution and transmit such executed Certificate to Six Flags
promptly after execution of this Agreement, and RX shall also supply Six Flags
with its official Certificate of Insurance promptly after execution of this
Agreement for its records.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out of
a single occurrence and $3,000,000 for all claims in the aggregate.
RX Agreement Page l4 of 19
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D. All Insurance policies required to be maintained shall be primary
and shall not require contribution from any coverage maintained by Six Flags,
and shall not contain, without Six Flags' prior written consent, any special or
non-customary exclusions.
E. RX shall further, upon request, furnish Six Flags with a
certificate from RX's insurance carrier certifying that RX has obtained Worker's
Compensation insurance upon its employees, or an opinion of counsel satisfactory
to Six Flags that such coverage is not required.
F. RX understands that Six Flags' rights and RX's obligations
hereunder shall not be limited or affected by the provisions of this Section 13.
14. BREACH.
In the event of breach of any provision of this Agreement by RX or
in the event RX should become insolvent, file a voluntary petition in
bankruptcy, have a receiver, liquidator or trustee in bankruptcy appointed over
its affairs, have a significant material adverse change in its financial
condition, and notwithstanding Six Flags' right to receive liquidated damages
hereunder, in lieu thereof, Six Flags may, at its option, then or at any time
thereafter while said breach continues, upon fifteen (15) days prior written
notice to RX, terminate this Agreement and the license and privileges granted
hereby and be relieved of all further obligation hereunder arising after the
date of termination. In the event of termination hereunder, RX shall then quit
and surrender the premises as set forth in this Agreement and the license and
privileges granted hereby shall then terminate; provided, however, that RX shall
remain liable for all obligations under this Agreement, and Six Flags may, in
addition to any remedy herein provided, recover from RX any damages to which it
may be entitled in law or equity. This Section shall survive the termination of
this Agreement.
15. NOTICES.
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To Six Flags: Six Flags Magic Mountain
26101 Magic Mountain Parkway
Valencia, CA. 91355
Attn: Director, Retail Dept.
Fax: (805)255-4789
copy to: Premier Parks
122 East 42nd Street 49th Floor
New York, NY 10168
RX Agreement Page 15 of 19
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Attn: General Counsel
Fax: (212) 949-6203
To RX: RX Technology, Inc.
2264 7th Street
Mandeville, LA. 70471
Attn: D. Rex Gay
Fax: 504-727-9815
or to such other addresses as the parties may direct by written notice given as
hereinabove provided. Notice shall be deemed given when received as evidenced by
the return receipt or the date such notice is first refused, if that be the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
16. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, RX may,
subject to any indebtedness of RX to Six Flags, promptly remove RX's Equipment
from the Park, except that Six Flags' Trademarks or Six Flags' Affiliates'
Trademarks shall be removed from the Equipment and remain at the Park, and RX
shall quit and surrender the Ride Photo Shop in the Park in good condition,
reasonable wear and tear excepted. Unless the parties otherwise agree, if RX
fails to remove the Equipment from the Park within five (5) days after
termination of this Agreement, then RX shall be deemed to have abandoned such
property and title to the same shall at that time vest in Six Flags. Any costs
and expenses incurred by Six Flags in removing such abandoned property
(including the reasonable value of the services rendered by Park employees in
connection therewith) shall be paid to Six Flags by RX promptly following demand
therefor. This Section shall survive the termination of this Agreement.
17. GOVERNING LAW.
A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State of
California (the "Specified State") and that the laws of the Specified State
shall govern the construction, interpretation and enforceability of this
Agreement. Should any dispute arise in connection with the construction,
interpretation, performance or enforcement of the provisions of this Agreement,
Each of the parties hereto agree that any such action shall be brought only in
the courts located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the
RX Agreement Page l6 of l9
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relationship of the parties hereto, (ii) agree that any such action, suit or
proceeding shall be brought in any state or federal court of competent
jurisdiction sitting in the federal court district in the Specified State, (iii)
submits to the jurisdiction of such courts and (iv) to the fullest extent
permitted by law, agree that it will not bring any action, suit or proceeding in
any forum other than as provided herein (but nothing herein shall affect the
right of the Six Flags to bring any action, suit or proceeding in any other
forum to the extent necessary to enforce its rights under this Agreement).
18. RELATIONSHIP OF THE PARTIES.
RX is an independent contractor. Nothing contained in or done
pursuant to this Agreement shall be construed as creating a partnership, agency,
joint employer, joint venture or landlord-tenant relationship. Except as
otherwise expressly provided in this Agreement, no party shall become bound,
with respect to third parties, by any representation, act or omission of the
other.
19. FORCE MAJEURE.
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God. In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
20. PUBLICITY.
A. Six Flags shall, at its discretion, develop, direct and produce
any and all advertising and promotion in connection with the Ride Photo Shop in
the Park for the purposes of advertising, promoting, publicizing and
merchandising the Ride Photo Shop in the Park. RX agrees to cooperate, as
necessary, when requested to provide any advertising or promotion with respect
to the Ride Photo Shop.
B. Six Flags shall have the right to use RX's Trademarks and the
names of any person or entity rendering services on or associated with the Ride
Photo Shop, as well as any such person or entity's biography, photographic or
non-photographic likeness and recorded voice.
C. RX shall not have the right to have or cause to have sponsors
with respect to the Ride Photo Shop without the prior written approval of Six
Flags.
D. RX agrees that Six Flags may obtain sponsors for the Ride Photo
Shop which may include affixing signage in or around the Ride Photo Shop, and
any proceeds Six Flags derives in connection therewith shall be solely that of
Six Flags.
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21. PROPRIETARY INFORMATION.
RX agrees that this Agreement and all information regarding the
business operations, policies and practices of Six Flags ("Proprietary
Information") acquired or learned in connection with the activities conducted
under this Agreement shall be deemed confidential and shall be kept in strict
confidence under appropriate safeguards. The term Proprietary Information, as
used herein, does not include any information that is or becomes generally
available to the public other than as a result of disclosure in violation of
this Agreement. This Section shall survive the termination of the Agreement.
22. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
23. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules hereto)
constitutes the entire agreement between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
agreements and undertakings of the parties pertaining to the subject matter
hereof. This Agreement may not be modified except by written instrument duly
executed by the parties hereto.
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IN WITNESS WHEREOF, this License Agreement has been duly executed by the
parties hereto on the day and year first hereinabove written.
SIX FLAGS MAGIC MOUNTAIN,
a division of Six Flags Theme Parks Inc.
By: /s/ Del Holland
------------------------------------
Del Holland
Vice President, General Manager
RX TECHNOLOGIES
By: /s/ Donald Rex Gay
------------------------------------
D. Rex Gay
President
RX Agreement Page 19 of 19
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Exhibit A
Location
Locations shall be determined by Six Flags in its sole discretion and may
be changed from time to time in the reasonable discretion of Six Flags.
RX SHALL OPERATE THE RIDE PHOTO SHOPS AT THE FOLLOWING LOCATIONS:
1. Riddler's Revenge Roller Coaster
2. Batman the Ride Roller Coaster
3. Children's Roller Coaster in Bugs Bunny World
4. Goliath Ride Roller Coaster
RX Agreement
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) RX shall comply with Six Flags' credit card
procedures (the "Credit Card Procedures") (a list of the Credit Card Procedures
in effect as of the date hereof is attached hereto and is incorporated herein),
as Six Flags may amend them from time to time upon notice to RX, with respect to
acceptance of Credit Cards as payment for any Goods/Services.
(ii) RX agrees that it shall not: (A) discriminate in
favor of any Credit Card accepted for payment over another, (B) require a
minimum transaction amount or impose a surcharge as a condition for honoring
Credit Cards, (c) impose a requirement on Credit Card holders to provide any
personal information as a condition for honoring Credit Cards unless otherwise
required by the Credit Card Procedures, (D) make or require a photocopy of a
Credit Card, (E) make a Credit Card sale where only part of the consideration
due is paid by use of such Credit Card, or (F) accept a Credit Card for any
purpose which is prohibited by the Credit Card Procedures.
(iii) RX shall not make a Credit Card sale to any person
if: (A) the Credit Card being presented has expired according to the expiration
date shown on such Credit Card, (B) the sale has been declined for
authorization, (c) RX has reasonable grounds to believe the Credit Card being
presented is counterfeit, fraudulent or stolen, or (D) the signature on the
Credit Card does not appear to be the same as the signature on the sales draft
or the spelling of the signature on the sales draft is different from the
spelling of the name on the Credit Card. RX shall use reasonable efforts to
retrieve any credit card from the customer when instructed by a service provider
in response to an authorization or other inquiry.
(iv) RX agrees to display symbols of the Credit Cards,
supplied by Six Flags hereunder, at its Facility in the Park to effectively
inform customers of the Park that the Credit Cards are honored by RX.
(b) Returns and Adjustments.
(i) All disputes between RX and any Credit Card holder
respecting any Credit Card transaction hereunder shall be settled between RX and
such Credit Card holder. RX agrees that in the event of a Credit Card dispute,
RX
RX Agreement
<PAGE>
shall reasonably address the Credit Card holder's concern in a good faith
manner.
(ii) RX shall maintain a fair and consistent policy for
exchange and return of Goods/Services and for the adjustment of amounts due on
Credit Card transactions and such policy shall be the same as available to cash
customers. RX shall make no cash refunds or payments to Credit Card holders for
returns or adjustments on Credit Card sales.
(iii) When a refund or payment is due to a Credit Card
holder for return or adjustment, RX shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible credit adjustment memo on
a form provided or approved by Six Flags and deliver to the Credit Card holder a
copy of the completed form. Each credit adjustment memo shall be imprinted with
or contain the following: (A) Six Flags' name and merchant account number, (B)
city and address where the credit or adjustment occurred, (C) Credit Card
holder's name and Credit Card number, (D) Credit Card expiration date, (E) the
date of the return or adjustment and the date of the initial transaction, if
available, (F) the amount of the credit, and (vii) a brief description of the
Goods/Services returned.]
(iv) With respect to each credit adjustment memo
presented to Six Flags and/or transmitted hereunder, RX represents and warrants
that: (A) the credit adjustment memo represents an amount lawfully due to a
Credit Card holder for the return or adjustment of Goods/Services previously
purchased with the Credit Card, (B) a sales draft relating to and including the
amount of the credit memo was previously presented to Six Flags and/or
transmitted hereunder, (C) the credit adjustment memo does not duplicate
information concerning the same transaction in any other credit slip unless Six
Flags requests a resubmission, (D) the signature appearing on the credit
adjustment memo is that of an authorized employee of RX, and (E) RX has complied
fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX fails to comply with the Credit Card
Procedures or the terms of this Exhibit C for a given Credit Card transaction
and said sales draft is returned to Six Flags, or in the event Goods/Services
are returned by the customer that paid by Credit Card, or in the event
Goods/Services are not received by customer or any defense or problem is made or
presented by customer questioning the validity or authorization of the
transaction, RX agrees that Six Flags may, in its sole discretion: (i) deduct
the amount of said Credit Card transaction from RX's share of the revenue from
the Ride Photo Shop due and owing RX, if any, or (ii) bill RX in the amount of
said Credit Card transaction, and RX shall pay Six Flags the same within five
(5) days of receipt therefor, or (iii) demand payment from RX in the amount of
said Credit Card transaction and RX shall pay Six Flags immediately upon its
receipt of Six Flags' demand. Failure of RX to pay Six Flags as set forth herein
for any outstanding Credit Card transactions shall constitute a breach of the
Agreement.
RX Agreement
<PAGE>
(d) Termination of Acceptance.
In the event Six Flags' agreement with respect to the
Credit Cards terminates or Six Flags, in its sole discretion, determines that it
does not want RX to accept Credit Cards as payment for Goods/Services hereunder,
RX agrees to discontinue acceptance of Credit Cards and remove the Credit Card
symbols from the Facility upon notification by Six Flags.
2. CASH.
(a) Acceptance.
RX represents and warrants that it shall cause all cash
received by or on RX's behalf for sale of Goods/Services hereunder to be rung in
the cash register or other Six Flags approved cash collection equipment and
deposited in such cash register or other equipment at the time of sale. RX
agrees that it shall not accept cash for a mail or telephone order transaction.
(b) Returns and Adjustments.
(i) All disputes between RX and any customer respecting
any cash transaction hereunder shall be settled between RX and such customer. RX
agrees that in the event of a dispute, RX shall reasonably address the
customer's concern in a good faith manner.
(ii) RX shall maintain a fair and consistent policy for
exchange and return of merchandise and for the adjustment of amounts due on cash
transactions and such policy shall be the same as available to credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX shall prepare, execute and deliver to Six Flags or
cause to be delivered to be delivered to Six Flags a legible authorized refund
slip.
(iv) With respect to each legible authorized refund slip
presented to Six Flags hereunder, RX represents and warrants that (A) the refund
slip represents an amount lawfully due customer for the return or adjustment of
Goods/Services previously purchased in cash, (B) a sales draft relating to and
including the amount of the refund was previously presented to Six Flags and/or
transmitted hereunder, (C) the refund slip does not duplicate information
concerning the same transaction in any other refund unless Six Flags requests a
resubmission, (D) the signature appearing on the refund slip is that of RX, and
(E) RX has complied fully with the terms of this Agreement.
(v) RX agrees that in the event Goods/Services hereunder
are returned on a day that said Goods/Services were not purchased, Six Flags
may, in its sole discretion: (A) deduct the amount of said return from RX's
RX Agreement
<PAGE>
share of the revenue from the Ride Photo Shop due and owing RX, if any; (B) bill
RX in the amount of said return and RX shall pay Six Flags the same within five
(5) days of receipt therefor or (C) demand payment from RX in said amount and RX
shall pay Six Flags immediately upon receipt of Six Flags' demand. Failure of RX
to pay Six Flags as set forth herein for any amount outstanding shall constitute
a breach of the Agreement.
Credit Card Procedures
RX represents and warrants that it shall follow the following Credit Card
Procedures, as may be amended from time to time by Six Flags upon notice to RX:
1. Each Credit Card sale shall be evidenced by a legible sales draft
(the "Draft") on a form approved by Six Flags, indicating the full amount due
for Goods/Services sold hereunder.
2. Each Draft shall be imprinted by RX, or show evidence of the
electronic equivalent obtained through use of a terminal which reads the
magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) Six Flags'
name and merchant account number, (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including the
account number, name and expiration date of the Credit Card, (iv) the date the
transaction takes place and the price of the Goods/Services, (v) total amount of
the transaction, including all applicable taxes, (vi) description of
Goods/Services, and (vii) signature of the Credit Card holder.
4. RX shall compare the signature on the Draft with the signature on
the Credit Card to ascertain that they are the same, and if the Credit Card has
a photograph of the Credit Card holder, verify that the Credit Card holder and
the person presenting the Credit Card appear to be the same person. If RX
believes there is a discrepancy in the signature or if the photographic
identification is uncertain, RX shall contact the service provider for
instructions.
5. If the signature panel on the Credit Card is blank, RX shall do
the following: (i) review positive identification to determine that the user is
the Credit Card holder; such identification must consist of a current official
government identification document (such as a passport or driver's license) that
bears the Credit Card holder's signature, (ii) indicate such positive
identification (including any serial number and expiration date) on the Draft
and (iii) require the Credit Card holder to sign the signature panel of the
Credit Card prior to completing the transaction.
6. On mail and telephone order sales, if any, RX shall print on the
Draft the information required in Paragraph 3 of these Credit Card Procedures
and, in addition, the following: (i) the customer's name and account number,
(ii) whether the order was placed by mail (M.O.) or telephone (T.O.), and (iii)
whether or not
RX Agreement
<PAGE>
authorization is obtained. With respect to mail and telephone order sales, RX
does not need to secure the Credit Card holder's signature or Credit Card
imprint. RX understands that telephone and mail order transactions are permitted
at RX's risk; namely, that any defense or problem raised by a customer
questioning validity or authorization of the transaction may be made.
7. For each Credit Card sale, RX shall deliver or cause to be
delivered a copy of the completed sales draft to the customer, evidencing the
full amount due for the Goods/Services.
8. RX shall not complete a sales transaction without first obtaining
an authorization from the designated service provider for the total amount of
the transaction. RX shall print legibly on the Draft the authorization/approval
code, evidencing any authorization so obtained.
RX Agreement
<PAGE>
Exhibit C
Employees
RX`s Employees shall include the following:
No. of Employees Title Function Location
- ---------------- ----- -------- --------
RX Agreement
<PAGE>
Exhibit D
LESSEE
AND
CONSULTANT
DESIGN GUIDELINES
Kevin P. Barbee, AIA
January 9, 1994
RX Agreement
<PAGE>
Exhibit E
Equipment
Quantity Description [Year/Brand/Item/Special Features] Improvements
- -------- ---------------------------------------------- ------------
RX Agreement
<PAGE>
Exhibit 10.9
Six Flags Magic Mountain
Goliath
<PAGE>
RX TECHNOLOGY, INC.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made as of this 1st day of January, 2000, by and
between SIX FLAGS MAGIC MOUNTAIN, a division of Six Flags Theme Parks Inc., a
Delaware corporation, having offices at 26101 Magic Mountain Parkway, Valencia,
CA. 91355 ("Six Flags"), and RX TECHNOLOGY, INC., having offices at 2264 7th
Street, Mandeville, LA. 70471 ("RX")
WITNESSETH
WHEREAS, Six Flags owns, operates or manages the theme amusement facility
which is open to the general public and known as Six Flags Magic Mountain in
Valencia, CA. (the "Park").
WHEREAS, RX desires to construct and operate a retail ride photo
concession known as RX Technology, Inc. (the "Ride Photo Shop") to ell
photographs of persons riding the Riddler Ride, the Batman Ride, the Goliath
ride, and the Children's coaster ride in the Park as set forth herein;
WHEREAS, Six Flags desires to grant RX a license to operate the Ride Photo
Shop in the Park, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, Six Flags and RX agree as follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX a license to construct a facility, subject to the provisions
of this Agreement, from which to operate, and to operate the Ride Photo Shop in
the Park in such locations of the Park as is set forth on Exhibit A hereto
during the period of time commencing January 1st, 2000 (the "Commencement Date")
and terminating at the end of the Park's 2000 operating season on December 31st,
2000 (the "Termination Date").
2. OPERATION.
A. Hours of Operation.
RX agrees to operate the Ride Photo Shop during the hours and
days, including Sundays and holidays, that the Park is open for business in
accordance with schedules prepared by Six Flags which Six Flags may modify at
Six
<PAGE>
Flags' sole discretion at any time on twenty-four (24) hours notice to RX and
such additional hours as are required by Six Flags. RX acknowledges that Six
Flags will suffer great harm if RX breaches the agreement set forth in this
subsection, the amount of which would be difficult to determine. Therefore, RX
agrees to pay Six Flags liquidated damages of $50.00 for each Park operating day
that RX opens the Ride Photo Shop thirty (30) minutes after the opening time of
the Park's RX Ride Location Operating Hours and/or closes the Ride Photo Shop
thirty (30) minutes before the closing time of the Park's RX Ride Location
Operating Hours, upon notice thereof by Six Flags and such liquidated damages
amount shall be increased an additional $50.00 for each successive violation of
Park RX Ride Location Operating Hours, upon notice thereof by Six Flags, up to a
maximum liquidated damages amount of $500.00.
B. Approval of Goods/Services.
RX agrees to submit samples of all merchandise for sale to
customers in the Park in connection with the Ride Photo Shop, for Six Flags'
approval in advance of sale of the same. RX agrees to make such changes to the
merchandise, at its sole cost and expense, as Six Flags shall reasonably
determine. RX also agrees to coordinate with the Park in coding each of RX's
Goods/Services and inputting the same in the cash register for tracking
purposes. To the extent requested by Six Flags, RX shall comply with Six Flags'
point of sale and other information systems requirements.
C. Price of Goods/Services.
(i) RX agrees to submit to Six Flags for its review and
approval, a retail price list of all RX's Merchandise for sale to customers of
the Park (the "Approved Price List") at least two (2) weeks prior to
Commencement Date or any proposed change in any previously approved price list.
RX agrees to make changes to the Approved Price List as Six Flags shall
reasonably request. RX shall be responsible for all costs and expenses
associated with production and printing of the Price List and any changes
thereto, and such costs shall not be deducted from Net Revenue (as hereinafter
defined).
(ii) RX agrees to make changes to the Approved Price List (the
"Revised Price List") at any time during the Term if Six Flags determines, in
its sole discretion that an adjustment is appropriate. RX shall be responsible
for all costs and expenses associated with production and printing of the
Revised Price List, and such costs shall not be deducted from Net Revenue (as
hereinafter defined).
(iii) RX agrees that it shall not make its Goods/Services
available to any party free of charge or at a discounted price unless RX is
engaging in sampling activities approved by Six Flags, etc. Notwithstanding the
foregoing, RX agrees to offer such discounts on its Goods/Services as Six Flags
shall require and as Six Flags shall offer in locations owned by Six Flags. RX
shall, at all times, charge
RX Agreement Page 2 of 19
<PAGE>
customers, including without limitation, family members, employees and business
associates, the price set forth on the Approved Price List for its
Goods/Services except as otherwise expressly set forth herein.
D. Methods of Sale; Payment and Return Policies.
(i) The Goods/Services shall be available for sale to
customers of the Park at point of purchase.
(ii) The following forms of payment for RX's Goods/Services
will be accepted: MasterCard, Visa, American Express and Discover credit cards
(collectively, the "Credit Cards"), and cash (each, a "Form of Payment"). Six
Flags may, in its sole discretion, discontinue and, if applicable, require RX to
discontinue any Form of Payment for Goods/Services sold hereunder. Conversely,
Six Flags may, in its sole discretion, require RX to accept such additional
forms of payment as may be accepted by Six Flags in the future; and in so doing,
RX agrees to submit to such reasonable rules/restrictions with respect thereto.
Payment for the Goods/Services shall be in accordance with the provisions of
Exhibit B - Payment/Return Agreement, which is attached hereto and incorporated
herein.
E. Reports and Records.
(i) Upon commencement of RX's daily operations, RX shall pick
up a cash till from the Park's cash control facility, and within one (1) hour
after the close of each Park day, RX shall deliver to the Park's cash control
facility the following: (a) remaining cash till, (b) a daily report of the day's
operations on Six Flags' "Daily Sales Report" form, and (c) the day's daily
gross receipts, including without limitation credit card sales drafts, credit
memos and all other materials evidencing sales transactions during such day
(collectively, the "Deposits"). Such Deposits are received subject to audit by
Six Flags as set forth herein and Six Flags may correct and credit or debit RX
for any inaccuracies or errors in RX's computation of Deposits. Six Flags may
refuse to accept or revoke acceptance of any Deposits, including any sales
drafts or credit adjustments, which are illegible or which fail to comply with
the terms of this Agreement, including, but not limited to, any federal or state
law.
(ii) RX shall retain copies of sales drafts and other
materials evidencing sales transactions related to sale of Goods/Services for a
period of one (1) year from date of transaction. This Section shall survive the
termination of the Agreement.
F. Compliance with Laws.
RX agrees that at all times during the Term it shall be in
compliance with all laws, rules and regulations with respect to operation of the
Ride Photo Shop in the Park, including, without limitation, all environmental
and employment laws, rules and regulations. RX Agrees that it shall be
responsible for
RX Agreement Page 3 of 19
<PAGE>
obtaining, at its sole cost and expense, all licensing and/or permits required
in connection with operation of the Ride Photo Shop in the Park.
G. Employees.
(i) RX acknowledges that it has no authority to employ persons
on behalf of Six Flags, and no employees or agents of RX shall be deemed to be
agents or employees of Six Flags.
(ii) Without Six Flags' prior written consent, RX shall not,
until after the second anniversary of the end of the Term, solicit for the
purpose of hiring or employ, directly or indirectly, any employee employed by,
or independent contractor engaging in business with, Six Flags, in each case,
during the Term. This subsection of the Agreement shall survive until the second
anniversary of the end of the Term.
(iii) RX and Managers of RX's Ride Photo Shop, must be trained
completely in the areas of labor law, wage and hour law, and regulations
regarding the employment of minors. It shall be the responsibility of RX to seek
and obtain outside agencies to provide this training.
(iv) RX shall develop their own employee handbook, which
handbook shall include Park rules, regulations, and work guidelines. Six Flags
shall provide such specific rules, regulations and work guidelines to RX. In
addition, RX's own statements regarding harassment, drug testing policies, fair
employment practices, and safety standards, etc., shall be included in RX's
employee handbook.
(v) RX represents and warrants that it shall, at its sole cost
and expense, recruit, train, supervise and furnish the services of at least one
(1) person to operate the Ride Photo Shop, and perform services in connection
with the Ride Photo Shop as set forth in Exhibit C attached hereto and
incorporated herein ("RX's Employees") during Operating Hours. RX acknowledges
that Six Flags will suffer great harm if RX breaches the agreement set forth in
this subclause, the amount of which would be difficult to determine. Therefore,
RX agrees to pay Six Flags liquidated damages of $250.00 for each Park operating
day that RX fails to furnish the services of one (1) trained person to operate
the Ride Photo Shop.
(vi) Six Flags shall provide RX with a list of approved
vendors where RX may purchase, at RX's expense, Park approved uniforms for use
by RX employees. RX agrees that all such uniforms are to be worn by RX
employees, at the proper length and in the proper size for each employee. RX
and/or employees of RX, are responsible for the care and laundering of RX
uniforms. Wardrobe facilities and/or lockers are not available for RX employees
to change into and out of Park uniforms. Employees of RX are expected to report
to their work location, dressed in the proper Park attire with uniforms clean
and neat, in order to present a well groomed appearance to Park guests. In RX's
absence, Six Flags reserves the right to dismiss
RX Agreement Page 4 of 19
<PAGE>
for the day, any RX employee Six Flags deems is not dressed in a presentable
manner or is groomed in such a manner as to negatively affect Park guests.
Should such dismissal be necessary and result in the closure of RX's Ride Photo
Shop, RX shall be responsible to pay Six Flags liquidated damages as stated in
Paragraph G, section (v) of this Agreement.
(vii) RX shall be fully responsible for all RX's Employees,
including without limitation, responsibility for all salaries and other
compensation, withholding taxes, worker's compensation insurance, and other
required payments in connection with such employees and shall be in compliance
with all laws, rules and regulations with respect thereto.
(viii) Each prospective employee of RX shall complete an
employment application, the form of which must be approved by Six Flags prior to
beginning work in the Park. In addition, each employee hired by RX to work in
the Park, must attend a Licensee Orientation as provided by Six Flags, prior to
beginning work in the Park.
(ix) It is the intention of Six Flags to maintain a drug and
alcohol free environment. As a Licensee of Six Flags, RX is required and agrees
to have in place a "Substance Abuse Policy" for its employees. This policy must
include supervisor awareness training, testing for reasonable suspicion and
discipline guidelines to terminate employment with or without cause for
violation of this policy. Testing may not take place on Park property and a
third party administrator must be utilized.
(x) RX agrees to verify, at its sole cost and expense, the
references of RX's Employees, including without limitation, prior positions of
employment, education, criminal records, immigration status, and right to work
in the United States and use due diligence to determine if any of RX's Employees
have provided false information or omitted significant information with respect
to their backgrounds and/or prior employment.
(xi) RX represents and warrants that it shall not, to RX's
knowledge, employ any person to work in the Park who has a criminal history
without Six Flags' knowledge and approval with respect to said employment. RX's
knowledge, for the purpose described in the immediately preceding sentence, is
the knowledge that RX would have known had RX performed a reference check of the
type performed by Six Flags. RX acknowledges that great harm can be suffered by
Six Flags if a RX employee is discovered to have a criminal record that could
have been discovered with a criminal history background check of the type
performed by Six Flags with respect to all prospective employees of Six Flags.
The parties agree that it will be difficult to determine the damages suffered by
Six Flags in the event of RX's failure to undertake such background checks.
Accordingly, the parties agree that in the event RX employs an individual for
work in the Park for whom RX has not, prior to hiring such person, undertaken a
criminal history background check of the type performed by Six Flags, then RX
shall pay Six Flags liquidated damages of
RX Agreement Page 5 of 19
<PAGE>
$1,000.00 with respect to each such employee of RX regardless of whether the
background check would have revealed any evidence of criminal history.
(xii) At the request of Six Flags, RX shall make available to
Six Flags all information obtained with respect to its employees, including,
without limitation, criminal history background checks.
(xiii) RX agrees to terminate employment at the Park for any
RX Employee working in the Park who: (a) is subsequently discovered to have a
criminal history and, after being advised of the same, Six Flags does not
approve said employment, (b) fails to comply with Park rules or (c) made
material misstatements or omissions on their employment application. RX agrees
to indemnify Six Flags from and against any claims by RX's employees arising
from or related to such dismissals.
(xiv) Six Flags agrees that RX may offer RX's Employees
discounts on Park admission and merchandise at the Park that Six Flags offers
its employees in accordance with Park policy.
3. FACILITY.
A. Rights/Responsibilities.
(i) In connection with RX's operation and management of the
Ride Photo Shop, Six Flags agrees that RX shall be entitled use of and/or access
to: (a) the facility to be constructed by RX, subject to the terms of this
Agreement, at which the Ride Photo Shop is operated (the "Facility"), (b)
adjacent portions of the Facility, as may be necessary for the operation and
maintenance of the Ride Photo Shop, and (c) common ways and areas within the
Park for incinerator or trash purposes, loading and unloading supplies and
installation, repair and maintenance of Equipment and/or other elements related
to the Ride Photo Shop. Nothwithstanding the foregoing, that RX shall not have
access to or be permitted to use that portion of the facility designed for
retail space to be operated by Six Flags ("Adjacent Six Flags Retail Space").
(ii) Six Flags will be responsible for heating, ventilation,
air conditioning, plumbing, electrical, in-park telephone expenses related to
the operation of the Ride Photo Shop in the Facility. Six Flags also agrees to
provide the following: (i) identification cards to enter the Park for RX's
Employees in the performance of their duties, (ii) RX's Employee access to the
Park employee parking areas on a first-come, first-serve basis to be used in the
performance of their duties, and (iii) Six Flags agrees to allow RX to have
supplies shipped to the Park's warehouse facility provided such supplies are
picked up within a 24 hour period of being received.
(iii) RX will be responsible for depositing all trash in Six
Flags' designated trash dumpsters and cleaning the facility.
RX Agreement Page 6 of 19
<PAGE>
B. Construction.
(i) RX shall, at its own expense, construct the facility,
including the Adjacent Six Flags Retail Space, subject to the terms of this
Agreement. Prior to the construction of the Facility in the Park at which the
Ride Photo Shop is operated, RX will submit its plans to the Park for approval.
These plans will include exterior and interior finishes as well as proposed
signage. RX will design the exterior and interior of the Facility and the
signage so that they will be consistent with the theme of the area of the Park
in which the Facility is located and Six Flags' design requirements policy (the
"Design Policy") (a copy of the Design Policy in effect as of the date hereof is
attached hereto and incorporated herein) as set forth on Exhibit D, as Six Flags
may amend from time to time upon notice to RX.
(ii) RX agrees to obtain all permits, consents, approvals and
clearances with respect to any construction contemplated hereunder and comply
with all laws, rules and regulations with respect thereto, including Six Flags
Maintenance Department rules, and shall secure Six Flags' prior approval with
respect to the following: (a) contractors, subcontractors, designers, architects
and materialmen who will perform work or services or supply materials in
connection with the construction of the Facility, (b) dates of commencement and
completion with respect to each phase of the construction of the Facility and
(c) agreements with all contractors, subcontractors, designers architects and
materialmen. RX shall only enter into construction agreements hereunder which
permit assignment to Six Flags and its affiliates. All construction hereunder
shall be made in a good and workmanlike manner.
(iii) Six Flags shall have the right, but not the obligation,
to test and inspect the construction of the Facility. RX agrees, at its sole
cost and expense, to remedy any problems with the Facility, upon Six Flags'
request, including without limiting the foregoing, problems associated with
defective design, engineering, workmanship, failure of factory construction,
materials or any component parts.
(iv) RX shall not place, maintain, or permit to be placed or
maintained on any exterior portion of the Facility or on the interior side of or
immediately adjacent to any glass door, wall or window of said Facility, or
otherwise display outside said Facility in the confines of the Park, any signs,
advertisements, lettering, trade, brand or service name, mark or logo, neon
lights, flood lights, colored lights, flashing lights or other exterior lighting
without prior written consent of Six Flags, which consent may be granted or
withheld in the absolute discretion of Six Flags. RX shall not use in, on or
about said Facility, or elsewhere in the Park, any sound producing or
reproduction equipment audible inside or outside said Facility, without the
prior written consent of Six Flags.
C. Alterations.
(i) RX agrees to make alterations, modifications, additions,
RX Agreement Page 7 of 19
<PAGE>
improvements or updates, at its sole cost and expense (including any necessary
design and engineering expenses), to the Facility [and/or the Equipment (as
hereinafter defined)], as hereinafter defined (collectively, the "Alterations"),
as shall be mutually agreed to by the parties and in accordance with the Design
Policy as Six Flags may amend from time to time upon notice to RX; provided,
however, that RX shall be required to make Alterations if: (i) the Alterations
are reasonably required by Six Flags: (x) for safety, quality or financial
control reasons, or (y) if new technology and improvements are made to the same
type of Facility [and/or Equipment] in the industry; and/or (ii) required by any
applicable laws, rules or regulations. All such Alterations shall be made in a
good and workmanlike manner.
(ii) RX covenants that it will not make, or suffer or permit
to be made, any Alterations in, on, or to the Facility and/or the Equipment
without first: (a) notifying Six Flags in writing sufficiently in advance of the
commencement thereof to enable Six Flags to post or record or both, appropriate
and effective notices of non-responsibility, (b) obtaining the written consent
of Six Flags thereto, which consent Six Flags shall not unreasonably withhold
provided that the proposed Alterations are of high quality and in harmony with
the overall design and appearance of the Park, and necessary to operate the Ride
Photo Shop in a safe and efficient manner, (c) obtaining the written approval of
Six Flags as to all contractors, subcontractors, and materialmen who will
perform work or services or supply materials in connection therewith and (d)
obtaining the written consent of Six Flags with respect to the proposed
commencement and completion date of such Alterations.
D. Maintenance and Repair.
RX agrees to properly maintain and keep in good repair and
condition the Facility, at its sole cost and expense. The Facility shall be
maintained in keeping with the themeing and overall aesthetics of the Park. In
the event any portion of the Facility and/or the Equipment is inoperative or a
component thereof has failed or is defective, RX shall repair the same no later
than 24 hours of RX's knowledge of the same or, in the case of Equipment, RX
shall secure comparable equipment (the "Replacement Equipment") and deliver the
same to the Park until such time as the Equipment is repaired. Failure of RX to
comply with the provisions of this subsection shall constitute default
hereunder.
E. Relocation.
RX agrees that Six Flags shall have the right to relocate RX
to another Facility in the Park, for any reason, provided that Six Flags agrees
to exercise reasonable care to minimize interference in or to RX's operations.
F. Ownership.
(i) It is understood and agreed that the Facility and the
RX Agreement Page 8 of 19
<PAGE>
improvements thereto, whether made by RX or Six Flags hereunder, shall remain
the property of Six Flags including, without limitation, the trademarks and
other indicia of Six Flags, Including an Alternate Name (hereinafter defined)
("Six Flags' Trademarks") and the trademarks of Six Flags' affiliates, including
Warner Bros. and DC Comics ("Affiliates' Trademarks")
(ii) It is further understood and agreed that the Equipment
(other than equipment in the adjacent Six Flags retail space), shall remain the
property of RX; provided, however, that if such Equipment has been paid for by
Six Flags, then such equipment shall remain the property of Six Flags. This
Section shall survive the termination of this Agreement.
G. Interference with Park/Parks' Operations.
RX understands that this Agreement may not be asserted to
affect or impede Six Flags' normal Park operations, including without
limitation, upgrading Park equipment, building and/or facilities, buying/selling
Park games or attractions, entering into agreements with other parties or
locating or changing other facilities, equipment, walkways or signage into or
surrounding the Facility, each without the consent of RX. RX shall have no
exclusive rights with respect to the sale and/or operation of concessions in the
Park similar in nature or type to the RX type Ride Photo Shop, during the term
of this Agreement.
4. EQUIPMENT.
A. Description.
RX agrees to provide, at its sole cost and expense, all
equipment, supplies, furnishings, displays, and other signage, cash registers,
credit card processing equipment and any other materials necessary to operate
the Ride Photo Shop (the "Equipment"). A general description of the Equipment is
set forth in Exhibit E, attached hereto and incorporated herein.
B. Delivery, Installation and Removal.
(i) RX agrees that it shall be responsible for the shipment,
installation and, promptly following the end of the Term, the removal, of the
Equipment, including parts therefor and/or Replacement Equipment (as hereinafter
defined), at its sole cost and expense. RX agrees that time is of the essence
with respect to this Agreement and the business of the Park is significantly
affected by RX's ability to have the Equipment installed and operating on
schedule and that the business, revenues and profits of the Park will be
affected in a materially adverse manner if the Equipment is not ready (in good
working order) for operation on the Commencement Date.
(ii) Six Flags shall have the right, but not the obligation,
to test
RX Agreement Page 9 of 19
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and inspect the Equipment and the installation and operation of the Equipment
during the Term. RX agrees, at its sole cost and expense, to remedy any problems
with the Equipment and installation thereof, upon Six Flags' request, including
without limiting the foregoing, problems associated with defective design,
engineering, workmanship, failure of factory construction, materials or any
component parts.
C. Additional Equipment..
RX agrees to install and/or supply additional Equipment, as
determined by mutual agreement of the parties, at no additional cost to Six
Flags.
5. PAYMENT TO RX.
A. Six Flags shall collect and record the receipts of the Ride Photo
Shop and Six Flags shall pay RX the following share of Net Revenues (as
hereinafter defined) during each operating season of the Term as follows:
Year RX's % of Net Revenue
---- ---------------------
2000 62%
B. "Net Revenue" means gross revenue of the Ride Photo Shop during
the applicable period less the sales tax paid or payable in respect thereto or
otherwise paid. RX agrees that Six Flags shall have the right to deduct the
following from RX's share of the Net Revenue: (ii) cash shortages, (iii) credit
card processing, and other transaction costs and charges, including charge backs
and fees related thereto, (iv) the cost associated with the damage or loss of
uniforms as set forth in more detail in Section 2 G (vi) hereof, and (v) the
cost of any bill or charge which is the basis or which may be the basis for a
lien against the Facility as set forth in more detail in Section 9 A (vii)
hereof.
C. RX's share of the Net Revenue will be calculated at the end of
the week. For payment purposes, a week shall be defined as the seven (7) day
period beginning Monday and ending on and including Sunday. Payments shall be
directed as set forth in this Agreement or as RX may otherwise direct in writing
and shall be payable twenty one (21) days from Six Flags' calculation thereof.
Six Flags shall have no further monetary liability or obligation to RX. Payments
shall be made to RX at the address indicated in the first paragraph of this
Agreement or otherwise as requested in writing by RX.
D. Notwithstanding Six Flags' deduction of sales tax from Net
Revenue, RX represents and warrants that all payments by Six Flags to RX of RX's
share of Net Revenue hereunder are exempt from any United States federal, state
and local taxes or other assessments, including any withholding taxes. RX shall
be solely responsible for, and shall pay when due, assessments arising from or
in connection with the receipt by RX of such Net Revenue.
RX Agreement Page 10 of 19
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6. AUDIT RIGHTS.
Until all claims and rights of Six Flags shall have been fully
ascertained, fixed and paid RX shall maintain, in accordance with generally
accepted accounting principles, separate and accurate records of the gross
receipts of the Ride Photo Shop at the Park showing in detail all business
transacted by RX. Six Flags shall have the right, at all reasonable times, to
examine and inspect such records as well as any other business records of RX
pertaining to the operation of the Ride Photo Shop. This Section shall survive
the termination of this Agreement.
7. CHANGE IN FINANCIAL CONDITION.
RX agrees to notify Six Flags promptly of any significant/material
change in its financial condition.
8. TRADEMARKS.
A. RX hereby grants Six Flags the exclusive royalty-free right and
license to use RX's trademarks, trade names, service marks, logos and symbols.
("RX's Trademarks") for the Term of the Agreement in connection with the Ride
Photo Shop in the Park. RX's Trademarks are and shall remain RX's sole and
exclusive property.
B. Six Flags reserves the right to create an alternate name and/or
logo (collectively, the "Alternate Name") for the Ride Photo Shop. Six Flags
shall own all right, title and interest in and to such Alternate Name, and all
goodwill with respect thereto shall inure to the benefit of Six Flags. RX agrees
that any Alternate Name shall be the exclusive property of Six Flags.
C. Six Flags' Trademarks are and shall remain the sole and exclusive
property of Six Flags, and Affiliates' Trademarks are and shall remain the sole
and exclusive property of Six Flags' affiliates, and RX shall not use nor permit
others to use Six Flags' Trademarks, including the Alternate Name, and
Affiliates' Trademarks for any purpose without the prior written consent of Six
Flags nor do anything which could in any way conflict with Six Flags' or its
affiliates' use or ownership of such trademarks.
9. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS.
A. RX represents and warrants that:
(i) RX is, and will during the term of this Agreement be,
solvent and able to meet its obligations hereunder as and when they become due;
(ii) RX shall not use, or suffer or permit any person or
persons
RX Agreement Page 11 of 19
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to use, the Equipment and/or Facility for any purpose other than as set forth
herein without the prior written consent of Six Flags, or in any unlawful manner
or for any unlawful purpose;
(iii) RX shall comply with, and use its best efforts to cause
its agents and employees to comply with all rules and regulations of the Park as
may be in effect from time to time. RX confirms that it has been provided with a
copy of the rules and regulations of the Park;
(iv) RX will not offer or provide any Goods/Services in or
from the Ride Photo Shop or elsewhere in the Park, without the prior express
written authorization of Six Flags. Any uncertainty with respect to the
Goods/Services which RX is authorized to offer or provide shall be resolved in
the manner which most limits and restricts RX's authority, and any reasonable
interpretation of such authority by Six Flags shall be binding upon RX;
(v) RX shall maintain, at its sole cost and expense during the
Term of this Agreement, a valid business license and any other necessary permits
or licenses and shall provide proof of same to Six Flags;
(vi) The Ride Photo Shop, including the Facility and Equipment
with respect thereto, will be fit and safe for its intended commercial use,
shall be free from defects, shall comply with all applicable laws, ordinances
and regulations, including building, electrical and/or other codes, and will
meet the operation objectives set forth herein;
(vii) RX shall promptly pay all bills and charges relating to
the Ride Photo Shop in the Park, including any Alterations to the Equipment
and/or the Facility, and shall protect and indemnify Six Flags and the Park
against all such bills and charges and liens relating thereto. In the event that
RX desires to contest any bill or charge which is the basis or which may be the
basis for a lien against the Facility constituting the Ride Photo Shop or the
Park or both, RX shall, within five (5) days of notice therefor, obtain a bond
of, or deposit collateral with, a responsible corporate surety or depository to
protect against any such lien in the amount of any such bill estimated costs and
expenses, including without limitation, attorney's fees and interest. If RX
fails to post such bond or collateral within the aforementioned time period, Six
Flags may, without prejudice to any other right or remedy of Six Flags herein
have the option to: (a) pay any such claim, bill or charge on RX's behalf, and
RX shall reimburse Six Flags on demand for the amount of any such payment or (b)
have the right to set off the amount of said claim, bill or charge from the
portion of RX's Net Revenue due hereunder. Should any claim or lien be filed or
recorded affecting the Facility or the Park or both, or should any action
affecting the title thereto be commenced, RX shall give Six Flags written notice
thereof promptly after the same becomes known to RX, and RX shall thereafter
remedy the same with respect to the Facility or the Park or both;
RX Agreement Page 12 of 19
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(viii) RX's Trademarks, and/or any advertising, promotion or
publicity materials supplied Six Flags by RX hereunder will not violate,
infringe upon or give rise to any adverse claim with respect to any common law
or other right whatsoever, including, without limitation, any copyright,
trademark, service mark, right of privacy or publicity or contract right of any
party or violate any other law; and
(ix) Except as otherwise expressly permitted herein, RX shall
not have the right to use or permit the use of any of Six Flags' Trademarks,
including any depiction of the Park or Affiliates' Trademarks without Six Flags'
prior written consent identifying the use consented to, which consent may be
granted or withheld in the absolute discretion of Six Flags. This Section shall
survive the termination of the Agreement.
10. SUBCONTRACTORS.
Six Flags acknowledges that RX has the right to utilize
subcontractors (collectively, the "Subcontractors") to fulfill the obligations
set forth hereunder, subject to Six Flags' prior approval with respect thereto
and the work to be performed thereby. RX agrees that (i) the terms of the
agreement between RX and any Subcontractor will comply with all the terms of
this Agreement, including, without limitation, the provisions concerning
criminal background checks of persons working at the Park for or on behalf of RX
and the provisions concerning insurance, (ii) there will be no disruption in the
operation of the Ride Photo Shop whatsoever (even in the event of replacement of
the Subcontractors), and (iii) RX shall not cause or permit any liens, claims or
encumbrances to be placed on or with respect to the Equipment, Facility, Park or
any other property of Six Flags or RX which is the subject of this Agreement.
11. ASSIGNMENT.
The obligations of RX herein are personal in nature and this
Agreement and the obligations of RX hereunder shall not be assigned or otherwise
transferred by RX, in whole or in part, to any third party without the prior
written consent of Six Flags. Six Flags may assign this Agreement to any
affiliate of Six Flags. For purposes of this Agreement, the term "assigned" or
"assignment" shall include, without limitation, a consolidation or merger of RX
with or into another party, a reorganization or a sale of all or substantially
all of the assets of RX to another party, and/or transfer of a controlling
interest in RX's business in or to another party.
12. INDEMNITY.
RX covenants that it will protect, defend, hold harmless and
indemnify Six Flags, its directors, officers, employees, agents, subsidiaries,
affiliates, partners and parent companies from and against any and all expenses,
claims, actions, liabilities, attorney's fees and costs, damages and losses of
any kind or nature whatsoever (including, without limitation of the foregoing,
death of or injury to
RX Agreement Page 13 of 19
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persons and damage to property), actually or allegedly resulting from or
connected with the operation of the Ride Photo Shop (including, without
limitation of the foregoing, goods sold, work done, services rendered or
products utilized therein, advertising and promotion therefor, lack of repair in
or about the area occupied or arising out of any actual or alleged infringement
of any patent or claim of patent, copyright, trademark, service mark, or trade
name) or from the omission or commission of any act, lawful or unlawful, or
breach of this Agreement by RX or its agents or employees, whether or not such
act is within the scope of the employment of such agents or employees and not
due to the negligence or willful misconduct of Six Flags or its employees and
agents. This Section shall survive the termination of the Agreement.
13. INSURANCE.
A. To insure RX's performance of the obligations and warranties as
set forth herein, but not by way of limitation, RX agrees, at its expense, to
procure and maintain Comprehensive General Liability against claims for bodily
injury, personal injury or death and property damage, Contractual Liability,
Products Liability, Automobile Liability against claims for bodily injury,
personal injury or death and property damage, and Worker's Compensation
Insurance, including an employer liability endorsement (collectively, the
"Insurance") each covering claims occurring upon, in or about the Park, and on,
in or about the adjoining streets, sidewalks and passageways and identifying
this Agreement, the Park and Six Flags Theme Parks Inc. as being named as
additional insured on the Insurance policies described herein, including any
renewals of such Insurance. The Insurance shall apply separately to each insured
against whom a claim is made or suit is brought. The Insurance shall remain in
full force and effect for the Term of this Agreement and one (1) year
thereafter, and all such Insurance shall include a waiver of subrogation against
Six Flags. This Section shall survive the termination of the Agreement.
B. The Insurance shall be written by a company rated "A" or better
by Best Insurance Reports, or by such other company consented to in writing by
Six Flags. The policy of Insurance will provide, inter alia, for thirty (30)
days advance notice to Six Flags and RX of any proposed policy modification or
cancellation. Upon any cancellation and/or modification of any Insurance policy
required hereby, and prior to the effective date thereof, RX shall deliver
replacement insurance to Six Flags. RX shall forward the Certificate of
Insurance form attached hereto and incorporated herein as Exhibit F to its
insurer for execution and transmit such executed Certificate to Six Flags
promptly after execution of this Agreement, and RX shall also supply Six Flags
with its official Certificate of Insurance promptly after execution of this
Agreement for its records.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out of
a single occurrence and $3,000,000 for all claims in the aggregate.
RX Agreement Page 14 of 19
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D. All Insurance policies required to be maintained shall be primary
and shall not require contribution from any coverage maintained by Six Flags,
and shall not contain, without Six Flags' prior written consent, any special or
non-customary exclusions.
E. RX shall further, upon request, furnish Six Flags with a
certificate from RX's insurance carrier certifying that RX has obtained Worker's
Compensation insurance upon its employees, or an opinion of counsel satisfactory
to Six Flags that such coverage is not required.
F. RX understands that Six Flags' rights and RX's obligations
hereunder shall not be limited or affected by the provisions of this Section 13.
14. BREACH.
In the event of breach of any provision of this Agreement by RX or
in the event RX should become insolvent, file a voluntary petition in
bankruptcy, have a receiver, liquidator or trustee in bankruptcy appointed over
its affairs, have a significant material adverse change in its financial
condition, and notwithstanding Six Flags' right to receive liquidated damages
hereunder, in lieu thereof, Six Flags may, at its option, then or at any time
thereafter while said breach continues, upon fifteen (15) days prior written
notice to RX, terminate this Agreement and the license and privileges granted
hereby and be relieved of all further obligation hereunder arising after the
date of termination. In the event of termination hereunder, RX shall then quit
and surrender the premises as set forth in this Agreement and the license and
privileges granted hereby shall then terminate; provided, however, that RX shall
remain liable for all obligations under this Agreement, and Six Flags may, in
addition to any remedy herein provided, recover from RX any damages to which it
may be entitled in law or equity. This Section shall survive the termination of
this Agreement.
15. NOTICES.
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To Six Flags: Six Flags Magic Mountain
26101 Magic Mountain Parkway
Valencia, CA. 91355
Attn: Director, Retail Dept.
Fax: (805)255-4789
copy to: Premier Parks
122 East 42nd Street 49th Floor
New York, NY 10168
RX Agreement Page 15 of 19
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Attn: General Counsel
Fax: (212) 949-6203
To RX: RX Technology, Inc.
2264 7th Street
Mandeville, LA. 70471
Attn: D. Rex Gay
Fax: 504-727-9815
or to such other addresses as the parties may direct by written notice given as
hereinabove provided. Notice shall be deemed given when received as evidenced by
the return receipt or the date such notice is first refused, if that be the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
16. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, RX may,
subject to any indebtedness of RX to Six Flags, promptly remove RX's Equipment
from the Park, except that Six Flags' Trademarks or Six Flags' Affiliates'
Trademarks shall be removed from the Equipment and remain at the Park, and RX
shall quit and surrender the Ride Photo Shop in the Park in good condition,
reasonable wear and tear excepted. Unless the parties otherwise agree, if RX
fails to remove the Equipment from the Park within five (5) days after
termination of this Agreement, then RX shall be deemed to have abandoned such
property and title to the same shall at that time vest in Six Flags. Any costs
and expenses incurred by Six Flags in removing such abandoned property
(including the reasonable value of the services rendered by Park employees in
connection therewith) shall be paid to Six Flags by RX promptly following demand
therefor. This Section shall survive the termination of this Agreement.
17. GOVERNING LAW.
A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State of
California (the "Specified State") and that the laws of the Specified State
shall govern the construction, interpretation and enforceability of this
Agreement. Should any dispute arise in connection with the construction,
interpretation, performance or enforcement of the provisions of this Agreement,
Each of the parties hereto agree that any such action shall be brought only in
the courts located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the
RX Agreement Page 16 of 19
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relationship of the parties hereto, (ii) agree that any such action, suit or
proceeding shall be brought in any state or federal court of competent
jurisdiction sitting in the federal court district in the Specified State, (iii)
submits to the jurisdiction of such courts and (iv) to the fullest extent
permitted by law, agree that it will not bring any action, suit or proceeding in
any forum other than as provided herein (but nothing herein shall affect the
right of the Six Flags to bring any action, suit or proceeding in any other
forum to the extent necessary to enforce its rights under this Agreement).
18. RELATIONSHIP OF THE PARTIES.
RX is an independent contractor. Nothing contained in or done
pursuant to this Agreement shall be construed as creating a partnership, agency,
joint employer, joint venture or landlord-tenant relationship. Except as
otherwise expressly provided in this Agreement, no party shall become bound,
with respect to third parties, by any representation, act or omission of the
other.
19. FORCE MAJEURE.
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God. In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
20. PUBLICITY
A. Six Flags shall, at its discretion, develop, direct and produce
any and all advertising and promotion in connection with the Ride Photo Shop in
the Park for the purposes of advertising, promoting, publicizing and
merchandising the Ride Photo Shop in the Park. RX agrees to cooperate, as
necessary, when requested to provide any advertising or promotion with respect
to the Ride Photo Shop.
B. Six Flags shall have the right to use RX's Trademarks and the
names of any person or entity rendering services on or associated with the Ride
Photo Shop, as well as any such person or entity's biography, photographic or
non-photographic likeness and recorded voice.
C. RX shall not have the right to have or cause to have sponsors
with respect to the Ride Photo Shop without the prior written approval of Six
Flags.
D. RX agrees that Six Flags may obtain sponsors for the Ride Photo
Shop which may include affixing signage in or around the Ride Photo Shop, and
any proceeds Six Flags derives in connection therewith shall be solely that of
Six Flags.
RX Agreement Page 17 of 19
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21. PROPRIETARY INFORMATION.
RX agrees that this Agreement and all information regarding the
business operations, policies and practices of Six Flags ("Proprietary
Information") acquired or learned in connection with the activities conducted
under this Agreement shall be deemed confidential and shall be kept in strict
confidence under appropriate safeguards. The term Proprietary Information, as
used herein, does not include any information that is or becomes generally
available to the public other than as a result of disclosure in violation of
this Agreement. This Section shall survive the termination of the Agreement.
22. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
23. ENTIRE AGREEMENT
This Agreement (including any and all exhibits and schedules hereto)
constitutes the entire agreement between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
agreements and undertakings of the parties pertaining to the subject matter
hereof. This Agreement may not be modified except by written instrument duly
executed by the parties hereto.
RX Agreement Page 18 of 19
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IN WITNESS WHEREOF, this License Agreement has been duly executed by the
parties hereto on the day and year first hereinabove written.
SIX FLAGS MAGIC MOUNTAIN,
a division of Six Flags Theme Parks Inc.
By: /s/ Del Holland
--------------------------------------
Del Holland
Vice President, General Manager
RX TECHNOLOGY, INC.
By: /s/ Donald Rex Gay
--------------------------------------
D. Rex Gay
President
RX Agreement Page 19 of 19
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Exhibit A
Location
Locations shall be determined by Six Flags in its sole discretion and may
be changed from time to time in the reasonable discretion of Six Flags.
RX SHALL OPERATE THE RIDE PHOTO SHOPS AT THE FOLLOWING LOCATIONS:
1. Riddler's Revenge Roller Coaster
2. Batman the Ride Roller Coaster
3. Children's Roller Coaster in Bugs Bunny World
4. Goliath Ride Roller Coaster
RX Agreement
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) RX shall comply with Six Flags' credit card
procedures (the "Credit Card Procedures") (a list of the Credit Card Procedures
in effect as of the date hereof is attached hereto and is incorporated herein),
as Six Flags may amend them from time to time upon notice to RX, with respect to
acceptance of Credit Cards as payment for any Goods/Services.
(ii) RX agrees that it shall not: (A) discriminate in
favor of any Credit Card accepted for payment over another, (B) require a
minimum transaction amount or impose a surcharge as a condition for honoring
Credit Cards, (C) impose a requirement on Credit Card holders to provide any
personal information as a condition for honoring Credit Cards unless otherwise
required by the Credit Card Procedures, (D) make or require a photocopy of a
Credit Card, (E) make a Credit Card sale where only part of the consideration
due is paid by use of such Credit Card, or (F) accept a Credit Card for any
purpose which is prohibited by the Credit Card Procedures.
(iii) RX shall not make a Credit Card sale to any person
if: (A) the Credit Card being presented has expired according to the expiration
date shown on such Credit Card, (B) the sale has been declined for
authorization, (C) RX has reasonable grounds to believe the Credit Card being
presented is counterfeit, fraudulent or stolen, or (D) the signature on the
Credit Card does not appear to be the same as the signature on the sales draft
or the spelling of the signature on the sales draft is different from the
spelling of the name on the Credit Card. RX shall use reasonable efforts to
retrieve any credit card from the customer when instructed by a service provider
in response to an authorization or other inquiry.
(iv) RX agrees to display symbols of the Credit Cards,
supplied by Six Flags hereunder, at its Facility in the Park to effectively
inform customers of the Park that the Credit Cards are honored by RX.
(b) Returns and Adjustments.
(i) All disputes between RX and any Credit Card holder
respecting any Credit Card transaction hereunder shall be settled between RX and
such Credit Card holder. RX agrees that in the event of a Credit Card dispute,
RX
RX Agreement
<PAGE>
shall reasonably address the Credit Card holder's concern in a good faith
manner.
(ii) RX shall maintain a fair and consistent policy for
exchange and return of Goods/Services and for the adjustment of amounts due on
Credit Card transactions and such policy shall be the same as available to cash
customers. RX shall make no cash refunds or payments to Credit Card holders for
returns or adjustments on Credit Card sales.
(iii) When a refund or payment is due to a Credit Card
holder for return or adjustment, RX shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible credit adjustment memo on
a form provided or approved by Six Flags and deliver to the Credit Card holder a
copy of the completed form. Each credit adjustment memo shall be imprinted with
or contain the following: (A) Six Flags' name and merchant account number, (B)
city and address where the credit or adjustment occurred, (C) Credit Card
holder's name and Credit Card number, (D) Credit Card expiration date, (E) the
date of the return or adjustment and the date of the initial transaction, if
available, (F) the amount of the credit, and (vii) a brief description of the
Goods/Services returned.]
(iv) With respect to each credit adjustment memo
presented to Six Flags and/or transmitted hereunder, RX represents and warrants
that: (A) the credit adjustment memo represents an amount lawfully due to a
Credit Card holder for the return or adjustment of Goods/Services previously
purchased with the Credit Card, (B) a sales draft relating to and including the
amount of the credit memo was previously presented to Six Flags and/or
transmitted hereunder, (c) the credit adjustment memo does not duplicate
information concerning the same transaction in any other credit slip unless Six
Flags requests a resubmission, (D) the signature appearing on the credit
adjustment memo is that of an authorized employee of RX, and (E) RX has complied
fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX fails to comply with the Credit Card
Procedures or the terms of this Exhibit C for a given Credit Card transaction
and said sales draft is returned to Six Flags, or in the event Goods/Services
are returned by the customer that paid by Credit Card, or in the event
Goods/Services are not received by customer or any defense or problem is made or
presented by customer questioning the validity or authorization of the
transaction, RX agrees that Six Flags may, in its sole discretion: (i) deduct
the amount of said Credit Card transaction from RX's share of the revenue from
the Ride Photo Shop due and owing RX, if any, or (ii) bill RX in the amount of
said Credit Card transaction, and RX shall pay Six Flags the same within five
(5) days of receipt therefor, or (iii) demand payment from RX in the amount of
said Credit Card transaction and RX shall pay Six Flags immediately upon its
receipt of Six Flags' demand. Failure of RX to pay Six Flags as set forth herein
for any outstanding Credit Card transactions shall constitute a breach of the
Agreement.
RX Agreement
<PAGE>
(d) Termination of Acceptance.
In the event Six Flags' agreement with respect to the
Credit Cards terminates or Six Flags, in its sole discretion, determines that it
does not want RX to accept Credit Cards as payment for Goods/Services hereunder,
RX agrees to discontinue acceptance of Credit Cards and remove the Credit Card
symbols from the Facility upon notification by Six Flags.
2. CASH.
(a) Acceptance.
RX represents and warrants that it shall cause all cash
received by or on RX's behalf for sale of Goods/Services hereunder to be rung in
the cash register or other Six Flags approved cash collection equipment and
deposited in such cash register or other equipment at the time of sale. RX
agrees that it shall not accept cash for a mail or telephone order transaction.
(b) Returns and Adjustments.
(i) All disputes between RX and any customer respecting
any cash transaction hereunder shall be settled between RX and such customer. RX
agrees that in the event of a dispute, RX shall reasonably address the
customer's concern in a good faith manner.
(ii) RX shall maintain a fair and consistent policy for
exchange and return of merchandise and for the adjustment of amounts due on cash
transactions and such policy shall be the same as available to credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX shall prepare, execute and deliver to Six Flags or
cause to be delivered to be delivered to Six Flags a legible authorized refund
slip.
(iv) With respect to each legible authorized refund slip
presented to Six Flags hereunder, RX represents and warrants that (A) the refund
slip represents an amount lawfully due customer for the return or adjustment of
Goods/Services previously purchased in cash, (B) a sales draft relating to and
including the amount of the refund was previously presented to Six Flags and/or
transmitted hereunder, (C) the refund slip does not duplicate information
concerning the same transaction in any other refund unless Six Flags requests a
resubmission, (D) the signature appearing on the refund slip is that of RX, and
(E) RX has complied fully with the terms of this Agreement.
(v) RX agrees that in the event Goods/Services hereunder
are returned on a day that said Goods/Services were not purchased, Six Flags
may, in its sole discretion: (A) deduct the amount of said return from RX's
RX Agreement
<PAGE>
share of the revenue from the Ride Photo Shop due and owing RX, if any; (B) bill
RX in the amount of said return and RX shall pay Six Flags the same within five
(5) days of receipt therefor or (C) demand payment from RX in said amount and RX
shall pay Six Flags immediately upon receipt of Six Flags' demand. Failure of RX
to pay Six Flags as set forth herein for any amount outstanding shall constitute
a breach of the Agreement.
Credit Card Procedures
RX represents and warrants that it shall follow the following Credit Card
Procedures, as may be amended from time to time by Six Flags upon notice to RX:
1. Each Credit Card sale shall be evidenced by a legible sales draft
(the "Draft") on a form approved by Six Flags, indicating the full amount due
for Goods/Services sold hereunder.
2. Each Draft shall be imprinted by RX, or show evidence of the
electronic equivalent obtained through use of a terminal which reads the
magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) Six Flags'
name and merchant account number. (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including the
account number, name and expiration date of the Credit Card, (iv) the date the
transaction takes place and the price of the Goods/Services, (v) total amount of
the transaction, including all applicable taxes, (vi) description of
Goods/Services, and (vii) signature of the Credit Card holder.
4. RX shall compare the signature on the Draft with the signature on
the Credit Card to ascertain that they are the same, and if the Credit Card has
a photograph of the Credit Card holder, verify that the Credit Card holder and
the person presenting the Credit Card appear to be the same person. If RX
believes there is a discrepancy in the signature or if the photographic
identification is uncertain, RX shall contact the service provides for
instructions.
5. If the signature panel on the Credit Card is blank, RX shall do
the following: (i) review positive identification to determine that the user is
the Credit Card holder; such identification must consist of a current official
government identification document (such as a passport or driver's license) that
bears the Credit Card holder's signature, (ii) indicate such positive
identification (including any serial number and expiration date) on the Draft
and (iii) require the Credit Card holder to sign the signature panel of the
Credit Card prior to completing the transaction.
6. On mail and telephone order sales, if any, RX shall print on the
Draft the information required in Paragraph 3 of these Credit Card Procedures
and, in addition, the following: (i) the customer's name and account number,
(ii) whether the order was placed by mail (M.O.) or telephone (T.O.), and (iii)
whether or not
RX Agreement
<PAGE>
authorization is obtained. With respect to mail and telephone order sales, RX
does not need to secure the Credit Card holder's signature or Credit Card
imprint. RX understands that telephone and mail order transactions are permitted
at RX's sole risk; namely, that any defense or problem raised by a customer
questioning the validity or authorization of the transaction may be made.
7. For each Credit Card sale, RX shall deliver or cause to be
delivered a copy of the completed sales draft to the customer, evidencing the
full amount due for the Goods/Services.
8. RX shall not complete a sales transaction without first obtaining
an authorization from the designated service provider for the total amount of
the transaction. RX shall print legibly on the Draft the authorization/approval
code, evidencing any authorization so obtained.
RX Agreement
<PAGE>
Exhibit C
Employees
RX's Employees shall include the following:
No. of Employees Title Function Location
- ---------------- ----- -------- --------
RX Agreement
<PAGE>
Exhibit D
LESSEE
AND
CONSULTANT
DESIGN GUIDELINES
Kevin P. Barbee, AIA
January 9, 1994
RX Agreement
<PAGE>
Exhibit E
Equipment
Quantity Description [Year/Brand/Item/Special Features] Improvements
- -------- ---------------------------------------------- ------------
RX Agreement
<PAGE>
Exhibit 10.10
Six Flags Great America
Eagle
<PAGE>
RX TECHNOLOGY AGREEMENT
THIS RX TECHNOLOGY AGREEMENT is made as of this 1st day of April, 1998, by
and between SIX FLAGS GREAT AMERICA, a division of Six Flags Theme Parks Inc., a
Delaware Corporation, having offices at 542 North Route 21, Gurnee, IL ("Six
Flags") and RX Technology a corporation, having offices at P.O. Box 9112,
Mandeville, LA 70470 ("Lessee").
WITNESSETH
WHEREAS, Six Flags owns, operates or manages the theme amusement facility
which is open to the general public and known as Six Flags Great America in
Gurnee (the "Park").
WHEREAS, RX Technology desires to operate a retail concession known as RX
Technology (the "Concession") to sell photographs of guests riding "ShockWave,
Eagle, Kiddie Coaster" (the "Goods") in the Park as set forth herein;
WHEREAS, Six Flags desires to grant RX Technology a license to operate the
Concession in the Park, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, Six Flags and RX Technology agree as follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX Technology a license to operate the Concession in the Park
in such locations of the Park as is set forth on Exhibit A-1 hereto during the
period of time (the "Term") commencing April 1, 1998 (the "Commencement Date")
and terminating at the end of the Park's 1999 operating season. In the event
that RX Technology meets or exceeds a year to date gross per capita two year
average of $.16 of the locations as set forth, an Exhibit A-1 at the end of the
1999 operating season, the existing Agreement will be extended through the 2000
operating season (the "Termination Date").
2. OPERATION.
A. Hours of Operation.
RX Technology agrees to operate the Concession during the
hours and days, including Sundays and holidays, that the Park is open for
business in accordance with schedules prepared by Six Flags which Six Flags may
modify in Six Flags' sole discretion at any time on twenty-four (24) hours
notice to RX Technology and such additional hours as are required by Six Flags
(the "Operating Hours"). RX Technology acknowledges that Six Flags will suffer
great harm if RX Technology breaches the agreement set forth in this subsection,
the amount of which would be difficult to determine. Therefore, RX Technology
agrees to pay Six Flags liquidated damages of $50.00 for each Park operating day
that RX Technology opens the Concession thirty (30) minutes after the opening
time of the Park's Operating Hours and/or closes the Concession thirty (30)
minutes before the closing time of the Park's Operating Hours upon notice
thereof by Six Flags and such
<PAGE>
liquidated damages amount shall be increased an additional $50.00 for each
successive violation of Park Operating Hours upon notice thereof by Six Flags,
up to a maximum liquidated damages amount of $500.00.
B. Approval of Goods.
RX Technology agrees to submit samples of all products
detailed plans, specifications, drawings and other information with respect to
Goods for sale to be made available to customers in the Park in connection with
the Concession, for Six Flags' approval in advance of sale of the same. RX
Technology agrees to make such changes to the Goods, at its sole cost and
expense, as Six Flags shall reasonably determine. RX Technology also agrees to
coordinate with the Park in coding each of RX Technology's Goods and inputting
the same in the cash resister for tracking purposes. To the extent requested by
Six Flags, RX Technology shall comply with Six Flags' point of sale and other
information systems requirements.
C. Price of Goods.
(i) RX Technology agrees to submit to Six Flags for its review
and approval, a retail price list of all RX Technology's Goods for sale to
customers of the Park (the "Approved Price List") at least two (2) weeks prior
to Commencement Date or any proposed change in any previously approved price
list. RX Technology agrees to make changes to the Approved Price List as Six
Flags shall reasonably request. RX Technology shall be responsible for all costs
and expenses associated with production and printing of the Price List and any
changes thereto, and such costs shall not be deducted from Net Revenue (as
hereinafter defined).
(ii) RX Technology agrees to make changes to the Approved
Price List (the "Revised Price List") at any time during the Term if the parties
mutually determine, that an adjustment is appropriate. RX Technology shall be
responsible for all costs and expenses associated with production and printing
of the Revised Price List, and such costs shall not be deducted from Net Revenue
(as hereinafter defined).
(iii) RX Technology agrees that it shall not make its Goods
available to any party free of charge or at a discounted price unless RX
Technology is engaging in sampling activities approved by Six Flags, etc.
Notwithstanding the foregoing, RX Technology agrees to offer such discounts on
its Goods as Six Flags shall require and as Six Flags shall offer in locations
owned by Six Flags. RX Technology shall, at all times, charge customers,
including without limitation, family members, employees and business associates,
the price set forth on the Approved Price List for its Goods except as otherwise
expressly set forth herein.
D. Methods of Sale; Payment and Return Policies.
(i) The Goods shall be available for sale to customers of the
Park as follows: at point of purchase (each, a "Method of Sale"). A Method of
Sale shall be discontinued at the discretion of Six Flags.
(ii) The following forms of payment for RX Technology Goods
will be accepted: MasterCard, Visa, American Express and Discover credit cards
(collectively, the "Credit
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<PAGE>
Cards"), checks, and cash (each, a "Form of Payment"). Six Flags may, in its
sole discretion, discontinue and, if applicable, require RX Technology to
discontinue any Form of Payment for Goods sold hereunder. Conversely, Six Flags
may, in its sole discretion, require RX Technology to accept such additional
forms of payment as may be accepted by Six Flags in the future; and in so doing,
RX Technology agrees to submit to such reasonable rules/restrictions with
respect thereto. Payment for the Goods shall be in accordance with the
provisions of Exhibit B - Payment/Return Agreement, which is attached hereto and
incorporated herein.
E. Reports and Records.
(i) Upon commencement of RX Technology's daily operations, RX
Technology shall pick up a cash till from the Park's cash control facility, and
within one (1) hour after the close of each Park day, RX Technology shall
deliver to Park's cash control facility the following: (a) remaining cash till,
(b) a daily report of the day's operations on Six Flags' "Daily Sales Report"
form, and (c) the day's daily gross receipts, including without limitation
credit card sales drafts, credit memos and all other materials evidencing sales
transactions during such day (collectively, the "Deposits"). Such Deposits are
received subject to audit by Six Flags as set forth herein and Six Flags may
correct and credit or debit RX Technology for any inaccuracies or errors in RX
Technology computation of Deposits. Six Flags may refuse to accept or revoke
acceptance of any Deposits, including any sales drafts or credit adjustments,
which are illegible or which fail to comply with the terms of this Agreement,
including, but not limited to, any federal or state law.
(ii) RX Technology shall retain copies of sales drafts and
other materials evidencing sales transactions related to sale of Goods for the
Term of the Agreement from date of transaction. This Section shall survive the
termination of the Agreement.
F. Compliance with Laws.
RX Technology agrees that at all times during the Term it
shall be in compliance with all laws, rules and regulations with respect to
operation of the Concession in the Park, including, without limitation, all
environmental and employment laws, rules and regulations. RX Technology agrees
that it shall be responsible for obtaining, at its sole cost and expense, all
licensing and/or permits required in connection with operation of the Concession
in the Park.
G. Employees.
(i) RX Technology acknowledges that it has no authority to
employ persons on behalf of Six Flags, and no employees or agents of RX
Technology shall be deemed to be agents or employees of Six Flags.
(ii) Without Six Flags' prior written consent, RX Technology
shall not, until after the second anniversary of the end of the Term, solicit
for the purpose of hiring or employ, directly or indirectly, any employee
employed by, or independent contractor engaging in business with, Six Flags, in
each case, during the Term. This subsection of the Agreement shall survive until
the second anniversary of the end of the Term.
3
<PAGE>
(iii) RX Technology represents and warrants that it shall, at
its sole cost and expense, recruit, train, supervise and furnish the Goods of at
least three (3) persons to operate the and perform Goods in connection with the
Concession as set forth in Exhibit C attached hereto and incorporated herein
("RX Technology Employees") during Operating Hours. RX Technology acknowledges
that Six Flags will suffer great harm if RX Technology breaches the agreement
set forth in this subclause, the amount of which would be difficult to
determine. Therefore, RX Technology agrees to pay Six Flags liquidated damages
of $250.00 for each Park operating day that RX Technology fails to furnish the
Goods of three (3) trained persons to operate the Concession and/or fails to
operate the Concession during the Operating Hours.
(iv) RX Technology shall be fully responsible for all RX
Technology's Employees, including without limitation, responsibility for all
salaries and other compensation, withholding taxes, worker's compensation
insurance, union dues, if applicable, and other required payments in connection
with such employees and shall be in compliance with all laws, rules and
regulations with respect thereto.
(v) Each prospective employee of RX Technology shall complete
an employment application, the form of which must be approved by Six Flags,
prior to beginning work in the Park.
(vi) RX Technology agrees to use best efforts to cause its
employees to attend Park training/orientation programs as may be required by Six
Flags and comply with Park rules and regulations, including without limitation
submission to drug testing, as may be required. RX Technology further agrees to
cause its employees to wear such uniforms as shall be approved in advance by Six
Flags, if Six Flags provides said uniforms. RX Technology agrees that all such
uniforms shall be returned in good condition, normal wear and tear excepted, to
Six Flags at the end of Term. RX Technology agrees to pay Six Flags for any
damage to, or loss of, such uniforms. Six Flags reserves the right to set off
the amounts thereof from RX Technology share of Net Revenues.
(vii) RX Technology agrees to verify, at its sole cost and
expense, the references of RX Technology Employees, including without
limitation, prior positions of employment, reasons for leaving prior positions,
age, education, criminal records, immigration status, and right to work in the
United States and use due diligence to determine if any of RX Technology
Employees have provided false information or omitted significant information
with respect to their backgrounds and/or prior employment.
(viii) RX Technology represents and warrants that it shall
not, to RX Technology knowledge, employ any person to work in the Park who has a
criminal history without Six Flags' knowledge and approval with respect to said
employment. Personality Portrait's knowledge, for the purpose described in the
immediately preceding sentence, is the knowledge that RX Technology would have
known had RX Technology performed a reference check of the type performed by Six
Flags. RX Technology acknowledges that great harm can be suffered by Six Flags
if a RX Technology employee is discovered to have a criminal record that could
have been discovered with a criminal history background check of the type
performed by Six Flags with respect to all prospective employees of Six Flags.
The parties agree that it will be difficult to determine the damages suffered by
Six Flags in the event of RX Technology failure to undertake such background
checks. Accordingly, the parties agree that in the event RX Technology employs
an individual for
4
<PAGE>
work in the Park for whom RX Technology has not, prior to hiring such person,
undertaken a criminal history background check of the type performed by Six
Flags, then RX Technology shall pay Six Flags liquidated damages of $1,000.00
with respect to each such employee of RX Technology regardless of whether the
background check would have revealed any evidence of criminal history.
(ix) At the request of Six Flags, RX Technology shall make
available to Six Flags all information obtained with respect to its employees,
including, without limitation, criminal history background checks.
(x) RX Technology agrees to terminate employment at the Park
for any RX Technology Employee working in the Park who: (a) is subsequently
discovered to have a criminal history and, after being advised of the same, Six
Flags does not approve said employment, (b) fails to comply with Park rules or
(c) made material misstatements or omissions on their employment application. RX
Technology agrees to indemnify Six Flags from and against any claims by RX
Technology Employees arising from or related to such dismissals.
(xi) Six Flags agrees that RX Technology may offer RX
Technology Employees discounts on Park admission and food/merchandise at the
Park that Six Flags offers its employees in accordance with Park policy.
3. FACILITY.
A. Rights/Responsibilities.
(i) In connection with RX Technology operation and management
of the Concession, Six Flags agrees that RX Technology shall be entitled use of
and/or access to: (a) the facility at which the Concession is operated (the
"Facility"), (b) adjacent portions of the Facility, as may be necessary for the
operation and maintenance of the Concession, and (c) common ways and areas
within the Park for incinerator or trash purposes, loading and unloading
supplies and installation, repair and maintenance of Equipment and/or other
elements related to the Concession.
(ii) Six Flags will be responsible for heating, ventilation,
air conditioning, plumbing, electrical, expenses related to the operation of the
Concession in the Facility. Six Flags also agrees to provide the following: (i)
passes to enter the Park for RX Technology Employees in the performance of their
duties, and (ii) Lessees's Employee access to the Park employee parking areas on
a first-come, first-serve basis to be used in the performance of their duties.
(iii) RX Technology will be responsible for cleaning the
Facility and area and removing trash from said areas, the regular maintenance of
the Facility related to the operation of the Concession in the Facility.
B. Construction.
(i) Prior to the construction of the Facility in the Park at
which the Concession is operated, RX Technology will submit its plans to the
Park for approval. These plans
5
<PAGE>
will include exterior and interior finishes as well as RX Technology proposed
signage. RX Technology will design the exterior and interior of the Facility and
the signage so that they will be consistent with the theme of the area of the
Park in which the Facility is located and Six Flags' design requirements policy
(the "Design Policy") (a copy of the Design Policy in effect as of the date
hereof is attached hereto and incorporated herein), as Six Flags may amend from
time to time upon notice to RX Technology.
(ii) RX Technology agrees to obtain all permits, consents,
approvals and clearances with respect to any construction contemplated hereunder
and comply with all laws, rules and regulations with respect thereto, including
Six Flags Maintenance Department rules, and shall secure Six Flags' prior
approval with respect to the following: (a) contractors, subcontractors,
designers, architects and materialmen who will perform work or Goods or supply
materials in connection with the construction of the Facility, (b) dates of
commencement and completion with respect to each phase of the construction of
the Facility and (c) agreements with all contractors, subcontractors, designers
architects and materialmen. RX Technology shall only enter into construction
agreements hereunder which permit assignment to Six Flags and its affiliates.
All construction hereunder shall be made in a good and workmanlike manner.
(iii) Six Flags shall have the right, but not the obligation,
to test and inspect the construction of the Facility. RX Technology agrees, at
its sole cost and expense, to remedy any problems with the Facility, upon Six
Flags' request, including without limiting the foregoing, problems associated
with defective design, engineering, workmanship, failure of factory
construction, materials or any component parts.
(iv) RX Technology shall not place, maintain, or permit to be
placed or maintained on any exterior portion of the Facility or on the interior
side of or immediately adjacent to any glass door, wall or window of said
Facility, or otherwise display outside said Facility in the confines of the
Park, any signs, advertisements, lettering, trade, brand or service name, mark
or logo, neon lights, flood lights, colored lights, flashing lights or other
exterior lighting without prior written consent of Six Flags, which consent may
be granted or withheld in the absolute discretion of Six Flags. RX Technology
shall not use in, on or about said Facility, or elsewhere in the Park, any sound
producing or reproduction equipment audible inside or outside said Facility,
without the prior written consent of Six Flags.
C. Alterations.
Upon approval by RX Technology in writing, Six Flags shall
have the right, but not the obligation, to make alterations, modifications,
additions, improvements or updates, at RX Technology sole cost and expense, to
the Facility and/or the Equipment (as hereinafter defined), as hereinafter
defined (collectively, the "Alterations"); provided, however, that RX Technology
shall have been deemed to approve Alterations if: (i) the Alterations are
reasonably required by Six Flags: (a) for safety, quality or financial control
reasons, or (b) if new technology and improvements are made to the same type of
Facility and/or Equipment in the industry and/or (ii) required by any applicable
laws, rules or regulations. All such Alterations shall be made in a good and
workmanlike manner. RX Technology agrees to pay Six Flags for the reasonable
cost of such Alterations within thirty (30) days of receipt of an invoice
therefor.
6
<PAGE>
(i) RX Technology agrees to make alterations, modifications,
additions, improvements or updates, at its sole cost and expense (including any
necessary design and engineering expenses), to the Facility and/or the
Equipment, as shall be mutually agreeed to by the parties and in accordance with
the Design Policy.
(ii) RX Technology covenants that it will not make, or suffer
or permit to be made, any Alterations in, on, or to the Facility and/or the
Equipment without first: (a) notifying Six Flags in writing sufficiently in
advance of the commencement thereof to enable Six Flags to post or record or
both, appropriate and effective notices of non-responsibility, (b) obtaining the
written consent of Six Flags thereto, which consent Six Flags shall not
unreasonably withhold provided that the proposed Alterations are of high quality
and in harmony with the overall design and appearance of the Park, and necessary
to operate the Concession in a safe and efficient manner, (c) obtaining the
written approval of Six Flags as to all contractors, subcontractors, and
materialmen who will perform work or Goods or supply materials in connection
therewith and (d) obtaining the written consent of Six Flags with respect to the
proposed commencement and completion date of such Alterations.
D. Maintenance and Repair.
RX Technology agrees to properly maintain and keep in good
repair and condition the Facility and/or the Equipment, at its sole cost and
expense. The Facility and/or the Equipment shall be maintained in keeping with
the themeing and overall aesthetics of the Park. In the event any portion of the
Facility and/or the Equipment is inoperative or a component thereof has failed
or is defective, RX Technology shall repair the same no later than seventy-two
hours of RX Technology knowledge of the same or, in the case of Equipment, RX
Technology shall secure comparable equipment (the "Replacement Equipment") and
deliver the same to the Park until such time as the Equipment is repaired.
Failure of RX Technology to comply with the provisions of this subsection shall
constitute default hereunder.
E. Relocation.
RX Technology agrees that Six Flags shall have the right to
relocate RX Technology to another Facility in the Park, for any reason, provided
that Six Flags agrees to exercise reasonable care to minimize interference in or
to RX Technology operations.
F. Ownership.
(i) It is understood and agreed that the Facility and the
improvements thereto, whether made by RX Technology or Six Flags hereunder,
shall remain the property of Six Flags or RX Technology respectively, except the
trademarks and other indicia of Six Flags, including an Alternate Name
(hereinafter defined) ("Six Flags' Trademarks") and the trademarks of Six Flags'
affiliates, including Warner Bros. And DC Comics ("Affiliates' Trademarks")
shall be the property of Six Flags and its affiliates and in the event of
expiration or termination hereunder Six Flags' Trademarks and its Affiliates'
Trademarks shall be removed therefrom and returned to Six Flags at RX Technology
sole cost and expense.
7
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(ii) It is further understood and agreed that the improvements
thereto, whether made by RX Technology or Six Flags hereunder, shall remain the
property of Six Flags.
G. Interference with Park/Park Operations.
RX Technology understands that this Agreement may not be
asserted to affect or impede Six Flags' normal Park operations, including
without limitation, upgrading Park equipment, building and/or facilities,
buying/selling Park games or attractions, entering into agreements with other
parties or locating or changing other facilities, equipment, walkways or signage
into or surrounding the Facility, each without the consent of RX Technology. RX
Technology shall have no exclusive rights with respect to the operation of
concessions in the Park similar in nature or type to the Concession.
4. EQUIPMENT.
A. Description.
(i) RX Technology agrees to provide, at its sole cost and
expense, all equipment, supplies, furnishings, displays, and other signage, cash
registers, and any other materials necessary to operate the Concession (the
"Equipment"). Notwithstanding the foregoing, RX Technology agrees that it shall
use only Six Flags provided, credit card processing equipment (collectively,
"Six Flags' Equipment"), as appropriate, for all transactions and, in
consideration therefore, RX Technology shall pay Six Flags no later than thirty
(30) days of receipt of an invoice therefor.
B. Delivery, Installation and Removal.
(i) RX Technology agrees that it shall be responsible for the
shipment, installation and, promptly following the end of the Term, the removal,
of the Equipment, including parts therefor and/or Replacement Equipment (as
hereinafter defined), at its sole cost and expense. RX Technology agrees to
coordinate with Six Flags with respect to the dates and times of shipment and
installation of the Equipment, Replacement Equipment and/or parts therefor.
(ii) Six Flags shall have the right, but not the obligation,
to test and inspect the Equipment and the installation and operation of the
Equipment during the Term. RX Technology agrees, at its sole cost and expense,
to remedy any problems with the Equipment and installation thereof, upon Six
Flags' request, including without limiting the foregoing, problems associated
with defective design, engineering, workmanship, failure of factory
construction, materials or any component parts.
C. Additional Equipment.
RX Technology agrees to install and/or supply additional
Equipment, as determined by mutual agreement of the parties, at no additional
cost to Six Flags.
8
<PAGE>
5. PAYMENT TO RX TECHNOLOGY.
A. RX Technology shall collect, record and submit the Deposits of
the Concession to Six Flags and Six Flags shall pay RX Technology the following
share of Net Revenues (as hereinafter defined) during each operating season of
the Term as follows:
Year RX Technology % of Net Revenue
---- ------------------------------
1998-1999 62%
2000 62%
B. "Net Revenue" means gross revenue of the Concession during the
applicable period less the sales tax paid or payable in respect thereto or
otherwise paid. RX Technology agrees that Six Flags shall have the right to
deduct the following from RX Technology share of the Net Revenue: (ii) cash
shortages, (iii) credit card, check processing and other transaction costs and
charges, including charge backs and return check amounts and fees related
thereto, (iv) the cost of goods taken from Six Flags' warehouse, to the extent
permitted by Six Flags, or otherwise and not paid for, (v) the cost of leased
Park equipment, if any, each during the applicable period, (vi) the cost
associated with the damage or loss of uniforms as set forth in more detail in
Section 2 G (vi) hereof, and (vii) the cost of any bill or charge which is the
basis or which may be the basis for a lien against the Facility as set forth in
more detail in Section 9 A (vii) hereof.
C. RX Technology share of the Net Revenue will be calculated at the
end of the week. For payment purposes, a week shall be defined as the seven (7)
day period beginning Monday and ending on and including Sunday. Payments shall
be directed as set forth in this Agreement or as RX Technology may otherwise
direct in writing and shall be payable seven (7) days from Six Flags'
calculation thereof. Six Flags shall have no further monetary liability or
obligation to RX Technology. Payments shall be made to RX Technology at the
address indicated in the first paragraph of this Agreement or otherwise as
requested in writing by RX Technology.
D. Notwithstanding Six Flags' deduction of sales tax from Net
Revenue, RX Technology represents and warrants that all payments by Six Flags to
RX Technology of RX Technology share of Net Revenue hereunder are exempt from
any United States federal, state and local taxes or other assessments, including
any withholding taxes. RX Technology shall be solely responsible for, and shall
pay when due, assessments arising from or in connection with the receipt by RX
Technology of such Net Revenue.
6. AUDIT RIGHTS.
Until all claims and rights of Six Flags shall have been fully
ascertained, fixed and paid RX Technology shall maintain, in accordance with
generally accepted accounting principles, separate and accurate records of the
gross receipts of the Concession at the Park showing in detail all business
transacted by RX Technology. Six Flags shall have the right, at all reasonable
times, to examine and inspect such records as well as any other business records
of RX Technology pertaining to the operation of the Concession. This Section
shall survive the termination of this Agreement.
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7. CHANGE IN FINANCIAL CONDITION.
RX Technology agrees to notify Six Flags promptly of any
significant/material change in its financial condition.
8. TRADEMARKS.
A. RX Technology hereby grants Six Flags the non-exclusive
royalty-free right and license to use RX Technology trademarks, trade names,
service marks, logos and symbols, ("RX Technology Trademarks") for the Term of
the Agreement in connection with the Concession/Attraction in the Park. RX
Technology Trademarks are and shall remain RX Technology sole and exclusive
property. Six Flags agrees to include a trademark symbol (TM) on the first and
most prominent reference to RX Technology Trademarks and a protective trademark
legend in materials as shall be required by RX Technology hereunder.
B. Six Flags reserves the right to create an alternate name and/or
logo (collectively, the "Alternate Name") for the Concession. Six Flags shall
own all right, title and interest in and to such Alternate Name, and all
goodwill with respect thereto shall inure to the benefit of Six Flags. RX
Technology agrees that any Alternate Name shall be the exclusive property of Six
Flags.
C. Six Flags' Trademarks are and shall remain the sole and exclusive
property of Six Flags, and Affiliates' Trademarks are and shall remain the sole
and exclusive property of Six Flags' affiliates, and RX Technology shall not use
nor permit others to use Six Flags' Trademarks, including the Alternate Name,
and Affiliates' Trademarks for any purpose without the prior written consent of
Six Flags nor do anything which could in any way conflict with Six Flags' or its
affiliates' use or ownership of such trademarks.
9. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS.
A. RX Technology represents and warrants that:
(i) RX Technology is, and will during the term of this
Agreement be, solvent and able to meet its obligations hereunder as and when
they become due;
(ii) RX Technology shall not use, or suffer or permit any
person or persons to use, the Equipment and/or Facility for any purpose other
than as set forth herein without the prior written consent of Six Flags, or in
any unlawful manner or for any unlawful purpose;
(iii) RX Technology shall comply with, and use its best
efforts to cause its agents and employees to comply with all rules and
regulations of the Park as may be in effect from time to time. RX Technology
confirms that it has been provided with a copy of the rules and regulations of
the Park;
(iv) RX Technology will not offer or provide any Goods in or
from the Concession or elsewhere in the Park, without the prior express written
authorization of Six Flags.
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Any uncertainty with respect to the Goods which RX Technology is authorized to
offer or provide shall be resolved in the manner which most limits and restricts
RX Technology's authority, and any reasonable interpretation of such authority
by Six Flags shall be binding upon RX Technology;
(vi) the Concession, including the Facility and the Equipment
with respect thereto, will be fit and safe for its intended commercial use,
shall be free from defects, shall comply with all applicable laws, ordinances
and regulations, including building, electrical and/or other codes, and will
meet the operation objectives set forth herein;
(vii) RX Technology shall promptly pay all bills and charges
relating to the Concession in the Park, including any Alterations to the
Equipment and/or the Facility, and shall protect and indemnify Six Flags and the
Park against all such bills and charges and liens relating thereto. In the event
that RX Technology desires to contest any bill or charge which is the basis or
which may be the basis for a lien against the Facility constituting the
Concession or the Park or both, RX Technology shall, within five (5) days of
notice therefor, obtain a bond of, or deposit collateral with, a responsible
corporate surety or depository to protect against any such lien in the amount of
any such bill estimated costs and expenses, including without limitation,
attorney's fees and interest. If RX Technology fails to post such bond or
collateral within the aforementioned time period, Six Flags may, without
prejudice to any other right or remedy of Six Flags herein have the option to:
(a) pay any such claim, bill or charge on RX Technology's behalf, and RX
Technology shall reimburse Six Flags on demand for the amount of any such
payment or (b) have the right to set off the amount of said claim, bill or
charge from the portion of RX Technology Net Revenue due hereunder. Should any
claim or lien be filed or recorded affecting the Facility or the Park or both,
or should any action affecting the title thereto be commenced, RX Technology
shall give Six Flags written notice thereof promptly after the same becomes
known to RX Technology, and RX Technology shall thereafter remedy the same with
respect to the Facility or the Park or both;
(viii) RX Technology Trademarks, and/or any advertising,
promotion or publicity materials supplied Six Flags by RX Technology hereunder
will not violate, infringe upon or give rise to any adverse claim with respect
to any common law or other right whatsoever, including, without limitation, any
copyright, trademark, service mark, right of privacy or publicity or contract
right of any party or violate any other law; and
(ix) Except as otherwise expressly permitted herein, RX
Technology shall not have the right to use or permit the use of any of Six
Flags' Trademarks, including any depiction of the Park or Affiliates' Trademarks
without Six Flags' prior written consent identifying the use consented to, which
consent may be granted or withheld in the absolute discretion of Six Flags. This
Section shall survive the termination of the Agreement.
10. SUBCONTRACTORS.
Six Flags acknowledges that RX Technology has the right to utilize
subcontractors (collectively, the "Subcontractors") to fulfill the obligations
set forth hereunder, subject to Six Flags' prior approval with respect thereto
and the work to be performed thereby. RX Technology agrees that (i) the terms of
the agreement between RX Technology and any Subcontractor will comply with all
the terms of this Agreement, including, without limitation, the provisions
concerning
11
<PAGE>
criminal background checks of persons working at the Park for or on behalf of RX
Technology and the provisions concerning insurance, (ii) there will be no
disruption (including strike) in the operation of the Concession whatsoever
(even in the event of replacement of the Subcontractors), and (iii) RX
Technology shall not cause or permit any liens, claims or encumbrances to be
placed on or with respect to the Equipment, Facility, Park or any other property
of Six Flags or RX Technology which is the subject of this Agreement.
11. ASSIGNMENT.
The obligations of RX Technology herein are personal in nature and
this Agreement and the obligations of RX Technology hereunder shall not be
assigned or otherwise transferred by RX Technology, in whole or in part, to any
third party without the prior written consent of Six Flags. Six Flags may assign
this Agreement to any affiliate of Six Flags. For purposes of this Agreement,
the term "assigned" or "assignment" shall include, without limitation, a
consolidation or merger of RX Technology with or into another party, a
reorganization or a sale of all or substantially all of the assets of RX
Technology to another party, and/or transfer of a controlling interest in RX
Technology business in or to another party.
12. INDEMNITY.
RX Technology covenants that it will protect, defend, hold harmless
and indemnify Six Flags, its directors, officers, employees, agents,
subsidiaries, affiliates, partners and parent companies from and against any and
all expenses, claims, actions, liabilities, attorney's fees and costs, damages
and losses of any kind or nature whatsoever (including, without limitation of
the foregoing, death of or injury to persons and damage to property), actually
or allegedly resulting from or connected with the operation of the Facility
and/or the Concession (including, without limitation of the foregoing, goods
sold, work done, Goods rendered or products utilized therein, advertising and
promotion therefor, lack of repair in or about the area occupied or arising out
of any actual or alleged infringement of any patent or claim of patent,
copyright, trademark, service mark, or trade name) or from the omission or
commission of any act, lawful or unlawful, or breach of this Agreement by RX
Technology or its agents or employees, whether or not such act is within the
scope of the employment of such agents or employees and not due to the
negligence or willful misconduct of Six Flags or its employees and agents. This
Section shall survive the termination of the Agreement.
13. INSURANCE.
A. To insure RX Technology performance of the obligations and
warranties as set forth herein, but not by way of limitation, RX Technology
agrees, at its expense, to procure and maintain Comprehensive General Liability
against claims for bodily injury, personal injury or death and property damage,
Contractual Liability, Products Liability, Automobile Liability against claims
for bodily injury, personal injury or death and property damage, Risk Builder's
Risk Insurance, including coverage against collapse, written on a completed
value basis and Worker's Compensation Insurance, including an employer liability
endorsement (collectively, the "Insurance") each covering claims occurring upon,
in or about the Park, and on, in or about the adjoining streets, sidewalks and
passageways and identifying this Agreement, the Park and Six Flags Theme Parks
Inc. as being named as additional insured on the Insurance policies described
herein, including any renewals of
12
<PAGE>
such Insurance. The Insurance shall apply separately to each insured against
whom a claim is made or suit is brought. The Insurance shall remain in full
force and effect for the Term of this Agreement and one (1) year thereafter, and
all such Insurance shall include a waiver of subrogation against Six Flags. This
Section shall survive the termination of the Agreement.
B. The Insurance shall be written by a company rated "A" or better
by Best Insurance Reports, or by such other company consented to in writing by
Six Flags. The policy of Insurance will provide, inter alia, for thirty (30)
days advance notice to Six Flags and RX Technology of any proposed policy
modification or cancellation. Upon any cancellation and/or modification of any
Insurance policy required hereby, and prior to the effective date thereof, RX
Technology shall deliver replacement insurance to Six Flags. RX Technology shall
forward the Certificate of Insurance form attached hereto and incorporated
herein as Exhibit D to its insurer for execution and transmit such executed
Certificate to Six Flags promptly after execution of this Agreement, and RX
Technology shall also supply Six Flags with its official Certificate of
Insurance promptly after execution of this Agreement for its records.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out of
a single occurrence and $5,000,000 for all claims in the aggregate.
D. All Insurance policies required to be maintained shall be primary
and shall not require contribution from any coverage maintained by Six Flags,
and shall not contain, without Six Flags' prior written consent, any special or
non-customary exclusions.
E. RX Technology shall further, upon request, furnish Six Flags with
a certificate from RX Technology insurance carrier certifying that RX Technology
has obtained Worker's Compensation insurance upon its employees, or an opinion
of counsel satisfactory to Six Flags that such coverage is not required.
F. RX Technology understands that Six Flags' rights and RX
Technology obligations hereunder shall not be limited or affected by the
provisions of this Section 14.
15. BREACH.
In the event of breach of any provision of this Agreement by RX
Technology or in the event RX Technology should become insolvent, file a
voluntary petition in bankruptcy, have a receiver, liquidator or trustee in
bankruptcy appointed over its affairs, have a significant material adverse
change in its financial condition, Six Flags may, at its option, then or at any
time thereafter while said breach continues, upon fifteen (15) days prior
written notice to RX Technology, terminate this Agreement and the license and
privileges granted hereby and be relieved of all further obligation hereunder
arising after the date of termination. In the event of termination hereunder, RX
Technology shall then quit and surrender the premises as set forth in this
Agreement and the license and privileges granted hereby shall then terminate;
provided, however, that RX Technology shall remain liable for all obligations
under this Agreement, and Six Flags may, in addition to any remedy herein
provided, recover from RX Technology any damages to which it may be entitled in
law or equity. This Section shall survive the termination of this Agreement.
13
<PAGE>
16. NOTICES.
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To Six Flags: Six Flags Great America
542 North Route 21
Gurnee, IL 60031
Att: Roy G. Dennis, Jr.
Fax: 847/249-7348
copy to: Six Flags Theme Parks Inc.
400 Interpace Parkway
Building C, Third Floor
Parsippany, NJ 07054-1191
Att: General Counsel
Fax: 201-331-7585
Fax: 201/299-7519
Phone: 973-402-8100
To RX Technology: RX Technology
P.O. Box 9112
Mandeville, LA. 70470
Att: Rex Gay
Fax: 504/727-9815
or to such other addresses as the parties may direct by written notice given as
hereinabove provided. Notice shall be deemed given when received as evidenced by
the return receipt or the date such notice is first refused, if that be the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
17. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, RX
Technology may, subject to any indebtedness of RX Technology to Six Flags,
promptly remove RX Technology Equipment from the Park, except that Six Flags'
Trademarks or Six Flags' Affiliates' Trademarks shall be removed from the
Equipment and remain at the Park, and RX Technology shall quit and surrender the
Facility in the Park in good condition, reasonable wear and tear excepted.
Unless the parties otherwise agree, if RX Technology fails to remove the
Equipment from the Park within five (5) days after termination of this
Agreement, then RX Technology shall be deemed to have abandoned such property
and title to the same shall at that time vest in Six Flags. Any costs and
expenses incurred by Six Flags in removing such abandoned property (including
the reasonable value of the Goods rendered by Park employees in connection
therewith) shall be paid to Six Flags by RX Technology promptly following demand
therefor. This Section shall survive the termination of this Agreement.
18. GOVERNING LAW.
14
<PAGE>
A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State of
Illinois (the "Specified State") and that the laws of the Specified State shall
govern the construction, interpretation and enforceability of this Agreement.
Should any dispute arise in connection with the construction, interpretation,
performance or enforcement of the provisions of this Agreement, Each of the
parties hereto agree that any such action shall be brought only in the courts
located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the relationship of the parties hereto, (ii) agree that any
such action, suit or proceeding shall be brought in any state or federal court
of competent jurisdiction sitting in the federal court district in the Specified
State, (iii) submits to the jurisdiction of such courts and (iv) to the fullest
extent permitted by law, agree that it will not bring any action, suit or
proceeding in any forum other than as provided herein (but nothing herein shall
affect the right of the Six Flags to bring any action, suit or proceeding in any
other forum to the extent necessary to enforce its rights under this Agreement).
19. RELATIONSHIP OF THE PARTIES.
RX Technology is an independent contractor. Nothing contained in or
done pursuant to this Agreement shall be construed as creating a partnership,
agency, joint employer, joint venture or landlord-tenant relationship. Except as
otherwise expressly provided in this Agreement, no party shall become bound,
with respect to third parties, by any representation, act or omission of the
other.
20. FORCE MAJEURE.
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God. In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
21. PUBLICITY.
A. Six Flags shall, at its discretion, develop, direct and produce
any and all advertising and promotion in connection with the Concession in the
Park for the purposes of advertising, promoting, publicizing and merchandising
the Concession in the Park. RX Technology agrees to cooperate, as necessary,
when requested to provide any advertising or promotion with respect to the
Concession.
B. Six Flags shall have the right to use RX Technology Trademarks
and the names of any person or entity rendering Goods on or associated with the
Concession, as well as any
15
<PAGE>
such person or entity's biography, photographic or non-photographic likeness and
recorded voice.
C. RX Technology shall not have the right to have or cause to have
sponsors with respect to the Concession without the prior written approval of
Six Flags.
D. RX Technology agrees that Six Flags may obtain sponsors for the
Concession which may include affixing signage in or around the Concession, and
any proceeds Six Flags derives in connection therewith shall be solely that of
Six Flags.
22. PROPRIETARY INFORMATION.
RX Technology agrees that this Agreement and all information
regarding the business operations, policies and practices of Six Flags
("Proprietary Information") acquired or learned in connection with the
activities conducted under this Agreement shall be deemed confidential and shall
be kept in strict confidence under appropriate safeguards. The term Proprietary
Information, as used herein, does not include any information that is or becomes
generally available to the public other than as a result of disclosure in
violation of this Agreement. This Section shall survive the termination of the
Agreement.
23. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
24. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules hereto)
constitutes the entire agreement between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
agreements and undertakings of the parties pertaining to the subject matter
hereof. This Agreement may not be modified except by written instrument duly
executed by the parties hereto
-------------------------------
16
<PAGE>
IN WITNESS WHEREOF, this RX Technology Agreement has been duly executed by
the parties hereto on the day and year first hereinabove written.
SIX FLAGS GREAT AMERICA,
(a division of Six Flags Theme Parks Inc.)
By: /s/ James H. Wintrode
--------------------------------------
James H. Wintrode
President
RX Technology:
By: /s/ Donald Rex Gay President 3-31-98
--------------------------------------
Rex Gay
President/Owner
-------------------------------
S-1
<PAGE>
Exhibit A
Location(s)
The locations are set forth below, subject to relocation in the reasonable
discretion of Six Flags.
SHOCKWAVE
EAGLE
KIDDIE COASTER
Ex. A - 1
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) RX Technology shall comply with Six Flags' credit
card procedures (the "Credit Card Procedures") (a list of the Credit Card
Procedures in effect as of the date hereof is attached hereto and is
incorporated herein), as Six Flags may amend them from time to time upon notice
to RX Technology, with respect to acceptance of Credit Cards as payment for any
Goods.
(ii) RX Technology agrees that it shall not: (A)
discriminate in favor of any Credit Card accepted for payment over another, (B)
require a minimum transaction amount or impose a surcharge as a condition for
honoring Credit Cards, (c) impose a requirement on Credit Card holders to
provide any personal information as a condition for honoring Credit Cards unless
otherwise required by the Credit Card Procedures, (D) make or require a
photocopy of a Credit Card, (E) make a Credit Card sale where only part of the
consideration due is paid by use of such Credit Card, or (F) accept a Credit
Card for any purpose which is prohibited by the Credit Card Procedures.
(iii) RX Technology shall not make a Credit Card sale to
any person if: (A) the Credit Card being presented has expired according to the
expiration date shown on such Credit Card, (B) the sale has been declined for
authorization, (c) RX Technology has reasonable grounds to believe the Credit
Card being presented is counterfeit, fraudulent or stolen, or (D) the signature
on the Credit Card does not appear to be the same as the signature on the sales
draft or the spelling of the signature on the sales draft is different from the
spelling of the name on the Credit Card. RX Technology shall use reasonable
efforts to retrieve any credit card from the customer when instructed by a
service provider in response to an authorization or other inquiry.
(iv) RX Technology agrees to display symbols of the
Credit Cards, supplied by Six Flags hereunder, at its Facility in the Park to
effectively inform customers of the Park that the Credit Cards are honored by RX
Technology.
(b) Returns and Adjustments.
(i) All disputes between RX Technology and any Credit
Card holder respecting any Credit Card transaction hereunder shall be settled
between RX Technology and such Credit Card holder. RX Technology agrees that in
the event of a Credit Card dispute, RX Technology shall reasonably address the
Credit Card holder's concern in a good faith manner.
(ii) RX Technology shall maintain a fair and consistent
policy for exchange and return of Goods and for the adjustment of amounts due on
Credit Card transactions
Ex. B - 1
<PAGE>
and such policy shall be the same as available to cash customers. RX Technology
shall make no cash refunds or payments to Credit Card holders for returns or
adjustments on Credit Card sales.
(iii) When a refund or payment is due to a Credit Card
holder for return or adjustment, RX Technology shall prepare, execute and
deliver to Six Flags or cause to be delivered to Six Flags a legible credit
adjustment memo on a form provided or approved by Six Flags and deliver to the
Credit Card holder a copy of the completed form. Each credit adjustment memo
shall be imprinted with or contain the following: (A) Six Flags' name and
merchant account number, (B) city and address where the credit or adjustment
occurred, (c) Credit Card holder's name and Credit Card number, (D) Credit Card
expiration date, (E) the date of the return or adjustment and the date of the
initial transaction, if available, (F) the amount of the credit, and (vii) a
brief description of the Goods returned.
(iv) With respect to each credit adjustment memo
presented to Six Flags and/or transmitted hereunder, RX Technology represents
and warrants that: (A) the credit adjustment memo represents an amount lawfully
due to a Credit Card holder for the return or adjustment of Goods previously
purchased with the Credit Card, (B) a sales draft relating to and including the
amount of the credit memo was previously presented to Six Flags and/or
transmitted hereunder, (c) the credit adjustment memo does not duplicate
information concerning the same transaction in any other credit slip unless Six
Flags requests a resubmission, (D) the signature appearing on the credit
adjustment memo is that of an authorized employee of RX Technology, and (E) RX
Technology has complied fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technology fails to comply with the
Credit Card Procedures or the terms of this Exhibit B for a given Credit Card
transaction and said sales draft is returned to Six Flags, or in the event Goods
are returned by the customer that paid by Credit Card, or in the event Goods are
not received by customer or any defense or problem is made or presented by
customer questioning the validity or authorization of the transaction, RX
Technology agrees that Six Flags may, in its sole discretion: (i) deduct the
amount of said Credit Card transaction from RX Technology's share of the revenue
from the Concession due and owing RX Technology, if any, or (ii) bill RX
Technology in the amount of said Credit Card transaction, and RX Technology
shall pay Six Flags the same within five (5) days of receipt therefor, or (iii)
demand payment from RX Technology in the amount of said Credit Card transaction
and RX Technology shall pay Six Flags immediately upon its receipt of Six Flags'
demand. Failure of RX Technology to pay Six Flags as set forth herein for any
outstanding Credit Card transactions shall constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event Six Flags' agreement with respect to the
Credit Cards terminates or Six Flags, in its sole discretion, determines that it
does not want RX Technology to accept Credit Cards as payment for Goods
hereunder, RX Technology agrees to discontinue acceptance of Credit Cards and
remove the Credit Card symbols from the Facility upon notification by Six Flags.
Ex. B - 2
<PAGE>
2. CHECK.
(i) Acceptance.
RX Technology represents and warrants that it shall
comply with Six Flags' current check authorization procedures (the "Check
Authorization Procedures") (a copy of the TeleCheck Authorization Procedures in
effect as of the date hereof has been received by RX Technology and is
incorporated herein), as Six Flags may amend from time to time upon notice to RX
Technology, prior to acceptance of a check as payment for Goods. Notwithstanding
the foregoing, RX Technology agrees that it shall not contact TeleCheck
directly, as set forth in Section 3 of the Check Authorization Procedures but
shall contact the Merchandise Office or a Merchandise Supervisor to obtain
authorization from TeleCheck.
(b) Returns and Adjustments.
(i) All disputes between RX Technology and any customer
respecting any check transaction hereunder shall be settled between RX
Technology and such customer. RX Technology agrees that in the event of a
dispute, RX Technology shall reasonably address the customer's concern in a good
faith manner.
(ii) RX Technology shall maintain a fair and consistent
policy for exchange and return of merchandise and for the adjustment of amounts
due on check transactions and such policy shall be the same as available to cash
and credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX Technology shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible Refund Slip.
(iv) With respect to each legible Refund Slip presented
to Six Flags hereunder, RX Technology represents and warrants that: (A) the
Refund Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased with a check, (B) a sales draft
relating to and including the amount of the Refund Slip was previously presented
to Six Flags and/or transmitted hereunder, (c) the Refund Slip does not
duplicate information concerning the same transaction in any other Refund Slip
unless Six Flags requests a resubmission, (D) the signature appearing on the
Refund Slip is that of RX Technology, and (B) RX Technology has complied fully
with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technology fails to comply with the
Check Authorization Procedures for a given check and said check is returned to
Six Flags, or in the event Goods are returned by the customer that paid by
check, or in the event Goods are not received by customer or any defense or
problem is made or presented by customer questioning the validity or
authorization of the transaction, RX Technology agrees that Six Flags may, in
its sole discretion: (A) deduct the amount of said check from RX Technology's
share of the revenue from the Concession due and owing RX Technology, if any, or
(B) bill RX Technology in the amount of said check, and RX Technology shall pay
Six Flags the same within five (5) days of receipt therefor, or (c) demand
Ex. B - 3
<PAGE>
payment from RX Technology in the amount of said check and RX Technology shall
pay Six Flags immediately upon its receipt of Six Flags' demand. Failure of RX
Technology to pay Six Flags as set forth herein for any outstanding checks shall
constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event Six Flags' agreement with TeleCheck
terminates and Six Flags does not wish to continue acceptance of checks in the
Park or Six Flags, in its sole discretion, determines that it does not want RX
Technology to accept checks as payment for Goods hereunder, RX Technology agrees
to discontinue acceptance of checks upon notification by Six Flags.
3. CASH.
(a) Acceptance.
RX Technology represents and warrants that it shall
cause all cash received by or on RX Technology's behalf for sale of Goods
hereunder to be rung in the cash register or other Six Flags approved cash
collection equipment and deposited in such cash register or other equipment at
the time of sale. RX Technology agrees that it shall not accept cash for a mail
or telephone order transaction.
(b) Returns and Adjustments.
(i) All disputes between RX Technology and any customer
respecting any cash transaction hereunder shall be settled between RX Technology
and such customer. RX Technology agrees that in the event of a dispute, RX
Technology shall reasonably address the customer's concern in a good faith
manner.
(ii) RX Technology shall maintain a fair and consistent
policy for exchange and return of merchandise and for the adjustment of amounts
due on cash transactions and such policy shall be the same as available to
credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX Technology shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible Refund Slip.
(iv) With respect to each legible Refund Slip presented
to Six Flags hereunder, RX Technology represents and warrants that (A) the
Refund Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased in cash, (B) a sales draft relating to
and including the amount of the Refund Slip was previously presented to Six
Flags and/or transmitted hereunder, (c) the Refund Slip does not duplicate
information concerning the same transaction in any other Refund Slip unless Six
Flags requests a resubmission, (D) the signature appearing on the Refund Slip is
that of RX Technology, and (E) RX Technology has complied fully with the terms
of this Agreement.
Ex. B - 4
<PAGE>
(v) RX Technology agrees that in the event Goods
hereunder are returned on a day that said Goods were not purchased, Six Flags
may, in its sole discretion: (A) deduct the amount of said return from RX
Technology's share of the revenue from the Concession due and owing RX
Technology, if any; (B) bill RX Technology in the amount of said return and RX
Technology shall pay Six Flags the same within five (5) days of receipt therefor
or (c) demand payment from RX Technology in said amount and RX Technology shall
pay Six Flags immediately upon receipt of Six Flags' demand. Failure of RX
Technology to pay Six Flags as set forth herein for any amount outstanding
shall constitute a breach of the Agreement.
Ex. B - 5
<PAGE>
Credit Card Procedures
RX Technology represents and warrants that it shall follow the following
Credit Card Procedures, as may be amended from time to time by Six Flags upon
notice to RX Technology:
1. Each Credit Card sale shall be evidenced by a legible sales draft
(the "Draft") on a form approved by Six Flags, indicating the full amount due
for Goods sold hereunder.
2. Each Draft shall be imprinted by RX Technology, or show evidence
of the electronic equivalent obtained through use of a terminal which reads the
magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) Six Flags'
name and merchant account number, (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including the
account number, name and expiration date of the Credit Card, (iv) the date the
transaction takes place and the price of the Goods, (v) total amount of the
transaction, including all applicable taxes, (vi) description of Goods, and
(vii) signature of the Credit Card holder.
4. RX Technology shall compare the signature on the Draft with the
signature on the Credit Card to ascertain that they are the same, and if the
Credit Card has a photograph of the Credit Card holder, verify that the Credit
Card holder and the person presenting the Credit Card appear to be the same
person. If RX Technology believes there is a discrepancy in the signature or if
the photographic identification is uncertain, RX Technology shall contact the
service provides for instructions.
5. If the signature panel on the Credit Card is blank, RX Technology
shall do the following: (i) review positive identification to determine that the
user is the Credit Card holder; such identification must consist of a current
official government identification document (such as a passport or driver's
license) that bears the Credit Card holder's signature, (ii) indicate such
positive identification (including any serial number and expiration date) on the
Draft and (iii) require the Credit Card holder to sign the signature panel of
the Credit Card prior to completing the transaction.
6. On mail and telephone order sales, if any, RX Technology shall
print on the Draft the information required in Paragraph 3 of these Credit Card
Procedures and, in addition, the following: (i) the customer's name and account
number, (ii) whether the order was placed by mail (M.O.) or telephone (T.O.),
and (iii) whether or not authorization is obtained. With respect to mail and
telephone order sales, RX Technology does not need to secure the Credit Card
holder's signature or Credit Card imprint. RX Technology understands that
telephone and mail order transactions are permitted at RX Technology sole risk;
namely, that any defense or problem raised by a customer questioning the
validity or authorization of the transaction may be made.
7. For each Credit Card sale, RX Technology shall deliver or cause
to be delivered a copy of the completed sales draft to the customer, evidencing
the full amount due for the Goods.
Ex. B - 6
<PAGE>
8. RX Technology shall not complete a sales transaction without
first obtaining an authorization from the designated service provider for the
total amount of the transaction. RX Technology shall print legibly on the Draft
the authorization/approval code, evidencing any authorization so obtained.
Ex. B - 7
<PAGE>
Exhibit C
Employees
RX Technology Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Manager
2 Host/Hostess
Ex. C - 0
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
This is the first addendum to the original agreement dated the 1st day of
April, 1998 by and between SIX FLAGS GREAT AMERICA, a division of Six Flags
Theme Parks Inc., a Delaware Corporation, having offices at 542 North Route 21,
Gurnee, IL ("Six Flags") and RX Technology a corporation, having offices at P.O.
Box 9112, Mandeville, LA 70470 ("Lessee").
The following changes will supercede the original clauses in the agreement
dated the 1st day of April, 1998.
A. ORIGINAL CLAUSE:
WHEREAS, RX Technology desires to operate a retail concession known as RX
Technology (the "Concession") to sell photographs of guests riding Shock Wave,
Eagle, Kiddie Coaster (the "Goods") in the Park as set forth herein;
NEW CLAUSE:
WHEREAS, RX Technology desires to operate a retail concession known
as RX Technology (the "Concession") to sell photographs of guests riding Shock
Wave, Eagle, Kiddie Coaster, Raging Bull, and Batman the Ride (the "Goods") in
the Park as set forth herein;
B. ORIGINAL CLAUSE:
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX Technology a license to operate the Concession in the Park
in such locations of the Park as is set forth on Exhibit A-1 hereto during the
period of time (the "Term") commencing April 1, 1998 (the "Commencement Date")
and terminating at the end of the Park's 1999 operating season. In the event
that RX Technology meets or exceeds a year to date gross per capita two year
average of $.16 of the locations as set forth, an Exhibit A-1 at the end of the
1999 operating season, the existing Agreement will be extended through the 2000
operating season (the "Termination Date").
NEW CLAUSE:
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX Technology a license to operate the Concession in the Park
in such locations of the Park as is set forth on Exhibit A-1 hereto during the
period of time (the "Term") commencing April 1, 1998 (the "Commencement Date")
and terminating at the end of the Park's 1999 operating season. In the event
that RX Technology meets or exceeds a year to date gross per capita of $.23 of
the locations as set forth, an Exhibit A-1 at the end of the 1999 operating
season, the existing Agreement will be extended through the 2000 operating
season (the "Termination Date").
<PAGE>
C. ORIGINAL EXHIBIT A:
The locations are set forth below, subject to relocation in the reasonable
discretion of Six Flags.
SHOCK WAVE
EAGLE
KIDDIE COASTER
NEW EXHIBIT A:
SHOCK WAVE
EAGLE
KIDDIE COASTER
RAGING BULL
BATMAN THE RIDE
D. ORIGINAL EXHIBIT C:
Employees
RX Technology Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Manager
2 Host/Hostess
NEW EXHIBIT C:
Employees
RX Technology Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Manager
4 Host/Hostess
<PAGE>
E. ADDITIONAL CLAUSE SECTION 9:
(ix) Notwithstanding any other provision of this Agreement,
"SIX FLAGS", within its discretion, reserves the right to designate any other
company or person as a Park sponsor ("Designated Park Sponsor") and permit that
sponsor signage, displays, or other identification of its products or name on
the exterior within the interior of the RX Technology site as long as that
interior usage does not interfere with the actual operation of the RX Technology
operation. RX Technology shall not be entitled to any compensation from "SIX
FLAGS" or any "Designated Park Sponsor" for such usage nor shall RX Technology
be relieved of any of the terms and conditions of this Agreement. "SIX FLAGS"
agrees that no such signage of displays shall be affixed to any RX Technology
product.
F. ORIGINAL CLAUSE:
(i) Upon commencement of RX Technology's daily operations, RX
Technology shall pick up a cash till from the Park's cash control facility, and
within one (1) hour after the close of each Park day, RX Technology shall
deliver to Park's cash control facility the following: (a) remaining cash till,
(b) a daily report of the day's operations on Six Flags' "Daily Sales Report"
form, and (c) the day's daily gross receipts, including without limitation
credit card sales drafts, credit memos and all other materials evidencing sales
transactions during such day (collectively, the "Deposits"). Such Deposits are
received subject to audit by Six Flags as set forth herein and Six Flags may
correct and credit or debit RX Technology for any inaccuracies or errors in RX
Technology computation of Deposits. Six Flags may refuse to accept or revoke
acceptance of any Deposits, including any sales drafts or credit adjustments,
which are illegible or which fail to comply with the terms of this Agreement,
including, but not limited to, any federal or state law.
NEW CLAUSE:
(i) Upon commencement of RX Technology's daily operations, RX
Technology shall follow cashier procedures exhibit B-Supplement and pick up a
cash till from the Park's cash control facility, and within one (1) hour after
the close of each Park day, RX Technology shall deliver to Park's cash control
facility the following: (a) remaining cash till, (b) a daily report of the day's
operations on Six Flags' "Daily Sales Report" form, and (c) the day's daily
gross receipts, including without limitation credit card sales drafts, credit
memos and all other materials evidencing sales transactions during such day
(collectively, the "Deposits"). Such Deposits are received subject to audit by
Six Flags as set forth herein and Six Flags may correct and credit or debit RX
Technology for any inaccuracies or errors in RX Technology computation of
Deposits. Six Flags may refuse to accept or revoke acceptance of any Deposits,
including any sales drafts or credit adjustments, which are illegible or which
fail to comply with the terms of this Agreement, including, but not limited to,
any federal or state law.
<PAGE>
G. ORGINIAL CLAUSE IN EXHIBIT B CLAUSE 3 CASH:
(a) Acceptance.
RX Technology represents and warrants that it shall
cause all cash received by or on RX Technology's behalf for sale of Goods
hereunder to be rung in the cash register or other Six Flags approved cash
collection equipment and deposited in such cash register or other equipment at
the time of sale. RX Technology agrees that it shall not accept cash for a mail
or telephone order transaction.
NEW CLAUSE IN EXHIBIT B CLAUSE 3 CASH:
(a) Acceptance.
RX Technology shall comply with Six Flag's cash handling
procedures ("SFGAM Cashier Procedures") a copy of which is attached hereto.
RX Technology represents and warrants that it shall
cause all cash received by or on RX Technology's behalf for sale of Goods
hereunder to be rung in the cash register or other Six Flags approved cash
collection equipment and deposited in such cash register or other equipment at
the time of sale. RX Technology agrees that it shall not accept cash for a mail
or telephone order transaction.
This Addendum (including any and all exhibits and schedules hereto)
constitutes the first addendum between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
clauses and undertakings of the parties pertaining to the subject matter hereof.
This Addendum may not be modified except by written instrument duly executed by
the parties hereto.
<PAGE>
IN WITNESS WHEREOF, this RX Technology Agreement has been duly executed by
the parties hereto on the day and year first hereinabove written.
SIX FLAGS GREAT AMERICA,
(a division of Six Flags Theme Parks Inc.)
By: /s/ James H. Wintrode
---------------------------------------
James H. Wintrode
Vice President and General Manager
RX Technology:
By: /s/ Donald Rex Gay
---------------------------------------
Rex Gay
President/Owner
<PAGE>
Supplement - Exhibit B
Six Flags Great America Cashier Procedures
Beginning of Shift: Till Pick-up
Have the following ready before coming to the window
o Your Employee ID
o The unit name and number of the unit where you will be working
Go to the Merchandise window. Once at the window, find your unit on the sign out
sheet and sign your name on the first available line.
The amount of cash you should receive is posted on the top of the sign out
sheet. After you receive your cash BEFORE leaving cash control, count your cash
to ensure you have received the correct amount. If you find a discrepancy,
report this immediately to the cash window for correction. Once you leave the
cash office, no discrepancies can be corrected.
Complete the top part of the Cash Control Sheet with your name, the Till number
checked out, and today's date.
Currency Pick up at the unit:
When cash control collects money from your register (drawer or drop box) make
sure to receive a pick up slip. Make sure it is completed with your unit and
Till number, the date and time. You will receive the pink copy of the pick up
slip. Make sure it is signed by an authorized (ID should be presented) cash
control representative.
End of Shift: Till Turn-in:
Before traveling to cash control complete the rest of the Cash Control sheet and
get your supervisor to check it is complete and sign the sheet. This must be
returned with your cash bag. The following should be checked:
o Make sure you have a journal tape for all the places worked, mark with
your bag number, unit number, and unit name
o Make sure you have all checks and Travelers checks and your bag number is
written on the lower left on face of each one
o Make sure you have all credits sales slips signed by the guest and your
bag number is written on each one
o Make sure you log your voids and they are approved by your supervisor
o Make sure you have all your pick up slips
o Check that there is no cash left behind in your register (behind the
drawer)
o Make sure all your bills are stacked neatly, no folds or rips. Any torn
currency should be placed on the top of the stack of bills. Your change
should be in a change bag.
o Have your supervisor double check all is complete and sign the sheet.
Proceed to the window for your function and give the bag to the cashier to check
that all items are correct from the Cash Control sheet. Sign the sign-in sheet
that the bag has been returned. Make sure the Teller also signs the sheet and
records the time in before leaving the window.
More often than not, you may be selected to have your bag audited. This is
strictly random process and no cause for concern. Cooperate with the auditor as
they balance your day's sales with receipts of cash, credit, checks, and
coupons. If all your transactions are in order this should only take a few
minutes.
EX B - 6
<PAGE>
Cash Control Sheet
Name: ______________________________________ Date: ________________
Bag Number: ____________________
Check BEFORE bag turn in:
___ Journal Tapes, Register tapes are included
___ Checks and Travelers Checks... all marked with bag. Follow Telecheck
authorization procedures.
___ Credit Slips signed by guest... Follow credit authorization procedures.
___ Bugs Bunny dollars. All marked with bag # and $value.
___ Void logs signed by supervisor. (When applicable.)
___ Pick up Slips. (When applicable.)
___ All Currency stacked (no folds or creases), all loose coin in coin bag.
___ Cash register
___ Register Balancing Form completed both upper & lower portion. (Lessees only)
Cashier Signature __________________________________
Supervisor Signature ___________________________________
EX B - 7
<PAGE>
DATE: ______________ Department - $ $$$.00
TILL SIGN OUT LOG
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Control Employee Cashier - Cash Control -
Number Number Number Out Signature Out Signature Time Cashier - In Signature Cash Control - In Signature Time
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
xxx03
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
xxx03
- ------------------------------------------------------------------------------------------------------------------------------------
xxx04
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
"xxx" = Unit Number
"01", "02", "03" are based on number of tills requested per unit.
"$$$" based on till fund requested.
(Coin included vs Dollars only.)
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CASH PICKUP RECEIPT DO NOT USE RED INK
DATE______________ BAG # |_|_|_|_|_|
UNIT______________________________ TIME____________________
BAR
CASHIER______________________________ CODE I.D. # _____________
100.00 x ____ = ______________.__
50.00 x ____ = ______________.__
20.00 x ____ = ______________.__
10.00 x ____ = ______________.__
5.00 x ____ = ______________.__
2.00 x ____ = ______________.__
1.00 x ____ = ______________.__
Travelers checks _____________.__
TOTAL PICKUP _____________.__
Cashier:___________________________
Supervisor:________________________
WHITE COPY - Wrap with currency YELLOW COPY - in cash bag PINK COPY - Unit copy
PG95 71556
- --------------------------------------------------------------------------------
EX B - 9
<PAGE>
REGISTER BALANCE FORM (RBF)
DO NOT USE RED INK - PRESS FIRMLY WHEN WRITING DATE ______________
INSTRUCTIONS
PRINT TOP PORTION. FILL IN DATE, CASHIER NAME, BAG#, SS#, AND IBM#
FILL IN LINES C THROUGH J WHILE WAITING IN LINE.
A. RECORD THE TOTAL AMOUNT FROM THE LOOSE COIN RECEIPT ON THIS LINE.
B. RECORD THE TOTAL AMOUNT FROM THE FINAL CURRENCY RECEIPT ON THIS LINE.
C. ADD THE DOLLAR AMOUNTS OF ALL PERSONAL CHECKS AND RECORD ON THIS LINE.
D. ADD THE DOLLAR AMOUNTS OF ALL TRAVELER CHECKS AND RECORD ON THIS LINE.
E. ON THE LEFT SIDE OF THE FORM, LIST THE QUANTITY OF EACH ROLLED COIN TYPE
AFTER THE x. MULTIPLY THE QUANTITY TIMES THE VALUE OF EACH ROLL AND WRITE THE
RESULT IN THE TOTAL COLUMN. ADD THE TOTAL COLUMN DOWN. FOLLOW THE ARROWS TO THE
RIGHT, AND LIST THE TOTAL ROLLED COIN ON LINE E.
F. RECORD THE TOTAL CREDIT CARD AMOUNT FROM YOUR CLERK ID REPORT.
G. ADD THE TOTALS OF ALL ACCT REC AND RECORD ON THIS LINE. TO IDENTIFY: ACCT
REC WILL HAVE "ACCT REC" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
H. ADD ALL BUGS BUNNY MONEY TOGETHER AND RECORD ON THIS LINE.
I. ON THE LEFT SIDE OF THE FORM, RECORD EACH PICKUP FROM YOUR YELLOW RECEIPTS.
FOLLOW THE ARROWS TO THE RIGHT AND LIST THE TOTAL PICKUPS AMOUNT ON LINE I.
J. ADD THE TOTALS OF ALL COUPONS AND RECORD ON THIS LINE. TO IDENTIFY: COUPONS
WILL HAVE "COUPON" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
K. ADD THE TOTALS OF LINES A THROUGH J AND RECORD ON THIS LINE.
L. WRITE THE AMOUNT OF THE TILL/BANK THAT YOU CHECKED OUT AT THE BEGINNING OF
YOUR SHIFT.
N. SUBTRACT LINE L FROM LINE K.
SIGN YOUR NAME ON THE PREPARED BY LINE.
CASHIER NAME_________________________________________ BAG # |_|_|_|_|_|
SOC SEC # |_|_|_|_|_|_|_|_|_| IBM # |_|_|_|_|
- -----------
ROLLED COIN
- -----------
VALUE QTY TOTAL
----- --- -----
PENNIES $.50 x ____ = $________.__ LOOSE COIN RECEIPT _________.__ A
NICKELS $ 2. x ____ = $________.__ FINAL CURRENCY _____________.__ B
DIMES $ 5. x ____ = $________.__ PERSONAL CHECKS ____________.__ C
QUARTERS $ 10. x ____ = $________.__ TRAVELERS CHECKS ___________.__ D
TOTAL ROLLED COIN -> -> -> -> ROLLED COIN ________________.__ E
PICKUP # 1 __________________.__ CREDIT CARDS _______________.__ F
PICKUP # 2 __________________.__ ACCTS RECEIVABLE ___________.__ G
PICKUP # 3 __________________.__ BUGS BUNNY MONEY ___________.__ H
TOTAL PICKUPS -> -> -> -> TOTAL PICKUPS ______________.__ I
COUPONS ____________________.__ J
TOTAL DEPOSIT_______________.__ K
(ADD A THROUGH J)
LESS: TILL/BANK ___________.__ L
NET DEPOSIT ________________.__ M
(K-L)
PREPARED BY __________________________________________________
- --------------------------------------------------------------------------------
CASHIERS --- DO NOT FILL OUT BELOW THIS LINE
- --------------------------------------------------------------------------------
GUEST LEFT CHANGE ______________________.__ O TOTAL ADJUSTED SALES ______.__ N
ADJUSTED NET DEPOSIT (M-O) _____________.__ P
CASH VARIANCE (P-N) ____________________.__ OVER/SHORT _________________.__
(M-N)
TRANSFER 1 TRANSFER 2 TRANSFER 3
---------- ---------- ----------
SALES SALES SALES
TO UNIT _______________ TO UNIT _______________ TO UNIT _______________
GROSS GROSS GROSS
SALES ______________.__ SALES ______________.__ SALES ______________.__
LESS: LESS: LESS:
REFUNDS ____________.__ REFUNDS ____________.__ REFUNDS ____________.__
LESS: LESS: LESS:
VOIDS ______________.__ VOIDS ______________.__ VOIDS ______________.__
ADJUSTED ADJUSTED ADJUSTED
SALES ______________.__ SALES ______________.__ SALES ______________.__
TOTAL (TRANSFER 1+2+3)
GROSS
SALES ______________.__
LESS:
REFUNDS ____________.__
LESS:
VOIDS ______________.__
ADJUSTED
SALES ______________.__
MANUAL
SALES TAX __________.__
TOTAL #
VOIDS _________________
CONTROL CLERK________________ CC AGENT ___________________
WHITE COPY - CSH CNTRL YELLOW - CSH CNTRL PINK - INT CNTRL
<PAGE>
------------------
Your Check
Is Welcome
TeleCheck(R)[LOGO]
------------------
PROCEDURE MANUAL
<PAGE>
INDEX
WHAT IS TELECHECK.........................................................Page 1
EXAMPLE OF CHECK..........................................................Page 2
WHAT DO I DO?.............................................................Page 3
COMPANY CHECKS............................................................Page 4
SHOULD I TAKE THE CHECK?..................................................Page 5
HOW DO I REQUEST WARRANTY PAYMENT?........................................Page 6
HOW DO I READ MY WARRANTY LEDGER?.........................................Page 7
HOW DO I READ MY TELECHECK INVOICE?.......................................Page 8
INVOICE EXPLANATION.......................................................Page 8
<PAGE>
TeleCheck(R)[LOGO] TeleCheck Chicago
- ------ 999 E. TOUHY AVENUE
I45936 SUITE #225
- ------ DES PLAINES, IL 60018
YOUR LOCATION CODE (708) 390-5400
What is TeleCheck(R)?
TELECHECK Services, Inc. is an international franchise organization with
operations throughout the United States, Canada, Hong Kong, Puerto Rico,
Australia, and New Zealand. It is the nation's largest check acceptance service.
TELECHECK will honor any check from any bank in the United States or Canada. In
addition, we warrant our information. If an approved check comes back to you
dishonored by the bank, we will reimburse you the full amount of that check up
to your pre-established limit,
What are the benefits?
o Increases the traffic flow into your store.
o Increases the dollar value of transactions.
o Turns strangers into regular customers.
o Improves customer relations.
o Saves time.
With TELECHECK you can serve your customers in a way that they appreciate. You
give them an added service and convenience. This is accomplished by providing
instant information which will support your decision to accept a check.
Response time for inquiries is a matter of seconds, whether by automated
response, by direct terminal access, or operator assisted.
The primary purpose of the TELECHECK system is to build your business.
TELECHECK can be a supplement for you in your non-cash payment methods.
1
<PAGE>
YOUR STORE | ID TYPE AND Draw a 'cross' in the upper right-
CODE | NUMBER hand corner of the check. Fill in the
- ------------------------------ proper information.
APPROVAL | PHONE
CODE | #
[GRAPHIC OF SAMPLE CHECK]
2
<PAGE>
Before calling TeleCheck ...
1. Make sure check is drawn on a U.S. or Canadian bank.
2. Check must be first party, payable to your business.
3. Date of check must be the current date.
4. Written and numeric amounts must agree.
5. Check writer's name and bank account number must be imprinted by the check
manufacturer.
6. The signature in the signature block must not be substantially different
from the name imprinted on the check.
7. Complete address is written on check (if not bank imprinted). Complete
address includes: full street address, city, state and zip code. P.O. Box
numbers or General Delivery are not valid addresses. Rural Routes are
acceptable.
8. Check writer's phone number is written on check, including area code.
9. An acceptable ID must be obtained from the checkwriter and the ID type and
number written legibly on the check.
10. One check per business transaction, sale or service performed. Checks for
cash will not be warranted.
Acceptable ID types
(Only One Required)
A. Driver's License:
Permanent, Unexpired License from any state or Canada.
B. Valid and Unexpired Major Credit Card:
MasterCard Carte Blanche
Visa Diners Club
American Express Discover
3
<PAGE>
Company Checks
The same procedures listed on the previous page apply to a Company Check as well
as a Personal Check. One significant difference is that the signature on a
Company Check will not match the bank imprinted name.
On Company Checks, rather than using an ID, you will be obtaining an
authorization using the "zip-plus" method. (In place of an ID, use the 5-digit
zip code plus any numerics in the street address up to a maximum of thirteen
numbers). Please refer to the call-in procedures for more detailed instructions.
If referred to a live operator when calling in a Company Check, you must alert
the operator that it is in fact a Company Check.
Calling TeleCheck
TELECHECK operates 7 days a week - 24 hours a day.
The check writer must be present until your call to TELECHECK is complete. With
the check and I.D. in hand, telephone TELECHECK by referring to the sticker by
your phone.
Give the following information.
Location Code
ID Type and Number [GRAPHIC OMITTED]
Exact Amount of Check
Under certain conditions additional information may be required.
4
<PAGE>
Should I take the check?
Operator will reply with one of the following codes:
FOUR DIGIT Accept the check. This four digit number means the
APPROVAL: TELECHECK warranty will apply, provided all procedures
have been followed. The approval number must be written
on the check.
CODE 2: Information only. The TELECHECK warranty does not apply.
TELECHECK has no negative information on file, but the
inquiry did not meet our requirements. Your company policy
prevails. The most common reason for a Code 2 is because
the check writer does not have an acceptable I.D. type.
CODE 4: TELECHECK has negative information on the check writer.
The warranty does not apply. Extend a customer referral
card and ask the customer to pay cash or use a credit
card. Do not allow the check writer to talk to the
operator. The business office will answer all inquiries.
CUSTOMER Dear Customer:
REFERRAL
CARD We are sorry that we cannot accept your check at this time
because TeleCheck(R) will not approve it.
We encourage you to contact TeleCheck so they can explain
the reasons for their actions and work with you to resolve
the situation.
Please contact:
Consumer Service Manager
(708)390-5450
8:00 a.m.-5:00 p.m.
Monday-Friday
TeleCheck Chicago
999 E. TOUHY AVENUE
SUITE #225
DES PLAINES, IL 60018
(c) TeleCheck Services, Inc. 1987 TMI #1079
5
<PAGE>
Qualified checks for which a four digit approval response has been given by
TeleCheck are warranted. If the check has been returned by the bank to you
unpaid, follow these instructions to receive payment.
1. Review the check to determine if it complies with all nine TeleCheck
procedures outlined on your Check Purchase Request Form. (complete both
sides of a Check Purchase Request Form/Assignment of Uncollectable check
for EACH check submitted for payment.)
2. Mail both the check and Assignment of Uncollectable Check Form to
TeleCheck. Please keep the receipt for your records. (It is also wise to
keep a photostatic copy of the front and back of the check for your
records.)
[GRAPHIC OMITTED]
What is a valid warranty claim?
TeleCheck's rules are simple and easy to follow. These rules are firm and will
not be altered. A check must pass the nine rules before it will be considered a
valid warranty claim.
1. U.S. or Canadian first party check (company or personal) or credit union
share draft. Name imprinted by the bank is not altered. If P.O. Box is
imprinted or address is not imprinted by the bank, street address must be
taken from identification and written on the check.
2. Telephone number either imprinted or written. (Home or Business.)
3. Permanent valid driver's license or other approved I.D. must have been
used for identification and I.D. type and number must be written on the
check. If the address on the check does not match the address on the I.D.,
both addresses must be placed on the check. If driver's license, give
state of issue.
4. The signature in the signature block must not be substantially different
from the name imprinted on the check.
5. Date of inquiry must be the same as date on check.
6. Amounts shown in words and figures must be in agreement.
7. Subscriber must be current in payment to TeleCheck before warranty claim
checks will be issued.
8. Checks warranted by TeleCheck MUST BE IN TELECHECK'S OFFICE WITHIN 30 DAYS
FROM DATE ON CHECK.
9. Subscriber shall have received an Approval Code response and met the above
requirements.
What are the most common reasons for a warranty claim not being accepted?
1) NO PHONE NUMBER ON CHECK.
2) P.O. BOX ONLY (ADDRESS NOT WRITTEN IN)
3) OVER 30 DAYS OLD
4) CHECK NOT FIRST PARTY
5) NAME SIGNED IS NOT THE SAME AS NAME IMPRINTED.
6) I.D. ACCEPTED IS NOT THAT OF THE CHECK SIGNER.
6
<PAGE>
[Illegible]
warranty claim?
EXCHANGE BILLING [GRAPHIC OMITTED]
Warranty claims received by TeleCheck between the first and end of the month
will be acknowledged on the following month's invoice.
Reimbursements will be issued approximately 10 days from date of receipt of
invoice payment. Warranty checks can be released only when your TeleCheck
charges are current and paid in full.
[GRAPHIC OMITTED]
How do I read my warranty ledger?
Each month TeleCheck will list all the warranty claims received during the
previous month on your Warranty Ledger.
[GRAPHIC OMITTED]
OVER WARRANTY LIMIT
If the check you submitted was over the warranty limit, the face amount of the
check will be listed under the AMOUNT column and the amount that TeleCheck
will reimburse you will be listed under the WARRANTY column.
RETURN TO STORE
Checks which cannot be warranted will be returned. The check will be listed on
the Warranty Ledger. However, the WARRANTY AMOUNT will be zero and the codes
will explain why it was returned.
CODES
Next to each check there is a series of codes. Please refer to the "Explanation
of Codes" at the bottom of the Warranty Ledger to describe the status of
each claim submitted.
WARRANTY TOTAL
You can determine the amount of warranty you will receive by looking at the
"WARRANTY TOTAL" at the bottom of the Warranty Ledger. This total also appears
under the loss prevention heading on your invoice.
PAID AT THE STORE
Although we discourage this practice, the check writer will occasionally pay you
directly for the bad check after you have submitted your warranty claim to
TeleCheck. When this occurs, you must notify TeleCheck that payment has been
made in order to release the customer from our negative files.
7
<PAGE>
Warranty Ledger
[GRAPHIC OMITTED]
How do I read my Telecheck invoice
- --------------------------------------------------------------------------------
You will receive a monthly invoice from Telecheck which will reflect the billing
activity for the full month. Payment is due upon receipt of invoice.
SECTION 1
MAILING ADDRESS AND CALL STATISTICS
[GRAPHIC OMITTED]
8
<PAGE>
SECTION 2
LOCATION STATISTICS AND OVERALL BILLING
[GRAPHIC OMITTED]
SECTION 3
REMITTANCE COPY
[GRAPHIC OMITTED]
9
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
This second addendum to the original agreement dated the 1st day of April,
1998 by and between SIX FLAGS GREAT AMERICA, a division of Six Flags Theme
Parks, Inc., a Delaware Corporation, having offices at 542 North Route 21,
Gurnee, IL ("Six Flags") and RX TECHNOLOGY, a corporation having offices at P.O.
Box 9112, Mandeville, LA 70470 ("Lessee").
The following changes will supercede the original clauses in the agreement
dated the 1st day of April, 1998.
A. ORIGINAL CLAUSE SECTION 2.A.:
RX Technology agrees to operate the Concession during the hours and days
including Sundays and holidays, that the Park is open for business in accordance
with schedules prepared by Six Flags which Six Flags may modify in Six Flags'
sole discretion at any time on a twenty-four (24) hours notice to RX Technology
and such additional hours as are required by Six Flags (the "Operating Hours").
RX Technology acknowledges that Six Flags will suffer great harm if RX
Technology breaches the agreement set forth in this subsection, the amount of
which would be difficult to determine. Therefore, RX Technology agrees to pay
Six Flags liquidated damages of $50.00 for each Park operating day that RX
Technology opens the Concession thirty (30) minutes after the opening time of
the Park's Operating Hours and/or closes the Concession thirty (30) minutes
before the time of the Park's Operating Hours upon notice thereof by Six Flags
and such liquidated damages shall be increased an additional $50.00 for each
successive violation of Park Operating Hours upon notice thereof by Six Flags,
up to a maximum liquidated damages amount of $500.00.
NEW CLAUSE:
RX Technology agrees to operate the Concession during the hours and days,
including Sundays and holidays that the Park is open for business in accordance
with schedules prepared by Six Flags which Six Flags may modify in Six Flags'
sole discretion at any time on a twenty-four (24) hours notice to RX Technology
and such additional hours as are required by Six Flags (the "Operating Hours").
RX Technology acknowledges that Six Flags will suffer great harm if RX
Technology breaches the agreement set forth in this subsection, the amount of
which would be difficult to determine. Therefore, RX Technology agrees to pay
Six Flags liquidated dames of $500.00 for each Park operating day that RX
Technology opens the Concession thirty (30) minutes after the agreed opening
time of the Concession and/or closes the Concession thirty (30) minutes before
the agreed upon closing time. Upon notice thereof by Six Flags and such
liquidated damages shall be increased an additional $750.00 for each successive
violation of Park Operating Hours thereof by Six Flags.
B. ORIGINAL CLAUSE SECTION 2.B.:
RX Technology agrees to submit samples of all products detailed plans,
specifications, drawings and other information with respect to Goods for sale to
be made available to customers in the Park in connection with the Concession,
for Six Flags' approval in advance of sale of the same. RX Technology agrees to
makes such changes to the Goods, at its sole cost and expense, as Six Flags
shall reasonably determine. RX Technology also agrees to coordinate with the
Park in coding each of RX Technology's Goods and inputting the same in the cash
register for tracking purposes. To the extent requested by Six Flags, RX
Technology shall comply with Six Flags' point of sale and other information
system requirements.
1
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
NEW CLAUSE:
RX Technology agrees to submit samples of all products, detailed plans,
specifications, drawings and other information with respect to Goods for sales
to customers in the Park in connection with the Concession, for Six Flags'
approval in advance of sale of the same. RX Technology agrees to make such
changes to the Goods, at it sole cost and expense, as Six Flags shall reasonably
determine.
C. ADDITIONAL CLAUSE SECTION 2.C.IV:
(iv) RX Technology agrees that any merchandise/product that are held for
the Guest by RX Technology must be taken to Guest Relations at Park closing each
operating day for the Guest to pick up. Failure to do so will result in a
$100.00 fine for each occurrence that Six Flags must retrieve product held by RX
Technology.
D .ORIGINAL CLAUSE 2.E. (vi):
RX Technology agrees to use best efforts to cause its employees to attend
Park Training/orientation programs as may be required by Six Flags and comply
with Park rules and regulations, including without limitation submission to drug
testing, as may be required. RX Technology further agrees to cause its employees
to wear such uniforms as shall be approved in advance by Six Flags, if Six Flags
provides said uniforms. RX Technology agrees that all such uniforms shall be
returned in good condition, normal wear and tear expected, to Six Flags at the
end of Term. RX Technology agrees to pay Six Flags for any damage to, or loss
of, such uniforms. Six Flags reserves the right to set off the amounts thereof
from RX Technology's share of Net Revenues.
NEW CLAUSE:
RX Technology agrees to use its best efforts to cause its employees to
attend Park training/orientation programs as may be required by Six Flags and
comply with Park rules and regulations, including without limitation submission
to drug testing, as may be required. Pending availability of desired Park
Orientation date and time, no RX Technology employees will be scheduled for Park
Orientation without five days written notice from RX Technology.
E. ADDITIONAL CLAUSE SECTION 2.E.(xii):
(xii) RX Technology has the option to provide costumes for RX Technology's
employees. Six Flags will approve the costumes provided by RX Technology. RX
Technology is to submit costume to Six Flags for approval no later then March
17, 2000. RX Technology also has the option to purchase park approved costumes
from Six Flags for RX Technology's employees. Park Shoes worn by RX Technology's
employees are to be solid black athletic shoes with no other colors within the
shoe body. All costume charges will be deducted from RX Technology's weekly Net
revenue. It will be the responsibility of RX Technology to collect costume
charges from RX Technology's employees.
2
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
F. ORIGINAL CLAUSE SECTION 5.B.:
"Net Revenue" means gross revenue of the Concession during the applicable
period less the sales tax paid or payable in respect thereto or otherwise paid.
RX Technology agrees that Six Flags shall have the right to deduct the following
from RX Technology's share of the Net Revenue: (ii) cash shortages, (iii) credit
card, check processing and other transaction costs and charges, including charge
backs and return check amounts and fees related thereto, (iv) the cost of goods
taken from Six Flags' warehouse, to the extent permitted by Six Flags, or
otherwise and not paid for (v) the cost of leased Park equipment, if any, each
during the applicable period (vi) the cost associated with the damage or loss of
uniforms as set forth in more detail in Section 2G (vii) the cost of any bill or
charge which is the basis or which may be the basis for a lien against the
Facility as set forth in more detail in Section 9A (vii) hereof.
NEW CLAUSE:
"Net Revenue" means gross revenue of the Concession during the applicable
period less the sales tax paid or payable in respect thereto or otherwise paid.
RX Technology agrees that Six Flags shall have the right to deduct the following
from RX Technology's share of the Net Revenue: (i) cash shortages, (ii) credit
card, check processing and other transaction costs and charges, including charge
backs and return check amounts and fees related thereto, (iii) the cost of goods
taken from Six Flags' warehouse, to the extent permitted by Six Flags, or
otherwise and not paid for (iv) the cost of leased Park equipment, if any, each
during the applicable period (v) the cost of any bill or charge which is the
basis or which may be the basis for a lien against the Facility as set forth in
more detail in Section 9, (vi) cost associated with uniforms as set forth in
more detail in Section 2.
This Addendum (including any and all exhibits and schedules hereto)
constitutes the second addendum between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
clauses and undertakings of the parties pertaining to the subject matter hereof.
This Addendum may not be modified except by written instrument duly executed by
parties hereto.
3
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
IN WITNESS WHEREOF, this RX TECHNOLOGY Agreement has been duly executed by
the parties hereto on the day and year first herinabove written.
SIX FLAGS GREAT AMERICA,
(a division of Six Flags Theme Parks, Inc.)
By: /s/ James H. Wintrode
---------------------------------------
James H. Wintrode
Vice President and General Manager
RX Technology:
By: /s/ Donald Rex Gay
---------------------------------------
Rex Gay
President/Owner
4
<PAGE>
Supplement - Exhibit B
Six Flags Great America Cashier Procedures
Till Check-out
The following will be needed at the time of till check-out:
o Employee I.D.
o Unit name and number
Tills will be checked out at the Merchandise window. Cashiers will sign for a
cash bag on the first available line under their unit number on the Till
Check-out Log.
The amount of cash received should match the amount posted on the top of the
Till Check-out Log. This amount must be verified before leaving Cash Control.
Any discrepancies should be reported at this time. Discrepancies not reported
before the cashier leaves Cash Control will not be corrected.
Cashiers must complete the top part of the Cash Control Sheet including name,
the till number checked out and the date.
Currency Pick Up
Periodically, and authorized Cash Control representative (verified by the
presentation of an ID) may pick up excess currency from a unit. When this is
done, the cashier will receive the pink copy of the Pick Up Slip as
verification. It is the cashier's responsibility to verify that this slip is
complete with the unit number, till number, date, time and amount picked up.
This slip should be signed by both the cashier and the Cash Control
representative.
Till Check-in
The following items must be turned in with all tills:
o An "X" or "Z" read
o Pink and Yellow copies of the Register Balance Form. The RBF should be
completed prior to leaving the unit.
o Journal Tapes marked with till number, and the name and number of all
units worked in
o Checks and travelers checks marked with till number and endorsement stamp
o Bugs Bunny Money, Scrip Money, or other vouchers marked with till number
o Credit Slips signed by the guest and marked with till number
o Draft Capture
o Pick up slips
o Currency, faced and stacked neatly
o Coin, bagged
o Void Log approved by Supervisor
o Cash Control Sheet, approved by Supervisor
Tills are to be locked before leaving the unit to return them to Cash Control.
Cashiers must have their till audited by Cash Control at the end of their shift.
A completed copy of the RBF will be returned to the Lessee unit on a daily
basis.
<PAGE>
REGISTER BALANCE FORM (RBF)
DO NOT USE RED INK - PRESS FIRMLY WHEN WRITING DATE ______________
INSTRUCTIONS
PRINT TOP PORTION. FILL IN DATE, CASHIER NAME, BAG#, SS#, AND IBM#
FILL IN LINES C THROUGH J WHILE WAITING IN LINE.
A. RECORD THE TOTAL AMOUNT FROM THE LOOSE COIN RECEIPT ON THIS LINE.
B. RECORD THE TOTAL AMOUNT FROM THE FINAL CURRENCY RECEIPT ON THIS LINE.
C. ADD THE DOLLAR AMOUNTS OF ALL PERSONAL CHECKS AND RECORD ON THIS LINE.
D. ADD THE DOLLAR AMOUNTS OF ALL TRAVELER CHECKS AND RECORD ON THIS LINE.
E. ON THE LEFT SIDE OF THE FORM, LIST THE QUANTITY OF EACH ROLLED COIN TYPE
AFTER THE x. MULTIPLY THE QUANTITY TIMES THE VALUE OF EACH ROLL AND WRITE THE
RESULT IN THE TOTAL COLUMN. ADD THE TOTAL COLUMN DOWN. FOLLOW THE ARROWS TO THE
RIGHT, AND LIST THE TOTAL ROLLED COIN ON LINE E.
F. RECORD THE TOTAL CREDIT CARD AMOUNT FROM YOUR CLERK ID REPORT.
G. ADD THE TOTALS OF ALL ACCT REC AND RECORD ON THIS LINE. TO IDENTIFY: ACCT
REC WILL HAVE "ACCT REC" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
H. ADD ALL BUGS BUNNY MONEY TOGETHER AND RECORD ON THIS LINE.
I. ON THE LEFT SIDE OF THE FORM, RECORD EACH PICKUP FROM YOUR YELLOW RECEIPTS.
FOLLOW THE ARROWS TO THE RIGHT AND LIST THE TOTAL PICKUPS AMOUNT ON LINE I.
J. ADD THE TOTALS OF ALL COUPONS AND RECORD ON THIS LINE. TO IDENTIFY: COUPONS
WILL HAVE "COUPON" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
K. ADD THE TOTALS OF LINES A THROUGH J AND RECORD ON THIS LINE.
L. WRITE THE AMOUNT OF THE TILL/BANK THAT YOU CHECKED OUT AT THE BEGINNING OF
YOUR SHIFT.
N. SUBTRACT LINE L FROM LINE K.
SIGN YOUR NAME ON THE PREPARED BY LINE.
CASHIER NAME_________________________________________ BAG # |_|_|_|_|_|
SOC SEC # |_|_|_|_|_|_|_|_|_| IBM # |_|_|_|_|
- -----------
ROLLED COIN
- -----------
VALUE QTY TOTAL
----- --- -----
PENNIES $.50 x ____ = $________.__ LOOSE COIN RECEIPT _________.__ A
NICKELS $ 2. x ____ = $________.__ FINAL CURRENCY _____________.__ B
DIMES $ 5. x ____ = $________.__ PERSONAL CHECKS ____________.__ C
QUARTERS $ 10. x ____ = $________.__ TRAVELERS CHECKS ___________.__ D
TOTAL ROLLED COIN -> -> -> -> ROLLED COIN ________________.__ E
PICKUP # 1 __________________.__ CREDIT CARDS _______________.__ F
PICKUP # 2 __________________.__ ACCTS RECEIVABLE ___________.__ G
PICKUP # 3 __________________.__ BUGS BUNNY MONEY ___________.__ H
TOTAL PICKUPS -> -> -> -> TOTAL PICKUPS ______________.__ I
COUPONS ____________________.__ J
TOTAL DEPOSIT_______________.__ K
(ADD A THROUGH J)
LESS: TILL/BANK ___________.__ L
NET DEPOSIT ________________.__ M
(K-L)
PREPARED BY __________________________________________________
- --------------------------------------------------------------------------------
CASHIERS --- DO NOT FILL OUT BELOW THIS LINE
- --------------------------------------------------------------------------------
GUEST LEFT CHANGE ______________________.__ O TOTAL ADJUSTED SALES ______.__ N
ADJUSTED NET DEPOSIT (M-O) _____________.__ P
CASH VARIANCE (P-N) ____________________.__ OVER/SHORT _________________.__
(M-N)
TRANSFER 1 TRANSFER 2 TRANSFER 3
---------- ---------- ----------
SALES SALES SALES
TO UNIT _______________ TO UNIT _______________ TO UNIT _______________
GROSS GROSS GROSS
SALES ______________.__ SALES ______________.__ SALES ______________.__
LESS: LESS: LESS:
REFUNDS ____________.__ REFUNDS ____________.__ REFUNDS ____________.__
LESS: LESS: LESS:
VOIDS ______________.__ VOIDS ______________.__ VOIDS ______________.__
ADJUSTED ADJUSTED ADJUSTED
SALES ______________.__ SALES ______________.__ SALES ______________.__
TOTAL (TRANSFER 1+2+3)
----------------------
GROSS
SALES ______________.__
LESS:
REFUNDS ____________.__
LESS:
VOIDS ______________.__
ADJUSTED
SALES ______________.__
MANUAL
SALES TAX __________.__
TOTAL #
VOIDS _________________
CONTROL CLERK________________ CC AGENT ___________________
WHITE COPY - CSH CNTRL YELLOW - CSH CNTRL PINK - INT CNTRL
<PAGE>
Exhibit 10.11
Six Flags Great America
Spacely Sprockets
<PAGE>
RX TECHNOLOGY AGREEMENT
THIS RX TECHNOLOGY AGREEMENT is made as of this 1st day of April, 1998, by
and between SIX FLAGS GREAT AMERICA, a division of Six Flags Theme Parks Inc., a
Delaware Corporation, having offices at 542 North Route 21, Gurnee, IL ("Six
Flags") and RX Technology a corporation, having offices at P.O. Box 9112,
Mandeville, LA 70470 ("Lessee").
WITNESSETH
WHEREAS, Six Flags owns, operates or manages the theme amusement facility
which is open to the general public and known as Six Flags Great America in
Gurnee (the "Park").
WHEREAS, RX Technology desires to operate a retail concession known as RX
Technology (the "Concession") to sell photographs of guests riding "ShockWave,
Eagle, Kiddie Coaster" (the "Goods") in the Park as set forth herein;
WHEREAS, Six Flags desires to grant RX Technology a license to operate the
Concession in the Park, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, Six Flags and RX Technology agree as follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX Technology a license to operate the Concession in the Park
in such locations of the Park as is set forth on Exhibit A-1 hereto during the
period of time (the "Term") commencing April 1, 1998 (the "Commencement Date")
and terminating at the end of the Park's 1999 operating season. In the event
that RX Technology meets or exceeds a year to date gross per capita two year
average of $.16 of the locations as set forth, an Exhibit A-1 at the end of the
1999 operating season, the existing Agreement will be extended through the 2000
operating season (the "Termination Date").
2. OPERATION.
A. Hours of Operation.
RX Technology agrees to operate the Concession during the
hours and days, including Sundays and holidays, that the Park is open for
business in accordance with schedules prepared by Six Flags which Six Flags may
modify in Six Flags' sole discretion at any time on twenty-four (24) hours
notice to RX Technology and such additional hours as are required by Six Flags
(the "Operating Hours"). RX Technology acknowledges that Six Flags will suffer
great harm if RX Technology breaches the agreement set forth in this subsection,
the amount of which would be difficult to determine. Therefore, RX Technology
agrees to pay Six Flags liquidated damages of $50.00 for each Park operating day
that RX Technology opens the Concession thirty (30) minutes after the opening
time of the Park's Operating Hours and/or closes the Concession thirty (30)
minutes before the closing time of the Park's Operating Hours upon notice
thereof by Six Flags and such
<PAGE>
liquidated damages amount shall be increased an additional $50.00 for each
successive violation of Park Operating Hours upon notice thereof by Six Flags,
up to a maximum liquidated damages amount of $500.00.
B. Approval of Goods.
RX Technology agrees to submit samples of all products
detailed plans, specifications, drawings and other information with respect to
Goods for sale to be made available to customers in the Park in connection with
the Concession, for Six Flags' approval in advance of sale of the same. RX
Technology agrees to make such changes to the Goods, at its sole cost and
expense, as Six Flags shall reasonably determine. RX Technology also agrees to
coordinate with the Park in coding each of RX Technology's Goods and inputting
the same in the cash resister for tracking purposes. To the extent requested by
Six Flags, RX Technology shall comply with Six Flags' point of sale and other
information systems requirements.
C. Price of Goods.
(i) RX Technology agrees to submit to Six Flags for its review
and approval, a retail price list of all RX Technology's Goods for sale to
customers of the Park (the "Approved Price List") at least two (2) weeks prior
to Commencement Date or any proposed change in any previously approved price
list. RX Technology agrees to make changes to the Approved Price List as Six
Flags shall reasonably request. RX Technology shall be responsible for all costs
and expenses associated with production and printing of the Price List and any
changes thereto, and such costs shall not be deducted from Net Revenue (as
hereinafter defined).
(ii) RX Technology agrees to make changes to the Approved
Price List (the "Revised Price List") at any time during the Term if the parties
mutually determine, that an adjustment is appropriate. RX Technology shall be
responsible for all costs and expenses associated with production and printing
of the Revised Price List, and such costs shall not be deducted from Net Revenue
(as hereinafter defined).
(iii) RX Technology agrees that it shall not make its Goods
available to any party free of charge or at a discounted price unless RX
Technology is engaging in sampling activities approved by Six Flags, etc.
Notwithstanding the foregoing, RX Technology agrees to offer such discounts on
its Goods as Six Flags shall require and as Six Flags shall offer in locations
owned by Six Flags. RX Technology shall, at all times, charge customers,
including without limitation, family members, employees and business associates,
the price set forth on the Approved Price List for its Goods except as otherwise
expressly set forth herein.
D. Methods of Sale; Payment and Return Policies.
(i) The Goods shall be available for sale to customers of the
Park as follows: at point of purchase (each, a "Method of Sale"). A Method of
Sale shall be discontinued at the discretion of Six Flags.
(ii) The following forms of payment for RX Technology Goods
will be accepted: MasterCard, Visa, American Express and Discover credit cards
(collectively, the "Credit
2
<PAGE>
Cards"), checks, and cash (each, a "Form of Payment"). Six Flags may, in its
sole discretion, discontinue and, if applicable, require RX Technology to
discontinue any Form of Payment for Goods sold hereunder. Conversely, Six Flags
may, in its sole discretion, require RX Technology to accept such additional
forms of payment as may be accepted by Six Flags in the future; and in so doing,
RX Technology agrees to submit to such reasonable rules/restrictions with
respect thereto. Payment for the Goods shall be in accordance with the
provisions of Exhibit B - Payment/Return Agreement, which is attached hereto and
incorporated herein.
E. Reports and Records.
(i) Upon commencement of RX Technology's daily operations, RX
Technology shall pick up a cash till from the Park's cash control facility, and
within one (1) hour after the close of each Park day, RX Technology shall
deliver to Park's cash control facility the following: (a) remaining cash till,
(b) a daily report of the day's operations on Six Flags' "Daily Sales Report"
form, and (c) the day's daily gross receipts, including without limitation
credit card sales drafts, credit memos and all other materials evidencing sales
transactions during such day (collectively, the "Deposits"). Such Deposits are
received subject to audit by Six Flags as set forth herein and Six Flags may
correct and credit or debit RX Technology for any inaccuracies or errors in RX
Technology computation of Deposits. Six Flags may refuse to accept or revoke
acceptance of any Deposits, including any sales drafts or credit adjustments,
which are illegible or which fail to comply with the terms of this Agreement,
including, but not limited to, any federal or state law.
(ii) RX Technology shall retain copies of sales drafts and
other materials evidencing sales transactions related to sale of Goods for the
Term of the Agreement from date of transaction. This Section shall survive the
termination of the Agreement.
F. Compliance with Laws.
RX Technology agrees that at all times during the Term it
shall be in compliance with all laws, rules and regulations with respect to
operation of the Concession in the Park, including, without limitation, all
environmental and employment laws, rules and regulations. RX Technology agrees
that it shall be responsible for obtaining, at its sole cost and expense, all
licensing and/or permits required in connection with operation of the Concession
in the Park.
G. Employees.
(i) RX Technology acknowledges that it has no authority to
employ persons on behalf of Six Flags, and no employees or agents of RX
Technology shall be deemed to be agents or employees of Six Flags.
(ii) Without Six Flags' prior written consent, RX Technology
shall not, until after the second anniversary of the end of the Term, solicit
for the purpose of hiring or employ, directly or indirectly, any employee
employed by, or independent contractor engaging in business with, Six Flags, in
each case, during the Term. This subsection of the Agreement shall survive until
the second anniversary of the end of the Term.
3
<PAGE>
(iii) RX Technology represents and warrants that it shall, at
its sole cost and expense, recruit, train, supervise and furnish the Goods of at
least three (3) persons to operate the and perform Goods in connection with the
Concession as set forth in Exhibit C attached hereto and incorporated herein
("RX Technology Employees") during Operating Hours. RX Technology acknowledges
that Six Flags will suffer great harm if RX Technology breaches the agreement
set forth in this subclause, the amount of which would be difficult to
determine. Therefore, RX Technology agrees to pay Six Flags liquidated damages
of $250.00 for each Park operating day that RX Technology fails to furnish the
Goods of three (3) trained persons to operate the Concession and/or fails to
operate the Concession during the Operating Hours.
(iv) RX Technology shall be fully responsible for all RX
Technology's Employees, including without limitation, responsibility for all
salaries and other compensation, withholding taxes, worker's compensation
insurance, union dues, if applicable, and other required payments in connection
with such employees and shall be in compliance with all laws, rules and
regulations with respect thereto.
(v) Each prospective employee of RX Technology shall complete
an employment application, the form of which must be approved by Six Flags,
prior to beginning work in the Park.
(vi) RX Technology agrees to use best efforts to cause its
employees to attend Park training/orientation programs as may be required by Six
Flags and comply with Park rules and regulations, including without limitation
submission to drug testing, as may be required. RX Technology further agrees to
cause its employees to wear such uniforms as shall be approved in advance by Six
Flags, if Six Flags provides said uniforms. RX Technology agrees that all such
uniforms shall be returned in good condition, normal wear and tear excepted, to
Six Flags at the end of Term. RX Technology agrees to pay Six Flags for any
damage to, or loss of, such uniforms. Six Flags reserves the right to set off
the amounts thereof from RX Technology share of Net Revenues.
(vii) RX Technology agrees to verify, at its sole cost and
expense, the references of RX Technology Employees, including without
limitation, prior positions of employment, reasons for leaving prior positions,
age, education, criminal records, immigration status, and right to work in the
United States and use due diligence to determine if any of RX Technology
Employees have provided false information or omitted significant information
with respect to their backgrounds and/or prior employment.
(viii) RX Technology represents and warrants that it shall
not, to RX Technology knowledge, employ any person to work in the Park who has a
criminal history without Six Flags' knowledge and approval with respect to said
employment. Personality Portrait's knowledge, for the purpose described in the
immediately preceding sentence, is the knowledge that RX Technology would have
known had RX Technology performed a reference check of the type performed by Six
Flags. RX Technology acknowledges that great harm can be suffered by Six Flags
if a RX Technology employee is discovered to have a criminal record that could
have been discovered with a criminal history background check of the type
performed by Six Flags with respect to all prospective employees of Six Flags.
The parties agree that it will be difficult to determine the damages suffered by
Six Flags in the event of RX Technology failure to undertake such background
checks. Accordingly, the parties agree that in the event RX Technology employs
an individual for
4
<PAGE>
work in the Park for whom RX Technology has not, prior to hiring such person,
undertaken a criminal history background check of the type performed by Six
Flags, then RX Technology shall pay Six Flags liquidated damages of $1,000.00
with respect to each such employee of RX Technology regardless of whether the
background check would have revealed any evidence of criminal history.
(ix) At the request of Six Flags, RX Technology shall make
available to Six Flags all information obtained with respect to its employees,
including, without limitation, criminal history background checks.
(x) RX Technology agrees to terminate employment at the Park
for any RX Technology Employee working in the Park who: (a) is subsequently
discovered to have a criminal history and, after being advised of the same, Six
Flags does not approve said employment, (b) fails to comply with Park rules or
(c) made material misstatements or omissions on their employment application. RX
Technology agrees to indemnify Six Flags from and against any claims by RX
Technology Employees arising from or related to such dismissals.
(xi) Six Flags agrees that RX Technology may offer RX
Technology Employees discounts on Park admission and food/merchandise at the
Park that Six Flags offers its employees in accordance with Park policy.
3. FACILITY.
A. Rights/Responsibilities.
(i) In connection with RX Technology operation and management
of the Concession, Six Flags agrees that RX Technology shall be entitled use of
and/or access to: (a) the facility at which the Concession is operated (the
"Facility"), (b) adjacent portions of the Facility, as may be necessary for the
operation and maintenance of the Concession, and (c) common ways and areas
within the Park for incinerator or trash purposes, loading and unloading
supplies and installation, repair and maintenance of Equipment and/or other
elements related to the Concession.
(ii) Six Flags will be responsible for heating, ventilation,
air conditioning, plumbing, electrical, expenses related to the operation of the
Concession in the Facility. Six Flags also agrees to provide the following: (i)
passes to enter the Park for RX Technology Employees in the performance of their
duties, and (ii) Lessees's Employee access to the Park employee parking areas on
a first-come, first-serve basis to be used in the performance of their duties.
(iii) RX Technology will be responsible for cleaning the
Facility and area and removing trash from said areas, the regular maintenance of
the Facility related to the operation of the Concession in the Facility.
B. Construction.
(i) Prior to the construction of the Facility in the Park at
which the Concession is operated, RX Technology will submit its plans to the
Park for approval. These plans
5
<PAGE>
will include exterior and interior finishes as well as RX Technology proposed
signage. RX Technology will design the exterior and interior of the Facility and
the signage so that they will be consistent with the theme of the area of the
Park in which the Facility is located and Six Flags' design requirements policy
(the "Design Policy") (a copy of the Design Policy in effect as of the date
hereof is attached hereto and incorporated herein), as Six Flags may amend from
time to time upon notice to RX Technology.
(ii) RX Technology agrees to obtain all permits, consents,
approvals and clearances with respect to any construction contemplated hereunder
and comply with all laws, rules and regulations with respect thereto, including
Six Flags Maintenance Department rules, and shall secure Six Flags' prior
approval with respect to the following: (a) contractors, subcontractors,
designers, architects and materialmen who will perform work or Goods or supply
materials in connection with the construction of the Facility, (b) dates of
commencement and completion with respect to each phase of the construction of
the Facility and (c) agreements with all contractors, subcontractors, designers
architects and materialmen. RX Technology shall only enter into construction
agreements hereunder which permit assignment to Six Flags and its affiliates.
All construction hereunder shall be made in a good and workmanlike manner.
(iii) Six Flags shall have the right, but not the obligation,
to test and inspect the construction of the Facility. RX Technology agrees, at
its sole cost and expense, to remedy any problems with the Facility, upon Six
Flags' request, including without limiting the foregoing, problems associated
with defective design, engineering, workmanship, failure of factory
construction, materials or any component parts.
(iv) RX Technology shall not place, maintain, or permit to be
placed or maintained on any exterior portion of the Facility or on the interior
side of or immediately adjacent to any glass door, wall or window of said
Facility, or otherwise display outside said Facility in the confines of the
Park, any signs, advertisements, lettering, trade, brand or service name, mark
or logo, neon lights, flood lights, colored lights, flashing lights or other
exterior lighting without prior written consent of Six Flags, which consent may
be granted or withheld in the absolute discretion of Six Flags. RX Technology
shall not use in, on or about said Facility, or elsewhere in the Park, any sound
producing or reproduction equipment audible inside or outside said Facility,
without the prior written consent of Six Flags.
C. Alterations.
Upon approval by RX Technology in writing, Six Flags shall
have the right, but not the obligation, to make alterations, modifications,
additions, improvements or updates, at RX Technology sole cost and expense, to
the Facility and/or the Equipment (as hereinafter defined), as hereinafter
defined (collectively, the "Alterations"); provided, however, that RX Technology
shall have been deemed to approve Alterations if: (i) the Alterations are
reasonably required by Six Flags: (a) for safety, quality or financial control
reasons, or (b) if new technology and improvements are made to the same type of
Facility and/or Equipment in the industry and/or (ii) required by any applicable
laws, rules or regulations. All such Alterations shall be made in a good and
workmanlike manner. RX Technology agrees to pay Six Flags for the reasonable
cost of such Alterations within thirty (30) days of receipt of an invoice
therefor.
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(i) RX Technology agrees to make alterations, modifications,
additions, improvements or updates, at its sole cost and expense (including any
necessary design and engineering expenses), to the Facility and/or the
Equipment, as shall be mutually agreeed to by the parties and in accordance with
the Design Policy.
(ii) RX Technology covenants that it will not make, or suffer
or permit to be made, any Alterations in, on, or to the Facility and/or the
Equipment without first: (a) notifying Six Flags in writing sufficiently in
advance of the commencement thereof to enable Six Flags to post or record or
both, appropriate and effective notices of non-responsibility, (b) obtaining the
written consent of Six Flags thereto, which consent Six Flags shall not
unreasonably withhold provided that the proposed Alterations are of high quality
and in harmony with the overall design and appearance of the Park, and necessary
to operate the Concession in a safe and efficient manner, (c) obtaining the
written approval of Six Flags as to all contractors, subcontractors, and
materialmen who will perform work or Goods or supply materials in connection
therewith and (d) obtaining the written consent of Six Flags with respect to the
proposed commencement and completion date of such Alterations.
D. Maintenance and Repair.
RX Technology agrees to properly maintain and keep in good
repair and condition the Facility and/or the Equipment, at its sole cost and
expense. The Facility and/or the Equipment shall be maintained in keeping with
the themeing and overall aesthetics of the Park. In the event any portion of the
Facility and/or the Equipment is inoperative or a component thereof has failed
or is defective, RX Technology shall repair the same no later than seventy-two
hours of RX Technology knowledge of the same or, in the case of Equipment, RX
Technology shall secure comparable equipment (the "Replacement Equipment") and
deliver the same to the Park until such time as the Equipment is repaired.
Failure of RX Technology to comply with the provisions of this subsection shall
constitute default hereunder.
E. Relocation.
RX Technology agrees that Six Flags shall have the right to
relocate RX Technology to another Facility in the Park, for any reason, provided
that Six Flags agrees to exercise reasonable care to minimize interference in or
to RX Technology operations.
F. Ownership.
(i) It is understood and agreed that the Facility and the
improvements thereto, whether made by RX Technology or Six Flags hereunder,
shall remain the property of Six Flags or RX Technology respectively, except the
trademarks and other indicia of Six Flags, including an Alternate Name
(hereinafter defined) ("Six Flags' Trademarks") and the trademarks of Six Flags'
affiliates, including Warner Bros. And DC Comics ("Affiliates' Trademarks")
shall be the property of Six Flags and its affiliates and in the event of
expiration or termination hereunder Six Flags' Trademarks and its Affiliates'
Trademarks shall be removed therefrom and returned to Six Flags at RX Technology
sole cost and expense.
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(ii) It is further understood and agreed that the improvements
thereto, whether made by RX Technology or Six Flags hereunder, shall remain the
property of Six Flags.
G. Interference with Park/Park Operations.
RX Technology understands that this Agreement may not be
asserted to affect or impede Six Flags' normal Park operations, including
without limitation, upgrading Park equipment, building and/or facilities,
buying/selling Park games or attractions, entering into agreements with other
parties or locating or changing other facilities, equipment, walkways or signage
into or surrounding the Facility, each without the consent of RX Technology. RX
Technology shall have no exclusive rights with respect to the operation of
concessions in the Park similar in nature or type to the Concession.
4. EQUIPMENT.
A. Description.
(i) RX Technology agrees to provide, at its sole cost and
expense, all equipment, supplies, furnishings, displays, and other signage, cash
registers, and any other materials necessary to operate the Concession (the
"Equipment"). Notwithstanding the foregoing, RX Technology agrees that it shall
use only Six Flags provided, credit card processing equipment (collectively,
"Six Flags' Equipment"), as appropriate, for all transactions and, in
consideration therefore, RX Technology shall pay Six Flags no later than thirty
(30) days of receipt of an invoice therefor.
B. Delivery, Installation and Removal.
(i) RX Technology agrees that it shall be responsible for the
shipment, installation and, promptly following the end of the Term, the removal,
of the Equipment, including parts therefor and/or Replacement Equipment (as
hereinafter defined), at its sole cost and expense. RX Technology agrees to
coordinate with Six Flags with respect to the dates and times of shipment and
installation of the Equipment, Replacement Equipment and/or parts therefor.
(ii) Six Flags shall have the right, but not the obligation,
to test and inspect the Equipment and the installation and operation of the
Equipment during the Term. RX Technology agrees, at its sole cost and expense,
to remedy any problems with the Equipment and installation thereof, upon Six
Flags' request, including without limiting the foregoing, problems associated
with defective design, engineering, workmanship, failure of factory
construction, materials or any component parts.
C. Additional Equipment.
RX Technology agrees to install and/or supply additional
Equipment, as determined by mutual agreement of the parties, at no additional
cost to Six Flags.
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5. PAYMENT TO RX TECHNOLOGY.
A. RX Technology shall collect, record and submit the Deposits of
the Concession to Six Flags and Six Flags shall pay RX Technology the following
share of Net Revenues (as hereinafter defined) during each operating season of
the Term as follows:
Year RX Technology % of Net Revenue
---- ------------------------------
1998-1999 62%
2000 62%
B. "Net Revenue" means gross revenue of the Concession during the
applicable period less the sales tax paid or payable in respect thereto or
otherwise paid. RX Technology agrees that Six Flags shall have the right to
deduct the following from RX Technology share of the Net Revenue: (ii) cash
shortages, (iii) credit card, check processing and other transaction costs and
charges, including charge backs and return check amounts and fees related
thereto, (iv) the cost of goods taken from Six Flags' warehouse, to the extent
permitted by Six Flags, or otherwise and not paid for, (v) the cost of leased
Park equipment, if any, each during the applicable period, (vi) the cost
associated with the damage or loss of uniforms as set forth in more detail in
Section 2 G (vi) hereof, and (vii) the cost of any bill or charge which is the
basis or which may be the basis for a lien against the Facility as set forth in
more detail in Section 9 A (vii) hereof.
C. RX Technology share of the Net Revenue will be calculated at the
end of the week. For payment purposes, a week shall be defined as the seven (7)
day period beginning Monday and ending on and including Sunday. Payments shall
be directed as set forth in this Agreement or as RX Technology may otherwise
direct in writing and shall be payable seven (7) days from Six Flags'
calculation thereof. Six Flags shall have no further monetary liability or
obligation to RX Technology. Payments shall be made to RX Technology at the
address indicated in the first paragraph of this Agreement or otherwise as
requested in writing by RX Technology.
D. Notwithstanding Six Flags' deduction of sales tax from Net
Revenue, RX Technology represents and warrants that all payments by Six Flags to
RX Technology of RX Technology share of Net Revenue hereunder are exempt from
any United States federal, state and local taxes or other assessments, including
any withholding taxes. RX Technology shall be solely responsible for, and shall
pay when due, assessments arising from or in connection with the receipt by RX
Technology of such Net Revenue.
6. AUDIT RIGHTS.
Until all claims and rights of Six Flags shall have been fully
ascertained, fixed and paid RX Technology shall maintain, in accordance with
generally accepted accounting principles, separate and accurate records of the
gross receipts of the Concession at the Park showing in detail all business
transacted by RX Technology. Six Flags shall have the right, at all reasonable
times, to examine and inspect such records as well as any other business records
of RX Technology pertaining to the operation of the Concession. This Section
shall survive the termination of this Agreement.
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7. CHANGE IN FINANCIAL CONDITION.
RX Technology agrees to notify Six Flags promptly of any
significant/material change in its financial condition.
8. TRADEMARKS.
A. RX Technology hereby grants Six Flags the non-exclusive
royalty-free right and license to use RX Technology trademarks, trade names,
service marks, logos and symbols, ("RX Technology Trademarks") for the Term of
the Agreement in connection with the Concession/Attraction in the Park. RX
Technology Trademarks are and shall remain RX Technology sole and exclusive
property. Six Flags agrees to include a trademark symbol (TM) on the first and
most prominent reference to RX Technology Trademarks and a protective trademark
legend in materials as shall be required by RX Technology hereunder.
B. Six Flags reserves the right to create an alternate name and/or
logo (collectively, the "Alternate Name") for the Concession. Six Flags shall
own all right, title and interest in and to such Alternate Name, and all
goodwill with respect thereto shall inure to the benefit of Six Flags. RX
Technology agrees that any Alternate Name shall be the exclusive property of Six
Flags.
C. Six Flags' Trademarks are and shall remain the sole and exclusive
property of Six Flags, and Affiliates' Trademarks are and shall remain the sole
and exclusive property of Six Flags' affiliates, and RX Technology shall not use
nor permit others to use Six Flags' Trademarks, including the Alternate Name,
and Affiliates' Trademarks for any purpose without the prior written consent of
Six Flags nor do anything which could in any way conflict with Six Flags' or its
affiliates' use or ownership of such trademarks.
9. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS.
A. RX Technology represents and warrants that:
(i) RX Technology is, and will during the term of this
Agreement be, solvent and able to meet its obligations hereunder as and when
they become due;
(ii) RX Technology shall not use, or suffer or permit any
person or persons to use, the Equipment and/or Facility for any purpose other
than as set forth herein without the prior written consent of Six Flags, or in
any unlawful manner or for any unlawful purpose;
(iii) RX Technology shall comply with, and use its best
efforts to cause its agents and employees to comply with all rules and
regulations of the Park as may be in effect from time to time. RX Technology
confirms that it has been provided with a copy of the rules and regulations of
the Park;
(iv) RX Technology will not offer or provide any Goods in or
from the Concession or elsewhere in the Park, without the prior express written
authorization of Six Flags.
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Any uncertainty with respect to the Goods which RX Technology is authorized to
offer or provide shall be resolved in the manner which most limits and restricts
RX Technology's authority, and any reasonable interpretation of such authority
by Six Flags shall be binding upon RX Technology;
(vi) the Concession, including the Facility and the Equipment
with respect thereto, will be fit and safe for its intended commercial use,
shall be free from defects, shall comply with all applicable laws, ordinances
and regulations, including building, electrical and/or other codes, and will
meet the operation objectives set forth herein;
(vii) RX Technology shall promptly pay all bills and charges
relating to the Concession in the Park, including any Alterations to the
Equipment and/or the Facility, and shall protect and indemnify Six Flags and the
Park against all such bills and charges and liens relating thereto. In the event
that RX Technology desires to contest any bill or charge which is the basis or
which may be the basis for a lien against the Facility constituting the
Concession or the Park or both, RX Technology shall, within five (5) days of
notice therefor, obtain a bond of, or deposit collateral with, a responsible
corporate surety or depository to protect against any such lien in the amount of
any such bill estimated costs and expenses, including without limitation,
attorney's fees and interest. If RX Technology fails to post such bond or
collateral within the aforementioned time period, Six Flags may, without
prejudice to any other right or remedy of Six Flags herein have the option to:
(a) pay any such claim, bill or charge on RX Technology's behalf, and RX
Technology shall reimburse Six Flags on demand for the amount of any such
payment or (b) have the right to set off the amount of said claim, bill or
charge from the portion of RX Technology Net Revenue due hereunder. Should any
claim or lien be filed or recorded affecting the Facility or the Park or both,
or should any action affecting the title thereto be commenced, RX Technology
shall give Six Flags written notice thereof promptly after the same becomes
known to RX Technology, and RX Technology shall thereafter remedy the same with
respect to the Facility or the Park or both;
(viii) RX Technology Trademarks, and/or any advertising,
promotion or publicity materials supplied Six Flags by RX Technology hereunder
will not violate, infringe upon or give rise to any adverse claim with respect
to any common law or other right whatsoever, including, without limitation, any
copyright, trademark, service mark, right of privacy or publicity or contract
right of any party or violate any other law; and
(ix) Except as otherwise expressly permitted herein, RX
Technology shall not have the right to use or permit the use of any of Six
Flags' Trademarks, including any depiction of the Park or Affiliates' Trademarks
without Six Flags' prior written consent identifying the use consented to, which
consent may be granted or withheld in the absolute discretion of Six Flags. This
Section shall survive the termination of the Agreement.
10. SUBCONTRACTORS.
Six Flags acknowledges that RX Technology has the right to utilize
subcontractors (collectively, the "Subcontractors") to fulfill the obligations
set forth hereunder, subject to Six Flags' prior approval with respect thereto
and the work to be performed thereby. RX Technology agrees that (i) the terms of
the agreement between RX Technology and any Subcontractor will comply with all
the terms of this Agreement, including, without limitation, the provisions
concerning
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criminal background checks of persons working at the Park for or on behalf of RX
Technology and the provisions concerning insurance, (ii) there will be no
disruption (including strike) in the operation of the Concession whatsoever
(even in the event of replacement of the Subcontractors), and (iii) RX
Technology shall not cause or permit any liens, claims or encumbrances to be
placed on or with respect to the Equipment, Facility, Park or any other property
of Six Flags or RX Technology which is the subject of this Agreement.
11. ASSIGNMENT.
The obligations of RX Technology herein are personal in nature and
this Agreement and the obligations of RX Technology hereunder shall not be
assigned or otherwise transferred by RX Technology, in whole or in part, to any
third party without the prior written consent of Six Flags. Six Flags may assign
this Agreement to any affiliate of Six Flags. For purposes of this Agreement,
the term "assigned" or "assignment" shall include, without limitation, a
consolidation or merger of RX Technology with or into another party, a
reorganization or a sale of all or substantially all of the assets of RX
Technology to another party, and/or transfer of a controlling interest in RX
Technology business in or to another party.
12. INDEMNITY.
RX Technology covenants that it will protect, defend, hold harmless
and indemnify Six Flags, its directors, officers, employees, agents,
subsidiaries, affiliates, partners and parent companies from and against any and
all expenses, claims, actions, liabilities, attorney's fees and costs, damages
and losses of any kind or nature whatsoever (including, without limitation of
the foregoing, death of or injury to persons and damage to property), actually
or allegedly resulting from or connected with the operation of the Facility
and/or the Concession (including, without limitation of the foregoing, goods
sold, work done, Goods rendered or products utilized therein, advertising and
promotion therefor, lack of repair in or about the area occupied or arising out
of any actual or alleged infringement of any patent or claim of patent,
copyright, trademark, service mark, or trade name) or from the omission or
commission of any act, lawful or unlawful, or breach of this Agreement by RX
Technology or its agents or employees, whether or not such act is within the
scope of the employment of such agents or employees and not due to the
negligence or willful misconduct of Six Flags or its employees and agents. This
Section shall survive the termination of the Agreement.
13. INSURANCE.
A. To insure RX Technology performance of the obligations and
warranties as set forth herein, but not by way of limitation, RX Technology
agrees, at its expense, to procure and maintain Comprehensive General Liability
against claims for bodily injury, personal injury or death and property damage,
Contractual Liability, Products Liability, Automobile Liability against claims
for bodily injury, personal injury or death and property damage, Risk Builder's
Risk Insurance, including coverage against collapse, written on a completed
value basis and Worker's Compensation Insurance, including an employer liability
endorsement (collectively, the "Insurance") each covering claims occurring upon,
in or about the Park, and on, in or about the adjoining streets, sidewalks and
passageways and identifying this Agreement, the Park and Six Flags Theme Parks
Inc. as being named as additional insured on the Insurance policies described
herein, including any renewals of
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such Insurance. The Insurance shall apply separately to each insured against
whom a claim is made or suit is brought. The Insurance shall remain in full
force and effect for the Term of this Agreement and one (1) year thereafter, and
all such Insurance shall include a waiver of subrogation against Six Flags. This
Section shall survive the termination of the Agreement.
B. The Insurance shall be written by a company rated "A" or better
by Best Insurance Reports, or by such other company consented to in writing by
Six Flags. The policy of Insurance will provide, inter alia, for thirty (30)
days advance notice to Six Flags and RX Technology of any proposed policy
modification or cancellation. Upon any cancellation and/or modification of any
Insurance policy required hereby, and prior to the effective date thereof, RX
Technology shall deliver replacement insurance to Six Flags. RX Technology shall
forward the Certificate of Insurance form attached hereto and incorporated
herein as Exhibit D to its insurer for execution and transmit such executed
Certificate to Six Flags promptly after execution of this Agreement, and RX
Technology shall also supply Six Flags with its official Certificate of
Insurance promptly after execution of this Agreement for its records.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out of
a single occurrence and $5,000,000 for all claims in the aggregate.
D. All Insurance policies required to be maintained shall be primary
and shall not require contribution from any coverage maintained by Six Flags,
and shall not contain, without Six Flags' prior written consent, any special or
non-customary exclusions.
E. RX Technology shall further, upon request, furnish Six Flags with
a certificate from RX Technology insurance carrier certifying that RX Technology
has obtained Worker's Compensation insurance upon its employees, or an opinion
of counsel satisfactory to Six Flags that such coverage is not required.
F. RX Technology understands that Six Flags' rights and RX
Technology obligations hereunder shall not be limited or affected by the
provisions of this Section 14.
15. BREACH.
In the event of breach of any provision of this Agreement by RX
Technology or in the event RX Technology should become insolvent, file a
voluntary petition in bankruptcy, have a receiver, liquidator or trustee in
bankruptcy appointed over its affairs, have a significant material adverse
change in its financial condition, Six Flags may, at its option, then or at any
time thereafter while said breach continues, upon fifteen (15) days prior
written notice to RX Technology, terminate this Agreement and the license and
privileges granted hereby and be relieved of all further obligation hereunder
arising after the date of termination. In the event of termination hereunder, RX
Technology shall then quit and surrender the premises as set forth in this
Agreement and the license and privileges granted hereby shall then terminate;
provided, however, that RX Technology shall remain liable for all obligations
under this Agreement, and Six Flags may, in addition to any remedy herein
provided, recover from RX Technology any damages to which it may be entitled in
law or equity. This Section shall survive the termination of this Agreement.
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16. NOTICES.
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To Six Flags: Six Flags Great America
542 North Route 21
Gurnee, IL 60031
Att: Roy G. Dennis, Jr.
Fax: 847/249-7348
copy to: Six Flags Theme Parks Inc.
400 Interpace Parkway
Building C, Third Floor
Parsippany, NJ 07054-1191
Att: General Counsel
Fax: 201-331-7585
Fax: 201/299-7519
Phone: 973-402-8100
To RX Technology: RX Technology
P.O. Box 9112
Mandeville, LA. 70470
Att: Rex Gay
Fax: 504/727-9815
or to such other addresses as the parties may direct by written notice given as
hereinabove provided. Notice shall be deemed given when received as evidenced by
the return receipt or the date such notice is first refused, if that be the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
17. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, RX
Technology may, subject to any indebtedness of RX Technology to Six Flags,
promptly remove RX Technology Equipment from the Park, except that Six Flags'
Trademarks or Six Flags' Affiliates' Trademarks shall be removed from the
Equipment and remain at the Park, and RX Technology shall quit and surrender the
Facility in the Park in good condition, reasonable wear and tear excepted.
Unless the parties otherwise agree, if RX Technology fails to remove the
Equipment from the Park within five (5) days after termination of this
Agreement, then RX Technology shall be deemed to have abandoned such property
and title to the same shall at that time vest in Six Flags. Any costs and
expenses incurred by Six Flags in removing such abandoned property (including
the reasonable value of the Goods rendered by Park employees in connection
therewith) shall be paid to Six Flags by RX Technology promptly following demand
therefor. This Section shall survive the termination of this Agreement.
18. GOVERNING LAW.
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A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State of
Illinois (the "Specified State") and that the laws of the Specified State shall
govern the construction, interpretation and enforceability of this Agreement.
Should any dispute arise in connection with the construction, interpretation,
performance or enforcement of the provisions of this Agreement, Each of the
parties hereto agree that any such action shall be brought only in the courts
located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the relationship of the parties hereto, (ii) agree that any
such action, suit or proceeding shall be brought in any state or federal court
of competent jurisdiction sitting in the federal court district in the Specified
State, (iii) submits to the jurisdiction of such courts and (iv) to the fullest
extent permitted by law, agree that it will not bring any action, suit or
proceeding in any forum other than as provided herein (but nothing herein shall
affect the right of the Six Flags to bring any action, suit or proceeding in any
other forum to the extent necessary to enforce its rights under this Agreement).
19. RELATIONSHIP OF THE PARTIES.
RX Technology is an independent contractor. Nothing contained in or
done pursuant to this Agreement shall be construed as creating a partnership,
agency, joint employer, joint venture or landlord-tenant relationship. Except as
otherwise expressly provided in this Agreement, no party shall become bound,
with respect to third parties, by any representation, act or omission of the
other.
20. FORCE MAJEURE.
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God. In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
21. PUBLICITY.
A. Six Flags shall, at its discretion, develop, direct and produce
any and all advertising and promotion in connection with the Concession in the
Park for the purposes of advertising, promoting, publicizing and merchandising
the Concession in the Park. RX Technology agrees to cooperate, as necessary,
when requested to provide any advertising or promotion with respect to the
Concession.
B. Six Flags shall have the right to use RX Technology Trademarks
and the names of any person or entity rendering Goods on or associated with the
Concession, as well as any
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such person or entity's biography, photographic or non-photographic likeness and
recorded voice.
C. RX Technology shall not have the right to have or cause to have
sponsors with respect to the Concession without the prior written approval of
Six Flags.
D. RX Technology agrees that Six Flags may obtain sponsors for the
Concession which may include affixing signage in or around the Concession, and
any proceeds Six Flags derives in connection therewith shall be solely that of
Six Flags.
22. PROPRIETARY INFORMATION.
RX Technology agrees that this Agreement and all information
regarding the business operations, policies and practices of Six Flags
("Proprietary Information") acquired or learned in connection with the
activities conducted under this Agreement shall be deemed confidential and shall
be kept in strict confidence under appropriate safeguards. The term Proprietary
Information, as used herein, does not include any information that is or becomes
generally available to the public other than as a result of disclosure in
violation of this Agreement. This Section shall survive the termination of the
Agreement.
23. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
24. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules hereto)
constitutes the entire agreement between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
agreements and undertakings of the parties pertaining to the subject matter
hereof. This Agreement may not be modified except by written instrument duly
executed by the parties hereto
-------------------------------
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IN WITNESS WHEREOF, this RX Technology Agreement has been duly executed by
the parties hereto on the day and year first hereinabove written.
SIX FLAGS GREAT AMERICA,
(a division of Six Flags Theme Parks Inc.)
By: /s/ James H. Wintrode
--------------------------------------
James H. Wintrode
President
RX Technology:
By: /s/ Donald Rex Gay President 3-31-98
--------------------------------------
Rex Gay
President/Owner
-------------------------------
S-1
<PAGE>
Exhibit A
Location(s)
The locations are set forth below, subject to relocation in the reasonable
discretion of Six Flags.
SHOCKWAVE
EAGLE
KIDDIE COASTER
Ex. A - 1
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) RX Technology shall comply with Six Flags' credit
card procedures (the "Credit Card Procedures") (a list of the Credit Card
Procedures in effect as of the date hereof is attached hereto and is
incorporated herein), as Six Flags may amend them from time to time upon notice
to RX Technology, with respect to acceptance of Credit Cards as payment for any
Goods.
(ii) RX Technology agrees that it shall not: (A)
discriminate in favor of any Credit Card accepted for payment over another, (B)
require a minimum transaction amount or impose a surcharge as a condition for
honoring Credit Cards, (c) impose a requirement on Credit Card holders to
provide any personal information as a condition for honoring Credit Cards unless
otherwise required by the Credit Card Procedures, (D) make or require a
photocopy of a Credit Card, (E) make a Credit Card sale where only part of the
consideration due is paid by use of such Credit Card, or (F) accept a Credit
Card for any purpose which is prohibited by the Credit Card Procedures.
(iii) RX Technology shall not make a Credit Card sale to
any person if: (A) the Credit Card being presented has expired according to the
expiration date shown on such Credit Card, (B) the sale has been declined for
authorization, (c) RX Technology has reasonable grounds to believe the Credit
Card being presented is counterfeit, fraudulent or stolen, or (D) the signature
on the Credit Card does not appear to be the same as the signature on the sales
draft or the spelling of the signature on the sales draft is different from the
spelling of the name on the Credit Card. RX Technology shall use reasonable
efforts to retrieve any credit card from the customer when instructed by a
service provider in response to an authorization or other inquiry.
(iv) RX Technology agrees to display symbols of the
Credit Cards, supplied by Six Flags hereunder, at its Facility in the Park to
effectively inform customers of the Park that the Credit Cards are honored by RX
Technology.
(b) Returns and Adjustments.
(i) All disputes between RX Technology and any Credit
Card holder respecting any Credit Card transaction hereunder shall be settled
between RX Technology and such Credit Card holder. RX Technology agrees that in
the event of a Credit Card dispute, RX Technology shall reasonably address the
Credit Card holder's concern in a good faith manner.
(ii) RX Technology shall maintain a fair and consistent
policy for exchange and return of Goods and for the adjustment of amounts due on
Credit Card transactions
Ex. B - 1
<PAGE>
and such policy shall be the same as available to cash customers. RX Technology
shall make no cash refunds or payments to Credit Card holders for returns or
adjustments on Credit Card sales.
(iii) When a refund or payment is due to a Credit Card
holder for return or adjustment, RX Technology shall prepare, execute and
deliver to Six Flags or cause to be delivered to Six Flags a legible credit
adjustment memo on a form provided or approved by Six Flags and deliver to the
Credit Card holder a copy of the completed form. Each credit adjustment memo
shall be imprinted with or contain the following: (A) Six Flags' name and
merchant account number, (B) city and address where the credit or adjustment
occurred, (c) Credit Card holder's name and Credit Card number, (D) Credit Card
expiration date, (E) the date of the return or adjustment and the date of the
initial transaction, if available, (F) the amount of the credit, and (vii) a
brief description of the Goods returned.
(iv) With respect to each credit adjustment memo
presented to Six Flags and/or transmitted hereunder, RX Technology represents
and warrants that: (A) the credit adjustment memo represents an amount lawfully
due to a Credit Card holder for the return or adjustment of Goods previously
purchased with the Credit Card, (B) a sales draft relating to and including the
amount of the credit memo was previously presented to Six Flags and/or
transmitted hereunder, (c) the credit adjustment memo does not duplicate
information concerning the same transaction in any other credit slip unless Six
Flags requests a resubmission, (D) the signature appearing on the credit
adjustment memo is that of an authorized employee of RX Technology, and (E) RX
Technology has complied fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technology fails to comply with the
Credit Card Procedures or the terms of this Exhibit B for a given Credit Card
transaction and said sales draft is returned to Six Flags, or in the event Goods
are returned by the customer that paid by Credit Card, or in the event Goods are
not received by customer or any defense or problem is made or presented by
customer questioning the validity or authorization of the transaction, RX
Technology agrees that Six Flags may, in its sole discretion: (i) deduct the
amount of said Credit Card transaction from RX Technology's share of the revenue
from the Concession due and owing RX Technology, if any, or (ii) bill RX
Technology in the amount of said Credit Card transaction, and RX Technology
shall pay Six Flags the same within five (5) days of receipt therefor, or (iii)
demand payment from RX Technology in the amount of said Credit Card transaction
and RX Technology shall pay Six Flags immediately upon its receipt of Six Flags'
demand. Failure of RX Technology to pay Six Flags as set forth herein for any
outstanding Credit Card transactions shall constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event Six Flags' agreement with respect to the
Credit Cards terminates or Six Flags, in its sole discretion, determines that it
does not want RX Technology to accept Credit Cards as payment for Goods
hereunder, RX Technology agrees to discontinue acceptance of Credit Cards and
remove the Credit Card symbols from the Facility upon notification by Six Flags.
Ex. B - 2
<PAGE>
2. CHECK.
(i) Acceptance.
RX Technology represents and warrants that it shall
comply with Six Flags' current check authorization procedures (the "Check
Authorization Procedures") (a copy of the TeleCheck Authorization Procedures in
effect as of the date hereof has been received by RX Technology and is
incorporated herein), as Six Flags may amend from time to time upon notice to RX
Technology, prior to acceptance of a check as payment for Goods. Notwithstanding
the foregoing, RX Technology agrees that it shall not contact TeleCheck
directly, as set forth in Section 3 of the Check Authorization Procedures but
shall contact the Merchandise Office or a Merchandise Supervisor to obtain
authorization from TeleCheck.
(b) Returns and Adjustments.
(i) All disputes between RX Technology and any customer
respecting any check transaction hereunder shall be settled between RX
Technology and such customer. RX Technology agrees that in the event of a
dispute, RX Technology shall reasonably address the customer's concern in a good
faith manner.
(ii) RX Technology shall maintain a fair and consistent
policy for exchange and return of merchandise and for the adjustment of amounts
due on check transactions and such policy shall be the same as available to cash
and credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX Technology shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible Refund Slip.
(iv) With respect to each legible Refund Slip presented
to Six Flags hereunder, RX Technology represents and warrants that: (A) the
Refund Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased with a check, (B) a sales draft
relating to and including the amount of the Refund Slip was previously presented
to Six Flags and/or transmitted hereunder, (c) the Refund Slip does not
duplicate information concerning the same transaction in any other Refund Slip
unless Six Flags requests a resubmission, (D) the signature appearing on the
Refund Slip is that of RX Technology, and (B) RX Technology has complied fully
with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technology fails to comply with the
Check Authorization Procedures for a given check and said check is returned to
Six Flags, or in the event Goods are returned by the customer that paid by
check, or in the event Goods are not received by customer or any defense or
problem is made or presented by customer questioning the validity or
authorization of the transaction, RX Technology agrees that Six Flags may, in
its sole discretion: (A) deduct the amount of said check from RX Technology's
share of the revenue from the Concession due and owing RX Technology, if any, or
(B) bill RX Technology in the amount of said check, and RX Technology shall pay
Six Flags the same within five (5) days of receipt therefor, or (c) demand
Ex. B - 3
<PAGE>
payment from RX Technology in the amount of said check and RX Technology shall
pay Six Flags immediately upon its receipt of Six Flags' demand. Failure of RX
Technology to pay Six Flags as set forth herein for any outstanding checks shall
constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event Six Flags' agreement with TeleCheck
terminates and Six Flags does not wish to continue acceptance of checks in the
Park or Six Flags, in its sole discretion, determines that it does not want RX
Technology to accept checks as payment for Goods hereunder, RX Technology agrees
to discontinue acceptance of checks upon notification by Six Flags.
3. CASH.
(a) Acceptance.
RX Technology represents and warrants that it shall
cause all cash received by or on RX Technology's behalf for sale of Goods
hereunder to be rung in the cash register or other Six Flags approved cash
collection equipment and deposited in such cash register or other equipment at
the time of sale. RX Technology agrees that it shall not accept cash for a mail
or telephone order transaction.
(b) Returns and Adjustments.
(i) All disputes between RX Technology and any customer
respecting any cash transaction hereunder shall be settled between RX Technology
and such customer. RX Technology agrees that in the event of a dispute, RX
Technology shall reasonably address the customer's concern in a good faith
manner.
(ii) RX Technology shall maintain a fair and consistent
policy for exchange and return of merchandise and for the adjustment of amounts
due on cash transactions and such policy shall be the same as available to
credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX Technology shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible Refund Slip.
(iv) With respect to each legible Refund Slip presented
to Six Flags hereunder, RX Technology represents and warrants that (A) the
Refund Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased in cash, (B) a sales draft relating to
and including the amount of the Refund Slip was previously presented to Six
Flags and/or transmitted hereunder, (c) the Refund Slip does not duplicate
information concerning the same transaction in any other Refund Slip unless Six
Flags requests a resubmission, (D) the signature appearing on the Refund Slip is
that of RX Technology, and (E) RX Technology has complied fully with the terms
of this Agreement.
Ex. B - 4
<PAGE>
(v) RX Technology agrees that in the event Goods
hereunder are returned on a day that said Goods were not purchased, Six Flags
may, in its sole discretion: (A) deduct the amount of said return from RX
Technology's share of the revenue from the Concession due and owing RX
Technology, if any; (B) bill RX Technology in the amount of said return and RX
Technology shall pay Six Flags the same within five (5) days of receipt therefor
or (c) demand payment from RX Technology in said amount and RX Technology shall
pay Six Flags immediately upon receipt of Six Flags' demand. Failure of RX
Technology to pay Six Flags as set forth herein for any amount outstanding
shall constitute a breach of the Agreement.
Ex. B - 5
<PAGE>
Credit Card Procedures
RX Technology represents and warrants that it shall follow the following
Credit Card Procedures, as may be amended from time to time by Six Flags upon
notice to RX Technology:
1. Each Credit Card sale shall be evidenced by a legible sales draft
(the "Draft") on a form approved by Six Flags, indicating the full amount due
for Goods sold hereunder.
2. Each Draft shall be imprinted by RX Technology, or show evidence
of the electronic equivalent obtained through use of a terminal which reads the
magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) Six Flags'
name and merchant account number, (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including the
account number, name and expiration date of the Credit Card, (iv) the date the
transaction takes place and the price of the Goods, (v) total amount of the
transaction, including all applicable taxes, (vi) description of Goods, and
(vii) signature of the Credit Card holder.
4. RX Technology shall compare the signature on the Draft with the
signature on the Credit Card to ascertain that they are the same, and if the
Credit Card has a photograph of the Credit Card holder, verify that the Credit
Card holder and the person presenting the Credit Card appear to be the same
person. If RX Technology believes there is a discrepancy in the signature or if
the photographic identification is uncertain, RX Technology shall contact the
service provides for instructions.
5. If the signature panel on the Credit Card is blank, RX Technology
shall do the following: (i) review positive identification to determine that the
user is the Credit Card holder; such identification must consist of a current
official government identification document (such as a passport or driver's
license) that bears the Credit Card holder's signature, (ii) indicate such
positive identification (including any serial number and expiration date) on the
Draft and (iii) require the Credit Card holder to sign the signature panel of
the Credit Card prior to completing the transaction.
6. On mail and telephone order sales, if any, RX Technology shall
print on the Draft the information required in Paragraph 3 of these Credit Card
Procedures and, in addition, the following: (i) the customer's name and account
number, (ii) whether the order was placed by mail (M.O.) or telephone (T.O.),
and (iii) whether or not authorization is obtained. With respect to mail and
telephone order sales, RX Technology does not need to secure the Credit Card
holder's signature or Credit Card imprint. RX Technology understands that
telephone and mail order transactions are permitted at RX Technology sole risk;
namely, that any defense or problem raised by a customer questioning the
validity or authorization of the transaction may be made.
7. For each Credit Card sale, RX Technology shall deliver or cause
to be delivered a copy of the completed sales draft to the customer, evidencing
the full amount due for the Goods.
Ex. B - 6
<PAGE>
8. RX Technology shall not complete a sales transaction without
first obtaining an authorization from the designated service provider for the
total amount of the transaction. RX Technology shall print legibly on the Draft
the authorization/approval code, evidencing any authorization so obtained.
Ex. B - 7
<PAGE>
Exhibit C
Employees
RX Technology Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Manager
2 Host/Hostess
Ex. C - 0
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
This is the first addendum to the original agreement dated the 1st day of
April, 1998 by and between SIX FLAGS GREAT AMERICA, a division of Six Flags
Theme Parks Inc., a Delaware Corporation, having offices at 542 North Route 21,
Gurnee, IL ("Six Flags") and RX Technology a corporation, having offices at P.O.
Box 9112, Mandeville, LA 70470 ("Lessee").
The following changes will supercede the original clauses in the agreement
dated the 1st day of April, 1998.
A. ORIGINAL CLAUSE:
WHEREAS, RX Technology desires to operate a retail concession known as RX
Technology (the "Concession") to sell photographs of guests riding Shock Wave,
Eagle, Kiddie Coaster (the "Goods") in the Park as set forth herein;
NEW CLAUSE:
WHEREAS, RX Technology desires to operate a retail concession known
as RX Technology (the "Concession") to sell photographs of guests riding Shock
Wave, Eagle, Kiddie Coaster, Raging Bull, and Batman the Ride (the "Goods") in
the Park as set forth herein;
B. ORIGINAL CLAUSE:
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX Technology a license to operate the Concession in the Park
in such locations of the Park as is set forth on Exhibit A-1 hereto during the
period of time (the "Term") commencing April 1, 1998 (the "Commencement Date")
and terminating at the end of the Park's 1999 operating season. In the event
that RX Technology meets or exceeds a year to date gross per capita two year
average of $.16 of the locations as set forth, an Exhibit A-1 at the end of the
1999 operating season, the existing Agreement will be extended through the 2000
operating season (the "Termination Date").
NEW CLAUSE:
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX Technology a license to operate the Concession in the Park
in such locations of the Park as is set forth on Exhibit A-1 hereto during the
period of time (the "Term") commencing April 1, 1998 (the "Commencement Date")
and terminating at the end of the Park's 1999 operating season. In the event
that RX Technology meets or exceeds a year to date gross per capita of $.23 of
the locations as set forth, an Exhibit A-1 at the end of the 1999 operating
season, the existing Agreement will be extended through the 2000 operating
season (the "Termination Date").
<PAGE>
C. ORIGINAL EXHIBIT A:
The locations are set forth below, subject to relocation in the reasonable
discretion of Six Flags.
SHOCK WAVE
EAGLE
KIDDIE COASTER
NEW EXHIBIT A:
SHOCK WAVE
EAGLE
KIDDIE COASTER
RAGING BULL
BATMAN THE RIDE
D. ORIGINAL EXHIBIT C:
Employees
RX Technology Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Manager
2 Host/Hostess
NEW EXHIBIT C:
Employees
RX Technology Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Manager
4 Host/Hostess
<PAGE>
E. ADDITIONAL CLAUSE SECTION 9:
(ix) Notwithstanding any other provision of this Agreement,
"SIX FLAGS", within its discretion, reserves the right to designate any other
company or person as a Park sponsor ("Designated Park Sponsor") and permit that
sponsor signage, displays, or other identification of its products or name on
the exterior within the interior of the RX Technology site as long as that
interior usage does not interfere with the actual operation of the RX Technology
operation. RX Technology shall not be entitled to any compensation from "SIX
FLAGS" or any "Designated Park Sponsor" for such usage nor shall RX Technology
be relieved of any of the terms and conditions of this Agreement. "SIX FLAGS"
agrees that no such signage of displays shall be affixed to any RX Technology
product.
F. ORIGINAL CLAUSE:
(i) Upon commencement of RX Technology's daily operations, RX
Technology shall pick up a cash till from the Park's cash control facility, and
within one (1) hour after the close of each Park day, RX Technology shall
deliver to Park's cash control facility the following: (a) remaining cash till,
(b) a daily report of the day's operations on Six Flags' "Daily Sales Report"
form, and (c) the day's daily gross receipts, including without limitation
credit card sales drafts, credit memos and all other materials evidencing sales
transactions during such day (collectively, the "Deposits"). Such Deposits are
received subject to audit by Six Flags as set forth herein and Six Flags may
correct and credit or debit RX Technology for any inaccuracies or errors in RX
Technology computation of Deposits. Six Flags may refuse to accept or revoke
acceptance of any Deposits, including any sales drafts or credit adjustments,
which are illegible or which fail to comply with the terms of this Agreement,
including, but not limited to, any federal or state law.
NEW CLAUSE:
(i) Upon commencement of RX Technology's daily operations, RX
Technology shall follow cashier procedures exhibit B-Supplement and pick up a
cash till from the Park's cash control facility, and within one (1) hour after
the close of each Park day, RX Technology shall deliver to Park's cash control
facility the following: (a) remaining cash till, (b) a daily report of the day's
operations on Six Flags' "Daily Sales Report" form, and (c) the day's daily
gross receipts, including without limitation credit card sales drafts, credit
memos and all other materials evidencing sales transactions during such day
(collectively, the "Deposits"). Such Deposits are received subject to audit by
Six Flags as set forth herein and Six Flags may correct and credit or debit RX
Technology for any inaccuracies or errors in RX Technology computation of
Deposits. Six Flags may refuse to accept or revoke acceptance of any Deposits,
including any sales drafts or credit adjustments, which are illegible or which
fail to comply with the terms of this Agreement, including, but not limited to,
any federal or state law.
<PAGE>
G. ORGINIAL CLAUSE IN EXHIBIT B CLAUSE 3 CASH:
(a) Acceptance.
RX Technology represents and warrants that it shall
cause all cash received by or on RX Technology's behalf for sale of Goods
hereunder to be rung in the cash register or other Six Flags approved cash
collection equipment and deposited in such cash register or other equipment at
the time of sale. RX Technology agrees that it shall not accept cash for a mail
or telephone order transaction.
NEW CLAUSE IN EXHIBIT B CLAUSE 3 CASH:
(a) Acceptance.
RX Technology shall comply with Six Flag's cash handling
procedures ("SFGAM Cashier Procedures") a copy of which is attached hereto.
RX Technology represents and warrants that it shall
cause all cash received by or on RX Technology's behalf for sale of Goods
hereunder to be rung in the cash register or other Six Flags approved cash
collection equipment and deposited in such cash register or other equipment at
the time of sale. RX Technology agrees that it shall not accept cash for a mail
or telephone order transaction.
This Addendum (including any and all exhibits and schedules hereto)
constitutes the first addendum between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
clauses and undertakings of the parties pertaining to the subject matter hereof.
This Addendum may not be modified except by written instrument duly executed by
the parties hereto.
<PAGE>
IN WITNESS WHEREOF, this RX Technology Agreement has been duly executed by
the parties hereto on the day and year first hereinabove written.
SIX FLAGS GREAT AMERICA,
(a division of Six Flags Theme Parks Inc.)
By: /s/ James H. Wintrode
---------------------------------------
James H. Wintrode
Vice President and General Manager
RX Technology:
By: /s/ Donald Rex Gay
---------------------------------------
Rex Gay
President/Owner
<PAGE>
Supplement - Exhibit B
Six Flags Great America Cashier Procedures
Beginning of Shift: Till Pick-up
Have the following ready before coming to the window
o Your Employee ID
o The unit name and number of the unit where you will be working
Go to the Merchandise window. Once at the window, find your unit on the sign out
sheet and sign your name on the first available line.
The amount of cash you should receive is posted on the top of the sign out
sheet. After you receive your cash BEFORE leaving cash control, count your cash
to ensure you have received the correct amount. If you find a discrepancy,
report this immediately to the cash window for correction. Once you leave the
cash office, no discrepancies can be corrected.
Complete the top part of the Cash Control Sheet with your name, the Till number
checked out, and today's date.
Currency Pick up at the unit:
When cash control collects money from your register (drawer or drop box) make
sure to receive a pick up slip. Make sure it is completed with your unit and
Till number, the date and time. You will receive the pink copy of the pick up
slip. Make sure it is signed by an authorized (ID should be presented) cash
control representative.
End of Shift: Till Turn-in:
Before traveling to cash control complete the rest of the Cash Control sheet and
get your supervisor to check it is complete and sign the sheet. This must be
returned with your cash bag. The following should be checked:
o Make sure you have a journal tape for all the places worked, mark with
your bag number, unit number, and unit name
o Make sure you have all checks and Travelers checks and your bag number is
written on the lower left on face of each one
o Make sure you have all credits sales slips signed by the guest and your
bag number is written on each one
o Make sure you log your voids and they are approved by your supervisor
o Make sure you have all your pick up slips
o Check that there is no cash left behind in your register (behind the
drawer)
o Make sure all your bills are stacked neatly, no folds or rips. Any torn
currency should be placed on the top of the stack of bills. Your change
should be in a change bag.
o Have your supervisor double check all is complete and sign the sheet.
Proceed to the window for your function and give the bag to the cashier to check
that all items are correct from the Cash Control sheet. Sign the sign-in sheet
that the bag has been returned. Make sure the Teller also signs the sheet and
records the time in before leaving the window.
More often than not, you may be selected to have your bag audited. This is
strictly random process and no cause for concern. Cooperate with the auditor as
they balance your day's sales with receipts of cash, credit, checks, and
coupons. If all your transactions are in order this should only take a few
minutes.
EX B - 6
<PAGE>
Cash Control Sheet
Name: ______________________________________ Date: ________________
Bag Number: ____________________
Check BEFORE bag turn in:
___ Journal Tapes, Register tapes are included
___ Checks and Travelers Checks... all marked with bag. Follow Telecheck
authorization procedures.
___ Credit Slips signed by guest... Follow credit authorization procedures.
___ Bugs Bunny dollars. All marked with bag # and $value.
___ Void logs signed by supervisor. (When applicable.)
___ Pick up Slips. (When applicable.)
___ All Currency stacked (no folds or creases), all loose coin in coin bag.
___ Cash register
___ Register Balancing Form completed both upper & lower portion. (Lessees only)
Cashier Signature __________________________________
Supervisor Signature ___________________________________
EX B - 7
<PAGE>
DATE: ______________ Department - $ $$$.00
TILL SIGN OUT LOG
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Control Employee Cashier - Cash Control -
Number Number Number Out Signature Out Signature Time Cashier - In Signature Cash Control - In Signature Time
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
xxx03
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
xxx03
- ------------------------------------------------------------------------------------------------------------------------------------
xxx04
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
"xxx" = Unit Number
"01", "02", "03" are based on number of tills requested per unit.
"$$$" based on till fund requested.
(Coin included vs Dollars only.)
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CASH PICKUP RECEIPT DO NOT USE RED INK
DATE______________ BAG # |_|_|_|_|_|
UNIT______________________________ TIME____________________
BAR
CASHIER______________________________ CODE I.D. # _____________
100.00 x ____ = ______________.__
50.00 x ____ = ______________.__
20.00 x ____ = ______________.__
10.00 x ____ = ______________.__
5.00 x ____ = ______________.__
2.00 x ____ = ______________.__
1.00 x ____ = ______________.__
Travelers checks _____________.__
TOTAL PICKUP _____________.__
Cashier:___________________________
Supervisor:________________________
WHITE COPY - Wrap with currency YELLOW COPY - in cash bag PINK COPY - Unit copy
PG95 71556
- --------------------------------------------------------------------------------
EX B - 9
<PAGE>
REGISTER BALANCE FORM (RBF)
DO NOT USE RED INK - PRESS FIRMLY WHEN WRITING DATE ______________
INSTRUCTIONS
PRINT TOP PORTION. FILL IN DATE, CASHIER NAME, BAG#, SS#, AND IBM#
FILL IN LINES C THROUGH J WHILE WAITING IN LINE.
A. RECORD THE TOTAL AMOUNT FROM THE LOOSE COIN RECEIPT ON THIS LINE.
B. RECORD THE TOTAL AMOUNT FROM THE FINAL CURRENCY RECEIPT ON THIS LINE.
C. ADD THE DOLLAR AMOUNTS OF ALL PERSONAL CHECKS AND RECORD ON THIS LINE.
D. ADD THE DOLLAR AMOUNTS OF ALL TRAVELER CHECKS AND RECORD ON THIS LINE.
E. ON THE LEFT SIDE OF THE FORM, LIST THE QUANTITY OF EACH ROLLED COIN TYPE
AFTER THE x. MULTIPLY THE QUANTITY TIMES THE VALUE OF EACH ROLL AND WRITE THE
RESULT IN THE TOTAL COLUMN. ADD THE TOTAL COLUMN DOWN. FOLLOW THE ARROWS TO THE
RIGHT, AND LIST THE TOTAL ROLLED COIN ON LINE E.
F. RECORD THE TOTAL CREDIT CARD AMOUNT FROM YOUR CLERK ID REPORT.
G. ADD THE TOTALS OF ALL ACCT REC AND RECORD ON THIS LINE. TO IDENTIFY: ACCT
REC WILL HAVE "ACCT REC" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
H. ADD ALL BUGS BUNNY MONEY TOGETHER AND RECORD ON THIS LINE.
I. ON THE LEFT SIDE OF THE FORM, RECORD EACH PICKUP FROM YOUR YELLOW RECEIPTS.
FOLLOW THE ARROWS TO THE RIGHT AND LIST THE TOTAL PICKUPS AMOUNT ON LINE I.
J. ADD THE TOTALS OF ALL COUPONS AND RECORD ON THIS LINE. TO IDENTIFY: COUPONS
WILL HAVE "COUPON" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
K. ADD THE TOTALS OF LINES A THROUGH J AND RECORD ON THIS LINE.
L. WRITE THE AMOUNT OF THE TILL/BANK THAT YOU CHECKED OUT AT THE BEGINNING OF
YOUR SHIFT.
N. SUBTRACT LINE L FROM LINE K.
SIGN YOUR NAME ON THE PREPARED BY LINE.
CASHIER NAME_________________________________________ BAG # |_|_|_|_|_|
SOC SEC # |_|_|_|_|_|_|_|_|_| IBM # |_|_|_|_|
- -----------
ROLLED COIN
- -----------
VALUE QTY TOTAL
----- --- -----
PENNIES $.50 x ____ = $________.__ LOOSE COIN RECEIPT _________.__ A
NICKELS $ 2. x ____ = $________.__ FINAL CURRENCY _____________.__ B
DIMES $ 5. x ____ = $________.__ PERSONAL CHECKS ____________.__ C
QUARTERS $ 10. x ____ = $________.__ TRAVELERS CHECKS ___________.__ D
TOTAL ROLLED COIN -> -> -> -> ROLLED COIN ________________.__ E
PICKUP # 1 __________________.__ CREDIT CARDS _______________.__ F
PICKUP # 2 __________________.__ ACCTS RECEIVABLE ___________.__ G
PICKUP # 3 __________________.__ BUGS BUNNY MONEY ___________.__ H
TOTAL PICKUPS -> -> -> -> TOTAL PICKUPS ______________.__ I
COUPONS ____________________.__ J
TOTAL DEPOSIT_______________.__ K
(ADD A THROUGH J)
LESS: TILL/BANK ___________.__ L
NET DEPOSIT ________________.__ M
(K-L)
PREPARED BY __________________________________________________
- --------------------------------------------------------------------------------
CASHIERS --- DO NOT FILL OUT BELOW THIS LINE
- --------------------------------------------------------------------------------
GUEST LEFT CHANGE ______________________.__ O TOTAL ADJUSTED SALES ______.__ N
ADJUSTED NET DEPOSIT (M-O) _____________.__ P
CASH VARIANCE (P-N) ____________________.__ OVER/SHORT _________________.__
(M-N)
TRANSFER 1 TRANSFER 2 TRANSFER 3
---------- ---------- ----------
SALES SALES SALES
TO UNIT _______________ TO UNIT _______________ TO UNIT _______________
GROSS GROSS GROSS
SALES ______________.__ SALES ______________.__ SALES ______________.__
LESS: LESS: LESS:
REFUNDS ____________.__ REFUNDS ____________.__ REFUNDS ____________.__
LESS: LESS: LESS:
VOIDS ______________.__ VOIDS ______________.__ VOIDS ______________.__
ADJUSTED ADJUSTED ADJUSTED
SALES ______________.__ SALES ______________.__ SALES ______________.__
TOTAL (TRANSFER 1+2+3)
GROSS
SALES ______________.__
LESS:
REFUNDS ____________.__
LESS:
VOIDS ______________.__
ADJUSTED
SALES ______________.__
MANUAL
SALES TAX __________.__
TOTAL #
VOIDS _________________
CONTROL CLERK________________ CC AGENT ___________________
WHITE COPY - CSH CNTRL YELLOW - CSH CNTRL PINK - INT CNTRL
<PAGE>
------------------
Your Check
Is Welcome
TeleCheck(R)[LOGO]
------------------
PROCEDURE MANUAL
<PAGE>
INDEX
WHAT IS TELECHECK.........................................................Page 1
EXAMPLE OF CHECK..........................................................Page 2
WHAT DO I DO?.............................................................Page 3
COMPANY CHECKS............................................................Page 4
SHOULD I TAKE THE CHECK?..................................................Page 5
HOW DO I REQUEST WARRANTY PAYMENT?........................................Page 6
HOW DO I READ MY WARRANTY LEDGER?.........................................Page 7
HOW DO I READ MY TELECHECK INVOICE?.......................................Page 8
INVOICE EXPLANATION.......................................................Page 8
<PAGE>
TeleCheck(R)[LOGO] TeleCheck Chicago
- ------ 999 E. TOUHY AVENUE
I45936 SUITE #225
- ------ DES PLAINES, IL 60018
YOUR LOCATION CODE (708) 390-5400
What is TeleCheck(R)?
TELECHECK Services, Inc. is an international franchise organization with
operations throughout the United States, Canada, Hong Kong, Puerto Rico,
Australia, and New Zealand. It is the nation's largest check acceptance service.
TELECHECK will honor any check from any bank in the United States or Canada. In
addition, we warrant our information. If an approved check comes back to you
dishonored by the bank, we will reimburse you the full amount of that check up
to your pre-established limit,
What are the benefits?
o Increases the traffic flow into your store.
o Increases the dollar value of transactions.
o Turns strangers into regular customers.
o Improves customer relations.
o Saves time.
With TELECHECK you can serve your customers in a way that they appreciate. You
give them an added service and convenience. This is accomplished by providing
instant information which will support your decision to accept a check.
Response time for inquiries is a matter of seconds, whether by automated
response, by direct terminal access, or operator assisted.
The primary purpose of the TELECHECK system is to build your business.
TELECHECK can be a supplement for you in your non-cash payment methods.
1
<PAGE>
YOUR STORE | ID TYPE AND Draw a 'cross' in the upper right-
CODE | NUMBER hand corner of the check. Fill in the
- ------------------------------ proper information.
APPROVAL | PHONE
CODE | #
[GRAPHIC OF SAMPLE CHECK]
2
<PAGE>
Before calling TeleCheck ...
1. Make sure check is drawn on a U.S. or Canadian bank.
2. Check must be first party, payable to your business.
3. Date of check must be the current date.
4. Written and numeric amounts must agree.
5. Check writer's name and bank account number must be imprinted by the check
manufacturer.
6. The signature in the signature block must not be substantially different
from the name imprinted on the check.
7. Complete address is written on check (if not bank imprinted). Complete
address includes: full street address, city, state and zip code. P.O. Box
numbers or General Delivery are not valid addresses. Rural Routes are
acceptable.
8. Check writer's phone number is written on check, including area code.
9. An acceptable ID must be obtained from the checkwriter and the ID type and
number written legibly on the check.
10. One check per business transaction, sale or service performed. Checks for
cash will not be warranted.
Acceptable ID types
(Only One Required)
A. Driver's License:
Permanent, Unexpired License from any state or Canada.
B. Valid and Unexpired Major Credit Card:
MasterCard Carte Blanche
Visa Diners Club
American Express Discover
3
<PAGE>
Company Checks
The same procedures listed on the previous page apply to a Company Check as well
as a Personal Check. One significant difference is that the signature on a
Company Check will not match the bank imprinted name.
On Company Checks, rather than using an ID, you will be obtaining an
authorization using the "zip-plus" method. (In place of an ID, use the 5-digit
zip code plus any numerics in the street address up to a maximum of thirteen
numbers). Please refer to the call-in procedures for more detailed instructions.
If referred to a live operator when calling in a Company Check, you must alert
the operator that it is in fact a Company Check.
Calling TeleCheck
TELECHECK operates 7 days a week - 24 hours a day.
The check writer must be present until your call to TELECHECK is complete. With
the check and I.D. in hand, telephone TELECHECK by referring to the sticker by
your phone.
Give the following information.
Location Code
ID Type and Number [GRAPHIC OMITTED]
Exact Amount of Check
Under certain conditions additional information may be required.
4
<PAGE>
Should I take the check?
Operator will reply with one of the following codes:
FOUR DIGIT Accept the check. This four digit number means the
APPROVAL: TELECHECK warranty will apply, provided all procedures
have been followed. The approval number must be written
on the check.
CODE 2: Information only. The TELECHECK warranty does not apply.
TELECHECK has no negative information on file, but the
inquiry did not meet our requirements. Your company policy
prevails. The most common reason for a Code 2 is because
the check writer does not have an acceptable I.D. type.
CODE 4: TELECHECK has negative information on the check writer.
The warranty does not apply. Extend a customer referral
card and ask the customer to pay cash or use a credit
card. Do not allow the check writer to talk to the
operator. The business office will answer all inquiries.
CUSTOMER Dear Customer:
REFERRAL
CARD We are sorry that we cannot accept your check at this time
because TeleCheck(R) will not approve it.
We encourage you to contact TeleCheck so they can explain
the reasons for their actions and work with you to resolve
the situation.
Please contact:
Consumer Service Manager
(708)390-5450
8:00 a.m.-5:00 p.m.
Monday-Friday
TeleCheck Chicago
999 E. TOUHY AVENUE
SUITE #225
DES PLAINES, IL 60018
(c) TeleCheck Services, Inc. 1987 TMI #1079
5
<PAGE>
Qualified checks for which a four digit approval response has been given by
TeleCheck are warranted. If the check has been returned by the bank to you
unpaid, follow these instructions to receive payment.
1. Review the check to determine if it complies with all nine TeleCheck
procedures outlined on your Check Purchase Request Form. (complete both
sides of a Check Purchase Request Form/Assignment of Uncollectable check
for EACH check submitted for payment.)
2. Mail both the check and Assignment of Uncollectable Check Form to
TeleCheck. Please keep the receipt for your records. (It is also wise to
keep a photostatic copy of the front and back of the check for your
records.)
[GRAPHIC OMITTED]
What is a valid warranty claim?
TeleCheck's rules are simple and easy to follow. These rules are firm and will
not be altered. A check must pass the nine rules before it will be considered a
valid warranty claim.
1. U.S. or Canadian first party check (company or personal) or credit union
share draft. Name imprinted by the bank is not altered. If P.O. Box is
imprinted or address is not imprinted by the bank, street address must be
taken from identification and written on the check.
2. Telephone number either imprinted or written. (Home or Business.)
3. Permanent valid driver's license or other approved I.D. must have been
used for identification and I.D. type and number must be written on the
check. If the address on the check does not match the address on the I.D.,
both addresses must be placed on the check. If driver's license, give
state of issue.
4. The signature in the signature block must not be substantially different
from the name imprinted on the check.
5. Date of inquiry must be the same as date on check.
6. Amounts shown in words and figures must be in agreement.
7. Subscriber must be current in payment to TeleCheck before warranty claim
checks will be issued.
8. Checks warranted by TeleCheck MUST BE IN TELECHECK'S OFFICE WITHIN 30 DAYS
FROM DATE ON CHECK.
9. Subscriber shall have received an Approval Code response and met the above
requirements.
What are the most common reasons for a warranty claim not being accepted?
1) NO PHONE NUMBER ON CHECK.
2) P.O. BOX ONLY (ADDRESS NOT WRITTEN IN)
3) OVER 30 DAYS OLD
4) CHECK NOT FIRST PARTY
5) NAME SIGNED IS NOT THE SAME AS NAME IMPRINTED.
6) I.D. ACCEPTED IS NOT THAT OF THE CHECK SIGNER.
6
<PAGE>
[Illegible]
warranty claim?
EXCHANGE BILLING [GRAPHIC OMITTED]
Warranty claims received by TeleCheck between the first and end of the month
will be acknowledged on the following month's invoice.
Reimbursements will be issued approximately 10 days from date of receipt of
invoice payment. Warranty checks can be released only when your TeleCheck
charges are current and paid in full.
[GRAPHIC OMITTED]
How do I read my warranty ledger?
Each month TeleCheck will list all the warranty claims received during the
previous month on your Warranty Ledger.
[GRAPHIC OMITTED]
OVER WARRANTY LIMIT
If the check you submitted was over the warranty limit, the face amount of the
check will be listed under the AMOUNT column and the amount that TeleCheck
will reimburse you will be listed under the WARRANTY column.
RETURN TO STORE
Checks which cannot be warranted will be returned. The check will be listed on
the Warranty Ledger. However, the WARRANTY AMOUNT will be zero and the codes
will explain why it was returned.
CODES
Next to each check there is a series of codes. Please refer to the "Explanation
of Codes" at the bottom of the Warranty Ledger to describe the status of
each claim submitted.
WARRANTY TOTAL
You can determine the amount of warranty you will receive by looking at the
"WARRANTY TOTAL" at the bottom of the Warranty Ledger. This total also appears
under the loss prevention heading on your invoice.
PAID AT THE STORE
Although we discourage this practice, the check writer will occasionally pay you
directly for the bad check after you have submitted your warranty claim to
TeleCheck. When this occurs, you must notify TeleCheck that payment has been
made in order to release the customer from our negative files.
7
<PAGE>
Warranty Ledger
[GRAPHIC OMITTED]
How do I read my Telecheck invoice
- --------------------------------------------------------------------------------
You will receive a monthly invoice from Telecheck which will reflect the billing
activity for the full month. Payment is due upon receipt of invoice.
SECTION 1
MAILING ADDRESS AND CALL STATISTICS
[GRAPHIC OMITTED]
8
<PAGE>
SECTION 2
LOCATION STATISTICS AND OVERALL BILLING
[GRAPHIC OMITTED]
SECTION 3
REMITTANCE COPY
[GRAPHIC OMITTED]
9
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
This second addendum to the original agreement dated the 1st day of April,
1998 by and between SIX FLAGS GREAT AMERICA, a division of Six Flags Theme
Parks, Inc., a Delaware Corporation, having offices at 542 North Route 21,
Gurnee, IL ("Six Flags") and RX TECHNOLOGY, a corporation having offices at P.O.
Box 9112, Mandeville, LA 70470 ("Lessee").
The following changes will supercede the original clauses in the agreement
dated the 1st day of April, 1998.
A. ORIGINAL CLAUSE SECTION 2.A.:
RX Technology agrees to operate the Concession during the hours and days
including Sundays and holidays, that the Park is open for business in accordance
with schedules prepared by Six Flags which Six Flags may modify in Six Flags'
sole discretion at any time on a twenty-four (24) hours notice to RX Technology
and such additional hours as are required by Six Flags (the "Operating Hours").
RX Technology acknowledges that Six Flags will suffer great harm if RX
Technology breaches the agreement set forth in this subsection, the amount of
which would be difficult to determine. Therefore, RX Technology agrees to pay
Six Flags liquidated damages of $50.00 for each Park operating day that RX
Technology opens the Concession thirty (30) minutes after the opening time of
the Park's Operating Hours and/or closes the Concession thirty (30) minutes
before the time of the Park's Operating Hours upon notice thereof by Six Flags
and such liquidated damages shall be increased an additional $50.00 for each
successive violation of Park Operating Hours upon notice thereof by Six Flags,
up to a maximum liquidated damages amount of $500.00.
NEW CLAUSE:
RX Technology agrees to operate the Concession during the hours and days,
including Sundays and holidays that the Park is open for business in accordance
with schedules prepared by Six Flags which Six Flags may modify in Six Flags'
sole discretion at any time on a twenty-four (24) hours notice to RX Technology
and such additional hours as are required by Six Flags (the "Operating Hours").
RX Technology acknowledges that Six Flags will suffer great harm if RX
Technology breaches the agreement set forth in this subsection, the amount of
which would be difficult to determine. Therefore, RX Technology agrees to pay
Six Flags liquidated dames of $500.00 for each Park operating day that RX
Technology opens the Concession thirty (30) minutes after the agreed opening
time of the Concession and/or closes the Concession thirty (30) minutes before
the agreed upon closing time. Upon notice thereof by Six Flags and such
liquidated damages shall be increased an additional $750.00 for each successive
violation of Park Operating Hours thereof by Six Flags.
B. ORIGINAL CLAUSE SECTION 2.B.:
RX Technology agrees to submit samples of all products detailed plans,
specifications, drawings and other information with respect to Goods for sale to
be made available to customers in the Park in connection with the Concession,
for Six Flags' approval in advance of sale of the same. RX Technology agrees to
makes such changes to the Goods, at its sole cost and expense, as Six Flags
shall reasonably determine. RX Technology also agrees to coordinate with the
Park in coding each of RX Technology's Goods and inputting the same in the cash
register for tracking purposes. To the extent requested by Six Flags, RX
Technology shall comply with Six Flags' point of sale and other information
system requirements.
1
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
NEW CLAUSE:
RX Technology agrees to submit samples of all products, detailed plans,
specifications, drawings and other information with respect to Goods for sales
to customers in the Park in connection with the Concession, for Six Flags'
approval in advance of sale of the same. RX Technology agrees to make such
changes to the Goods, at it sole cost and expense, as Six Flags shall reasonably
determine.
C. ADDITIONAL CLAUSE SECTION 2.C.IV:
(iv) RX Technology agrees that any merchandise/product that are held for
the Guest by RX Technology must be taken to Guest Relations at Park closing each
operating day for the Guest to pick up. Failure to do so will result in a
$100.00 fine for each occurrence that Six Flags must retrieve product held by RX
Technology.
D .ORIGINAL CLAUSE 2.E. (vi):
RX Technology agrees to use best efforts to cause its employees to attend
Park Training/orientation programs as may be required by Six Flags and comply
with Park rules and regulations, including without limitation submission to drug
testing, as may be required. RX Technology further agrees to cause its employees
to wear such uniforms as shall be approved in advance by Six Flags, if Six Flags
provides said uniforms. RX Technology agrees that all such uniforms shall be
returned in good condition, normal wear and tear expected, to Six Flags at the
end of Term. RX Technology agrees to pay Six Flags for any damage to, or loss
of, such uniforms. Six Flags reserves the right to set off the amounts thereof
from RX Technology's share of Net Revenues.
NEW CLAUSE:
RX Technology agrees to use its best efforts to cause its employees to
attend Park training/orientation programs as may be required by Six Flags and
comply with Park rules and regulations, including without limitation submission
to drug testing, as may be required. Pending availability of desired Park
Orientation date and time, no RX Technology employees will be scheduled for Park
Orientation without five days written notice from RX Technology.
E. ADDITIONAL CLAUSE SECTION 2.E.(xii):
(xii) RX Technology has the option to provide costumes for RX Technology's
employees. Six Flags will approve the costumes provided by RX Technology. RX
Technology is to submit costume to Six Flags for approval no later then March
17, 2000. RX Technology also has the option to purchase park approved costumes
from Six Flags for RX Technology's employees. Park Shoes worn by RX Technology's
employees are to be solid black athletic shoes with no other colors within the
shoe body. All costume charges will be deducted from RX Technology's weekly Net
revenue. It will be the responsibility of RX Technology to collect costume
charges from RX Technology's employees.
2
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
F. ORIGINAL CLAUSE SECTION 5.B.:
"Net Revenue" means gross revenue of the Concession during the applicable
period less the sales tax paid or payable in respect thereto or otherwise paid.
RX Technology agrees that Six Flags shall have the right to deduct the following
from RX Technology's share of the Net Revenue: (ii) cash shortages, (iii) credit
card, check processing and other transaction costs and charges, including charge
backs and return check amounts and fees related thereto, (iv) the cost of goods
taken from Six Flags' warehouse, to the extent permitted by Six Flags, or
otherwise and not paid for (v) the cost of leased Park equipment, if any, each
during the applicable period (vi) the cost associated with the damage or loss of
uniforms as set forth in more detail in Section 2G (vii) the cost of any bill or
charge which is the basis or which may be the basis for a lien against the
Facility as set forth in more detail in Section 9A (vii) hereof.
NEW CLAUSE:
"Net Revenue" means gross revenue of the Concession during the applicable
period less the sales tax paid or payable in respect thereto or otherwise paid.
RX Technology agrees that Six Flags shall have the right to deduct the following
from RX Technology's share of the Net Revenue: (i) cash shortages, (ii) credit
card, check processing and other transaction costs and charges, including charge
backs and return check amounts and fees related thereto, (iii) the cost of goods
taken from Six Flags' warehouse, to the extent permitted by Six Flags, or
otherwise and not paid for (iv) the cost of leased Park equipment, if any, each
during the applicable period (v) the cost of any bill or charge which is the
basis or which may be the basis for a lien against the Facility as set forth in
more detail in Section 9, (vi) cost associated with uniforms as set forth in
more detail in Section 2.
This Addendum (including any and all exhibits and schedules hereto)
constitutes the second addendum between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
clauses and undertakings of the parties pertaining to the subject matter hereof.
This Addendum may not be modified except by written instrument duly executed by
parties hereto.
3
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
IN WITNESS WHEREOF, this RX TECHNOLOGY Agreement has been duly executed by
the parties hereto on the day and year first herinabove written.
SIX FLAGS GREAT AMERICA,
(a division of Six Flags Theme Parks, Inc.)
By: /s/ James H. Wintrode
---------------------------------------
James H. Wintrode
Vice President and General Manager
RX Technology:
By: /s/ Donald Rex Gay
---------------------------------------
Rex Gay
President/Owner
4
<PAGE>
Supplement - Exhibit B
Six Flags Great America Cashier Procedures
Till Check-out
The following will be needed at the time of till check-out:
o Employee I.D.
o Unit name and number
Tills will be checked out at the Merchandise window. Cashiers will sign for a
cash bag on the first available line under their unit number on the Till
Check-out Log.
The amount of cash received should match the amount posted on the top of the
Till Check-out Log. This amount must be verified before leaving Cash Control.
Any discrepancies should be reported at this time. Discrepancies not reported
before the cashier leaves Cash Control will not be corrected.
Cashiers must complete the top part of the Cash Control Sheet including name,
the till number checked out and the date.
Currency Pick Up
Periodically, and authorized Cash Control representative (verified by the
presentation of an ID) may pick up excess currency from a unit. When this is
done, the cashier will receive the pink copy of the Pick Up Slip as
verification. It is the cashier's responsibility to verify that this slip is
complete with the unit number, till number, date, time and amount picked up.
This slip should be signed by both the cashier and the Cash Control
representative.
Till Check-in
The following items must be turned in with all tills:
o An "X" or "Z" read
o Pink and Yellow copies of the Register Balance Form. The RBF should be
completed prior to leaving the unit.
o Journal Tapes marked with till number, and the name and number of all
units worked in
o Checks and travelers checks marked with till number and endorsement stamp
o Bugs Bunny Money, Scrip Money, or other vouchers marked with till number
o Credit Slips signed by the guest and marked with till number
o Draft Capture
o Pick up slips
o Currency, faced and stacked neatly
o Coin, bagged
o Void Log approved by Supervisor
o Cash Control Sheet, approved by Supervisor
Tills are to be locked before leaving the unit to return them to Cash Control.
Cashiers must have their till audited by Cash Control at the end of their shift.
A completed copy of the RBF will be returned to the Lessee unit on a daily
basis.
<PAGE>
REGISTER BALANCE FORM (RBF)
DO NOT USE RED INK - PRESS FIRMLY WHEN WRITING DATE ______________
INSTRUCTIONS
PRINT TOP PORTION. FILL IN DATE, CASHIER NAME, BAG#, SS#, AND IBM#
FILL IN LINES C THROUGH J WHILE WAITING IN LINE.
A. RECORD THE TOTAL AMOUNT FROM THE LOOSE COIN RECEIPT ON THIS LINE.
B. RECORD THE TOTAL AMOUNT FROM THE FINAL CURRENCY RECEIPT ON THIS LINE.
C. ADD THE DOLLAR AMOUNTS OF ALL PERSONAL CHECKS AND RECORD ON THIS LINE.
D. ADD THE DOLLAR AMOUNTS OF ALL TRAVELER CHECKS AND RECORD ON THIS LINE.
E. ON THE LEFT SIDE OF THE FORM, LIST THE QUANTITY OF EACH ROLLED COIN TYPE
AFTER THE x. MULTIPLY THE QUANTITY TIMES THE VALUE OF EACH ROLL AND WRITE THE
RESULT IN THE TOTAL COLUMN. ADD THE TOTAL COLUMN DOWN. FOLLOW THE ARROWS TO THE
RIGHT, AND LIST THE TOTAL ROLLED COIN ON LINE E.
F. RECORD THE TOTAL CREDIT CARD AMOUNT FROM YOUR CLERK ID REPORT.
G. ADD THE TOTALS OF ALL ACCT REC AND RECORD ON THIS LINE. TO IDENTIFY: ACCT
REC WILL HAVE "ACCT REC" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
H. ADD ALL BUGS BUNNY MONEY TOGETHER AND RECORD ON THIS LINE.
I. ON THE LEFT SIDE OF THE FORM, RECORD EACH PICKUP FROM YOUR YELLOW RECEIPTS.
FOLLOW THE ARROWS TO THE RIGHT AND LIST THE TOTAL PICKUPS AMOUNT ON LINE I.
J. ADD THE TOTALS OF ALL COUPONS AND RECORD ON THIS LINE. TO IDENTIFY: COUPONS
WILL HAVE "COUPON" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
K. ADD THE TOTALS OF LINES A THROUGH J AND RECORD ON THIS LINE.
L. WRITE THE AMOUNT OF THE TILL/BANK THAT YOU CHECKED OUT AT THE BEGINNING OF
YOUR SHIFT.
N. SUBTRACT LINE L FROM LINE K.
SIGN YOUR NAME ON THE PREPARED BY LINE.
CASHIER NAME_________________________________________ BAG # |_|_|_|_|_|
SOC SEC # |_|_|_|_|_|_|_|_|_| IBM # |_|_|_|_|
- -----------
ROLLED COIN
- -----------
VALUE QTY TOTAL
----- --- -----
PENNIES $.50 x ____ = $________.__ LOOSE COIN RECEIPT _________.__ A
NICKELS $ 2. x ____ = $________.__ FINAL CURRENCY _____________.__ B
DIMES $ 5. x ____ = $________.__ PERSONAL CHECKS ____________.__ C
QUARTERS $ 10. x ____ = $________.__ TRAVELERS CHECKS ___________.__ D
TOTAL ROLLED COIN -> -> -> -> ROLLED COIN ________________.__ E
PICKUP # 1 __________________.__ CREDIT CARDS _______________.__ F
PICKUP # 2 __________________.__ ACCTS RECEIVABLE ___________.__ G
PICKUP # 3 __________________.__ BUGS BUNNY MONEY ___________.__ H
TOTAL PICKUPS -> -> -> -> TOTAL PICKUPS ______________.__ I
COUPONS ____________________.__ J
TOTAL DEPOSIT_______________.__ K
(ADD A THROUGH J)
LESS: TILL/BANK ___________.__ L
NET DEPOSIT ________________.__ M
(K-L)
PREPARED BY __________________________________________________
- --------------------------------------------------------------------------------
CASHIERS --- DO NOT FILL OUT BELOW THIS LINE
- --------------------------------------------------------------------------------
GUEST LEFT CHANGE ______________________.__ O TOTAL ADJUSTED SALES ______.__ N
ADJUSTED NET DEPOSIT (M-O) _____________.__ P
CASH VARIANCE (P-N) ____________________.__ OVER/SHORT _________________.__
(M-N)
TRANSFER 1 TRANSFER 2 TRANSFER 3
---------- ---------- ----------
SALES SALES SALES
TO UNIT _______________ TO UNIT _______________ TO UNIT _______________
GROSS GROSS GROSS
SALES ______________.__ SALES ______________.__ SALES ______________.__
LESS: LESS: LESS:
REFUNDS ____________.__ REFUNDS ____________.__ REFUNDS ____________.__
LESS: LESS: LESS:
VOIDS ______________.__ VOIDS ______________.__ VOIDS ______________.__
ADJUSTED ADJUSTED ADJUSTED
SALES ______________.__ SALES ______________.__ SALES ______________.__
TOTAL (TRANSFER 1+2+3)
----------------------
GROSS
SALES ______________.__
LESS:
REFUNDS ____________.__
LESS:
VOIDS ______________.__
ADJUSTED
SALES ______________.__
MANUAL
SALES TAX __________.__
TOTAL #
VOIDS _________________
CONTROL CLERK________________ CC AGENT ___________________
WHITE COPY - CSH CNTRL YELLOW - CSH CNTRL PINK - INT CNTRL
<PAGE>
Exhibit 10.12
Six Flags Great America
Shockwave
<PAGE>
RX TECHNOLOGY AGREEMENT
THIS RX TECHNOLOGY AGREEMENT is made as of this 1st day of April, 1998, by
and between SIX FLAGS GREAT AMERICA, a division of Six Flags Theme Parks Inc., a
Delaware Corporation, having offices at 542 North Route 21, Gurnee, IL ("Six
Flags") and RX Technology a corporation, having offices at P.O. Box 9112,
Mandeville, LA 70470 ("Lessee").
WITNESSETH
WHEREAS, Six Flags owns, operates or manages the theme amusement facility
which is open to the general public and known as Six Flags Great America in
Gurnee (the "Park").
WHEREAS, RX Technology desires to operate a retail concession known as RX
Technology (the "Concession") to sell photographs of guests riding "ShockWave,
Eagle, Kiddie Coaster" (the "Goods") in the Park as set forth herein;
WHEREAS, Six Flags desires to grant RX Technology a license to operate the
Concession in the Park, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, Six Flags and RX Technology agree as follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX Technology a license to operate the Concession in the Park
in such locations of the Park as is set forth on Exhibit A-1 hereto during the
period of time (the "Term") commencing April 1, 1998 (the "Commencement Date")
and terminating at the end of the Park's 1999 operating season. In the event
that RX Technology meets or exceeds a year to date gross per capita two year
average of $.16 of the locations as set forth, an Exhibit A-1 at the end of the
1999 operating season, the existing Agreement will be extended through the 2000
operating season (the "Termination Date").
2. OPERATION.
A. Hours of Operation.
RX Technology agrees to operate the Concession during the
hours and days, including Sundays and holidays, that the Park is open for
business in accordance with schedules prepared by Six Flags which Six Flags may
modify in Six Flags' sole discretion at any time on twenty-four (24) hours
notice to RX Technology and such additional hours as are required by Six Flags
(the "Operating Hours"). RX Technology acknowledges that Six Flags will suffer
great harm if RX Technology breaches the agreement set forth in this subsection,
the amount of which would be difficult to determine. Therefore, RX Technology
agrees to pay Six Flags liquidated damages of $50.00 for each Park operating day
that RX Technology opens the Concession thirty (30) minutes after the opening
time of the Park's Operating Hours and/or closes the Concession thirty (30)
minutes before the closing time of the Park's Operating Hours upon notice
thereof by Six Flags and such
<PAGE>
liquidated damages amount shall be increased an additional $50.00 for each
successive violation of Park Operating Hours upon notice thereof by Six Flags,
up to a maximum liquidated damages amount of $500.00.
B. Approval of Goods.
RX Technology agrees to submit samples of all products
detailed plans, specifications, drawings and other information with respect to
Goods for sale to be made available to customers in the Park in connection with
the Concession, for Six Flags' approval in advance of sale of the same. RX
Technology agrees to make such changes to the Goods, at its sole cost and
expense, as Six Flags shall reasonably determine. RX Technology also agrees to
coordinate with the Park in coding each of RX Technology's Goods and inputting
the same in the cash resister for tracking purposes. To the extent requested by
Six Flags, RX Technology shall comply with Six Flags' point of sale and other
information systems requirements.
C. Price of Goods.
(i) RX Technology agrees to submit to Six Flags for its review
and approval, a retail price list of all RX Technology's Goods for sale to
customers of the Park (the "Approved Price List") at least two (2) weeks prior
to Commencement Date or any proposed change in any previously approved price
list. RX Technology agrees to make changes to the Approved Price List as Six
Flags shall reasonably request. RX Technology shall be responsible for all costs
and expenses associated with production and printing of the Price List and any
changes thereto, and such costs shall not be deducted from Net Revenue (as
hereinafter defined).
(ii) RX Technology agrees to make changes to the Approved
Price List (the "Revised Price List") at any time during the Term if the parties
mutually determine, that an adjustment is appropriate. RX Technology shall be
responsible for all costs and expenses associated with production and printing
of the Revised Price List, and such costs shall not be deducted from Net Revenue
(as hereinafter defined).
(iii) RX Technology agrees that it shall not make its Goods
available to any party free of charge or at a discounted price unless RX
Technology is engaging in sampling activities approved by Six Flags, etc.
Notwithstanding the foregoing, RX Technology agrees to offer such discounts on
its Goods as Six Flags shall require and as Six Flags shall offer in locations
owned by Six Flags. RX Technology shall, at all times, charge customers,
including without limitation, family members, employees and business associates,
the price set forth on the Approved Price List for its Goods except as otherwise
expressly set forth herein.
D. Methods of Sale; Payment and Return Policies.
(i) The Goods shall be available for sale to customers of the
Park as follows: at point of purchase (each, a "Method of Sale"). A Method of
Sale shall be discontinued at the discretion of Six Flags.
(ii) The following forms of payment for RX Technology Goods
will be accepted: MasterCard, Visa, American Express and Discover credit cards
(collectively, the "Credit
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Cards"), checks, and cash (each, a "Form of Payment"). Six Flags may, in its
sole discretion, discontinue and, if applicable, require RX Technology to
discontinue any Form of Payment for Goods sold hereunder. Conversely, Six Flags
may, in its sole discretion, require RX Technology to accept such additional
forms of payment as may be accepted by Six Flags in the future; and in so doing,
RX Technology agrees to submit to such reasonable rules/restrictions with
respect thereto. Payment for the Goods shall be in accordance with the
provisions of Exhibit B - Payment/Return Agreement, which is attached hereto and
incorporated herein.
E. Reports and Records.
(i) Upon commencement of RX Technology's daily operations, RX
Technology shall pick up a cash till from the Park's cash control facility, and
within one (1) hour after the close of each Park day, RX Technology shall
deliver to Park's cash control facility the following: (a) remaining cash till,
(b) a daily report of the day's operations on Six Flags' "Daily Sales Report"
form, and (c) the day's daily gross receipts, including without limitation
credit card sales drafts, credit memos and all other materials evidencing sales
transactions during such day (collectively, the "Deposits"). Such Deposits are
received subject to audit by Six Flags as set forth herein and Six Flags may
correct and credit or debit RX Technology for any inaccuracies or errors in RX
Technology computation of Deposits. Six Flags may refuse to accept or revoke
acceptance of any Deposits, including any sales drafts or credit adjustments,
which are illegible or which fail to comply with the terms of this Agreement,
including, but not limited to, any federal or state law.
(ii) RX Technology shall retain copies of sales drafts and
other materials evidencing sales transactions related to sale of Goods for the
Term of the Agreement from date of transaction. This Section shall survive the
termination of the Agreement.
F. Compliance with Laws.
RX Technology agrees that at all times during the Term it
shall be in compliance with all laws, rules and regulations with respect to
operation of the Concession in the Park, including, without limitation, all
environmental and employment laws, rules and regulations. RX Technology agrees
that it shall be responsible for obtaining, at its sole cost and expense, all
licensing and/or permits required in connection with operation of the Concession
in the Park.
G. Employees.
(i) RX Technology acknowledges that it has no authority to
employ persons on behalf of Six Flags, and no employees or agents of RX
Technology shall be deemed to be agents or employees of Six Flags.
(ii) Without Six Flags' prior written consent, RX Technology
shall not, until after the second anniversary of the end of the Term, solicit
for the purpose of hiring or employ, directly or indirectly, any employee
employed by, or independent contractor engaging in business with, Six Flags, in
each case, during the Term. This subsection of the Agreement shall survive until
the second anniversary of the end of the Term.
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(iii) RX Technology represents and warrants that it shall, at
its sole cost and expense, recruit, train, supervise and furnish the Goods of at
least three (3) persons to operate the and perform Goods in connection with the
Concession as set forth in Exhibit C attached hereto and incorporated herein
("RX Technology Employees") during Operating Hours. RX Technology acknowledges
that Six Flags will suffer great harm if RX Technology breaches the agreement
set forth in this subclause, the amount of which would be difficult to
determine. Therefore, RX Technology agrees to pay Six Flags liquidated damages
of $250.00 for each Park operating day that RX Technology fails to furnish the
Goods of three (3) trained persons to operate the Concession and/or fails to
operate the Concession during the Operating Hours.
(iv) RX Technology shall be fully responsible for all RX
Technology's Employees, including without limitation, responsibility for all
salaries and other compensation, withholding taxes, worker's compensation
insurance, union dues, if applicable, and other required payments in connection
with such employees and shall be in compliance with all laws, rules and
regulations with respect thereto.
(v) Each prospective employee of RX Technology shall complete
an employment application, the form of which must be approved by Six Flags,
prior to beginning work in the Park.
(vi) RX Technology agrees to use best efforts to cause its
employees to attend Park training/orientation programs as may be required by Six
Flags and comply with Park rules and regulations, including without limitation
submission to drug testing, as may be required. RX Technology further agrees to
cause its employees to wear such uniforms as shall be approved in advance by Six
Flags, if Six Flags provides said uniforms. RX Technology agrees that all such
uniforms shall be returned in good condition, normal wear and tear excepted, to
Six Flags at the end of Term. RX Technology agrees to pay Six Flags for any
damage to, or loss of, such uniforms. Six Flags reserves the right to set off
the amounts thereof from RX Technology share of Net Revenues.
(vii) RX Technology agrees to verify, at its sole cost and
expense, the references of RX Technology Employees, including without
limitation, prior positions of employment, reasons for leaving prior positions,
age, education, criminal records, immigration status, and right to work in the
United States and use due diligence to determine if any of RX Technology
Employees have provided false information or omitted significant information
with respect to their backgrounds and/or prior employment.
(viii) RX Technology represents and warrants that it shall
not, to RX Technology knowledge, employ any person to work in the Park who has a
criminal history without Six Flags' knowledge and approval with respect to said
employment. Personality Portrait's knowledge, for the purpose described in the
immediately preceding sentence, is the knowledge that RX Technology would have
known had RX Technology performed a reference check of the type performed by Six
Flags. RX Technology acknowledges that great harm can be suffered by Six Flags
if a RX Technology employee is discovered to have a criminal record that could
have been discovered with a criminal history background check of the type
performed by Six Flags with respect to all prospective employees of Six Flags.
The parties agree that it will be difficult to determine the damages suffered by
Six Flags in the event of RX Technology failure to undertake such background
checks. Accordingly, the parties agree that in the event RX Technology employs
an individual for
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work in the Park for whom RX Technology has not, prior to hiring such person,
undertaken a criminal history background check of the type performed by Six
Flags, then RX Technology shall pay Six Flags liquidated damages of $1,000.00
with respect to each such employee of RX Technology regardless of whether the
background check would have revealed any evidence of criminal history.
(ix) At the request of Six Flags, RX Technology shall make
available to Six Flags all information obtained with respect to its employees,
including, without limitation, criminal history background checks.
(x) RX Technology agrees to terminate employment at the Park
for any RX Technology Employee working in the Park who: (a) is subsequently
discovered to have a criminal history and, after being advised of the same, Six
Flags does not approve said employment, (b) fails to comply with Park rules or
(c) made material misstatements or omissions on their employment application. RX
Technology agrees to indemnify Six Flags from and against any claims by RX
Technology Employees arising from or related to such dismissals.
(xi) Six Flags agrees that RX Technology may offer RX
Technology Employees discounts on Park admission and food/merchandise at the
Park that Six Flags offers its employees in accordance with Park policy.
3. FACILITY.
A. Rights/Responsibilities.
(i) In connection with RX Technology operation and management
of the Concession, Six Flags agrees that RX Technology shall be entitled use of
and/or access to: (a) the facility at which the Concession is operated (the
"Facility"), (b) adjacent portions of the Facility, as may be necessary for the
operation and maintenance of the Concession, and (c) common ways and areas
within the Park for incinerator or trash purposes, loading and unloading
supplies and installation, repair and maintenance of Equipment and/or other
elements related to the Concession.
(ii) Six Flags will be responsible for heating, ventilation,
air conditioning, plumbing, electrical, expenses related to the operation of the
Concession in the Facility. Six Flags also agrees to provide the following: (i)
passes to enter the Park for RX Technology Employees in the performance of their
duties, and (ii) Lessees's Employee access to the Park employee parking areas on
a first-come, first-serve basis to be used in the performance of their duties.
(iii) RX Technology will be responsible for cleaning the
Facility and area and removing trash from said areas, the regular maintenance of
the Facility related to the operation of the Concession in the Facility.
B. Construction.
(i) Prior to the construction of the Facility in the Park at
which the Concession is operated, RX Technology will submit its plans to the
Park for approval. These plans
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will include exterior and interior finishes as well as RX Technology proposed
signage. RX Technology will design the exterior and interior of the Facility and
the signage so that they will be consistent with the theme of the area of the
Park in which the Facility is located and Six Flags' design requirements policy
(the "Design Policy") (a copy of the Design Policy in effect as of the date
hereof is attached hereto and incorporated herein), as Six Flags may amend from
time to time upon notice to RX Technology.
(ii) RX Technology agrees to obtain all permits, consents,
approvals and clearances with respect to any construction contemplated hereunder
and comply with all laws, rules and regulations with respect thereto, including
Six Flags Maintenance Department rules, and shall secure Six Flags' prior
approval with respect to the following: (a) contractors, subcontractors,
designers, architects and materialmen who will perform work or Goods or supply
materials in connection with the construction of the Facility, (b) dates of
commencement and completion with respect to each phase of the construction of
the Facility and (c) agreements with all contractors, subcontractors, designers
architects and materialmen. RX Technology shall only enter into construction
agreements hereunder which permit assignment to Six Flags and its affiliates.
All construction hereunder shall be made in a good and workmanlike manner.
(iii) Six Flags shall have the right, but not the obligation,
to test and inspect the construction of the Facility. RX Technology agrees, at
its sole cost and expense, to remedy any problems with the Facility, upon Six
Flags' request, including without limiting the foregoing, problems associated
with defective design, engineering, workmanship, failure of factory
construction, materials or any component parts.
(iv) RX Technology shall not place, maintain, or permit to be
placed or maintained on any exterior portion of the Facility or on the interior
side of or immediately adjacent to any glass door, wall or window of said
Facility, or otherwise display outside said Facility in the confines of the
Park, any signs, advertisements, lettering, trade, brand or service name, mark
or logo, neon lights, flood lights, colored lights, flashing lights or other
exterior lighting without prior written consent of Six Flags, which consent may
be granted or withheld in the absolute discretion of Six Flags. RX Technology
shall not use in, on or about said Facility, or elsewhere in the Park, any sound
producing or reproduction equipment audible inside or outside said Facility,
without the prior written consent of Six Flags.
C. Alterations.
Upon approval by RX Technology in writing, Six Flags shall
have the right, but not the obligation, to make alterations, modifications,
additions, improvements or updates, at RX Technology sole cost and expense, to
the Facility and/or the Equipment (as hereinafter defined), as hereinafter
defined (collectively, the "Alterations"); provided, however, that RX Technology
shall have been deemed to approve Alterations if: (i) the Alterations are
reasonably required by Six Flags: (a) for safety, quality or financial control
reasons, or (b) if new technology and improvements are made to the same type of
Facility and/or Equipment in the industry and/or (ii) required by any applicable
laws, rules or regulations. All such Alterations shall be made in a good and
workmanlike manner. RX Technology agrees to pay Six Flags for the reasonable
cost of such Alterations within thirty (30) days of receipt of an invoice
therefor.
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(i) RX Technology agrees to make alterations, modifications,
additions, improvements or updates, at its sole cost and expense (including any
necessary design and engineering expenses), to the Facility and/or the
Equipment, as shall be mutually agreeed to by the parties and in accordance with
the Design Policy.
(ii) RX Technology covenants that it will not make, or suffer
or permit to be made, any Alterations in, on, or to the Facility and/or the
Equipment without first: (a) notifying Six Flags in writing sufficiently in
advance of the commencement thereof to enable Six Flags to post or record or
both, appropriate and effective notices of non-responsibility, (b) obtaining the
written consent of Six Flags thereto, which consent Six Flags shall not
unreasonably withhold provided that the proposed Alterations are of high quality
and in harmony with the overall design and appearance of the Park, and necessary
to operate the Concession in a safe and efficient manner, (c) obtaining the
written approval of Six Flags as to all contractors, subcontractors, and
materialmen who will perform work or Goods or supply materials in connection
therewith and (d) obtaining the written consent of Six Flags with respect to the
proposed commencement and completion date of such Alterations.
D. Maintenance and Repair.
RX Technology agrees to properly maintain and keep in good
repair and condition the Facility and/or the Equipment, at its sole cost and
expense. The Facility and/or the Equipment shall be maintained in keeping with
the themeing and overall aesthetics of the Park. In the event any portion of the
Facility and/or the Equipment is inoperative or a component thereof has failed
or is defective, RX Technology shall repair the same no later than seventy-two
hours of RX Technology knowledge of the same or, in the case of Equipment, RX
Technology shall secure comparable equipment (the "Replacement Equipment") and
deliver the same to the Park until such time as the Equipment is repaired.
Failure of RX Technology to comply with the provisions of this subsection shall
constitute default hereunder.
E. Relocation.
RX Technology agrees that Six Flags shall have the right to
relocate RX Technology to another Facility in the Park, for any reason, provided
that Six Flags agrees to exercise reasonable care to minimize interference in or
to RX Technology operations.
F. Ownership.
(i) It is understood and agreed that the Facility and the
improvements thereto, whether made by RX Technology or Six Flags hereunder,
shall remain the property of Six Flags or RX Technology respectively, except the
trademarks and other indicia of Six Flags, including an Alternate Name
(hereinafter defined) ("Six Flags' Trademarks") and the trademarks of Six Flags'
affiliates, including Warner Bros. And DC Comics ("Affiliates' Trademarks")
shall be the property of Six Flags and its affiliates and in the event of
expiration or termination hereunder Six Flags' Trademarks and its Affiliates'
Trademarks shall be removed therefrom and returned to Six Flags at RX Technology
sole cost and expense.
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(ii) It is further understood and agreed that the improvements
thereto, whether made by RX Technology or Six Flags hereunder, shall remain the
property of Six Flags.
G. Interference with Park/Park Operations.
RX Technology understands that this Agreement may not be
asserted to affect or impede Six Flags' normal Park operations, including
without limitation, upgrading Park equipment, building and/or facilities,
buying/selling Park games or attractions, entering into agreements with other
parties or locating or changing other facilities, equipment, walkways or signage
into or surrounding the Facility, each without the consent of RX Technology. RX
Technology shall have no exclusive rights with respect to the operation of
concessions in the Park similar in nature or type to the Concession.
4. EQUIPMENT.
A. Description.
(i) RX Technology agrees to provide, at its sole cost and
expense, all equipment, supplies, furnishings, displays, and other signage, cash
registers, and any other materials necessary to operate the Concession (the
"Equipment"). Notwithstanding the foregoing, RX Technology agrees that it shall
use only Six Flags provided, credit card processing equipment (collectively,
"Six Flags' Equipment"), as appropriate, for all transactions and, in
consideration therefore, RX Technology shall pay Six Flags no later than thirty
(30) days of receipt of an invoice therefor.
B. Delivery, Installation and Removal.
(i) RX Technology agrees that it shall be responsible for the
shipment, installation and, promptly following the end of the Term, the removal,
of the Equipment, including parts therefor and/or Replacement Equipment (as
hereinafter defined), at its sole cost and expense. RX Technology agrees to
coordinate with Six Flags with respect to the dates and times of shipment and
installation of the Equipment, Replacement Equipment and/or parts therefor.
(ii) Six Flags shall have the right, but not the obligation,
to test and inspect the Equipment and the installation and operation of the
Equipment during the Term. RX Technology agrees, at its sole cost and expense,
to remedy any problems with the Equipment and installation thereof, upon Six
Flags' request, including without limiting the foregoing, problems associated
with defective design, engineering, workmanship, failure of factory
construction, materials or any component parts.
C. Additional Equipment.
RX Technology agrees to install and/or supply additional
Equipment, as determined by mutual agreement of the parties, at no additional
cost to Six Flags.
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5. PAYMENT TO RX TECHNOLOGY.
A. RX Technology shall collect, record and submit the Deposits of
the Concession to Six Flags and Six Flags shall pay RX Technology the following
share of Net Revenues (as hereinafter defined) during each operating season of
the Term as follows:
Year RX Technology % of Net Revenue
---- ------------------------------
1998-1999 62%
2000 62%
B. "Net Revenue" means gross revenue of the Concession during the
applicable period less the sales tax paid or payable in respect thereto or
otherwise paid. RX Technology agrees that Six Flags shall have the right to
deduct the following from RX Technology share of the Net Revenue: (ii) cash
shortages, (iii) credit card, check processing and other transaction costs and
charges, including charge backs and return check amounts and fees related
thereto, (iv) the cost of goods taken from Six Flags' warehouse, to the extent
permitted by Six Flags, or otherwise and not paid for, (v) the cost of leased
Park equipment, if any, each during the applicable period, (vi) the cost
associated with the damage or loss of uniforms as set forth in more detail in
Section 2 G (vi) hereof, and (vii) the cost of any bill or charge which is the
basis or which may be the basis for a lien against the Facility as set forth in
more detail in Section 9 A (vii) hereof.
C. RX Technology share of the Net Revenue will be calculated at the
end of the week. For payment purposes, a week shall be defined as the seven (7)
day period beginning Monday and ending on and including Sunday. Payments shall
be directed as set forth in this Agreement or as RX Technology may otherwise
direct in writing and shall be payable seven (7) days from Six Flags'
calculation thereof. Six Flags shall have no further monetary liability or
obligation to RX Technology. Payments shall be made to RX Technology at the
address indicated in the first paragraph of this Agreement or otherwise as
requested in writing by RX Technology.
D. Notwithstanding Six Flags' deduction of sales tax from Net
Revenue, RX Technology represents and warrants that all payments by Six Flags to
RX Technology of RX Technology share of Net Revenue hereunder are exempt from
any United States federal, state and local taxes or other assessments, including
any withholding taxes. RX Technology shall be solely responsible for, and shall
pay when due, assessments arising from or in connection with the receipt by RX
Technology of such Net Revenue.
6. AUDIT RIGHTS.
Until all claims and rights of Six Flags shall have been fully
ascertained, fixed and paid RX Technology shall maintain, in accordance with
generally accepted accounting principles, separate and accurate records of the
gross receipts of the Concession at the Park showing in detail all business
transacted by RX Technology. Six Flags shall have the right, at all reasonable
times, to examine and inspect such records as well as any other business records
of RX Technology pertaining to the operation of the Concession. This Section
shall survive the termination of this Agreement.
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7. CHANGE IN FINANCIAL CONDITION.
RX Technology agrees to notify Six Flags promptly of any
significant/material change in its financial condition.
8. TRADEMARKS.
A. RX Technology hereby grants Six Flags the non-exclusive
royalty-free right and license to use RX Technology trademarks, trade names,
service marks, logos and symbols, ("RX Technology Trademarks") for the Term of
the Agreement in connection with the Concession/Attraction in the Park. RX
Technology Trademarks are and shall remain RX Technology sole and exclusive
property. Six Flags agrees to include a trademark symbol (TM) on the first and
most prominent reference to RX Technology Trademarks and a protective trademark
legend in materials as shall be required by RX Technology hereunder.
B. Six Flags reserves the right to create an alternate name and/or
logo (collectively, the "Alternate Name") for the Concession. Six Flags shall
own all right, title and interest in and to such Alternate Name, and all
goodwill with respect thereto shall inure to the benefit of Six Flags. RX
Technology agrees that any Alternate Name shall be the exclusive property of Six
Flags.
C. Six Flags' Trademarks are and shall remain the sole and exclusive
property of Six Flags, and Affiliates' Trademarks are and shall remain the sole
and exclusive property of Six Flags' affiliates, and RX Technology shall not use
nor permit others to use Six Flags' Trademarks, including the Alternate Name,
and Affiliates' Trademarks for any purpose without the prior written consent of
Six Flags nor do anything which could in any way conflict with Six Flags' or its
affiliates' use or ownership of such trademarks.
9. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS.
A. RX Technology represents and warrants that:
(i) RX Technology is, and will during the term of this
Agreement be, solvent and able to meet its obligations hereunder as and when
they become due;
(ii) RX Technology shall not use, or suffer or permit any
person or persons to use, the Equipment and/or Facility for any purpose other
than as set forth herein without the prior written consent of Six Flags, or in
any unlawful manner or for any unlawful purpose;
(iii) RX Technology shall comply with, and use its best
efforts to cause its agents and employees to comply with all rules and
regulations of the Park as may be in effect from time to time. RX Technology
confirms that it has been provided with a copy of the rules and regulations of
the Park;
(iv) RX Technology will not offer or provide any Goods in or
from the Concession or elsewhere in the Park, without the prior express written
authorization of Six Flags.
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Any uncertainty with respect to the Goods which RX Technology is authorized to
offer or provide shall be resolved in the manner which most limits and restricts
RX Technology's authority, and any reasonable interpretation of such authority
by Six Flags shall be binding upon RX Technology;
(vi) the Concession, including the Facility and the Equipment
with respect thereto, will be fit and safe for its intended commercial use,
shall be free from defects, shall comply with all applicable laws, ordinances
and regulations, including building, electrical and/or other codes, and will
meet the operation objectives set forth herein;
(vii) RX Technology shall promptly pay all bills and charges
relating to the Concession in the Park, including any Alterations to the
Equipment and/or the Facility, and shall protect and indemnify Six Flags and the
Park against all such bills and charges and liens relating thereto. In the event
that RX Technology desires to contest any bill or charge which is the basis or
which may be the basis for a lien against the Facility constituting the
Concession or the Park or both, RX Technology shall, within five (5) days of
notice therefor, obtain a bond of, or deposit collateral with, a responsible
corporate surety or depository to protect against any such lien in the amount of
any such bill estimated costs and expenses, including without limitation,
attorney's fees and interest. If RX Technology fails to post such bond or
collateral within the aforementioned time period, Six Flags may, without
prejudice to any other right or remedy of Six Flags herein have the option to:
(a) pay any such claim, bill or charge on RX Technology's behalf, and RX
Technology shall reimburse Six Flags on demand for the amount of any such
payment or (b) have the right to set off the amount of said claim, bill or
charge from the portion of RX Technology Net Revenue due hereunder. Should any
claim or lien be filed or recorded affecting the Facility or the Park or both,
or should any action affecting the title thereto be commenced, RX Technology
shall give Six Flags written notice thereof promptly after the same becomes
known to RX Technology, and RX Technology shall thereafter remedy the same with
respect to the Facility or the Park or both;
(viii) RX Technology Trademarks, and/or any advertising,
promotion or publicity materials supplied Six Flags by RX Technology hereunder
will not violate, infringe upon or give rise to any adverse claim with respect
to any common law or other right whatsoever, including, without limitation, any
copyright, trademark, service mark, right of privacy or publicity or contract
right of any party or violate any other law; and
(ix) Except as otherwise expressly permitted herein, RX
Technology shall not have the right to use or permit the use of any of Six
Flags' Trademarks, including any depiction of the Park or Affiliates' Trademarks
without Six Flags' prior written consent identifying the use consented to, which
consent may be granted or withheld in the absolute discretion of Six Flags. This
Section shall survive the termination of the Agreement.
10. SUBCONTRACTORS.
Six Flags acknowledges that RX Technology has the right to utilize
subcontractors (collectively, the "Subcontractors") to fulfill the obligations
set forth hereunder, subject to Six Flags' prior approval with respect thereto
and the work to be performed thereby. RX Technology agrees that (i) the terms of
the agreement between RX Technology and any Subcontractor will comply with all
the terms of this Agreement, including, without limitation, the provisions
concerning
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criminal background checks of persons working at the Park for or on behalf of RX
Technology and the provisions concerning insurance, (ii) there will be no
disruption (including strike) in the operation of the Concession whatsoever
(even in the event of replacement of the Subcontractors), and (iii) RX
Technology shall not cause or permit any liens, claims or encumbrances to be
placed on or with respect to the Equipment, Facility, Park or any other property
of Six Flags or RX Technology which is the subject of this Agreement.
11. ASSIGNMENT.
The obligations of RX Technology herein are personal in nature and
this Agreement and the obligations of RX Technology hereunder shall not be
assigned or otherwise transferred by RX Technology, in whole or in part, to any
third party without the prior written consent of Six Flags. Six Flags may assign
this Agreement to any affiliate of Six Flags. For purposes of this Agreement,
the term "assigned" or "assignment" shall include, without limitation, a
consolidation or merger of RX Technology with or into another party, a
reorganization or a sale of all or substantially all of the assets of RX
Technology to another party, and/or transfer of a controlling interest in RX
Technology business in or to another party.
12. INDEMNITY.
RX Technology covenants that it will protect, defend, hold harmless
and indemnify Six Flags, its directors, officers, employees, agents,
subsidiaries, affiliates, partners and parent companies from and against any and
all expenses, claims, actions, liabilities, attorney's fees and costs, damages
and losses of any kind or nature whatsoever (including, without limitation of
the foregoing, death of or injury to persons and damage to property), actually
or allegedly resulting from or connected with the operation of the Facility
and/or the Concession (including, without limitation of the foregoing, goods
sold, work done, Goods rendered or products utilized therein, advertising and
promotion therefor, lack of repair in or about the area occupied or arising out
of any actual or alleged infringement of any patent or claim of patent,
copyright, trademark, service mark, or trade name) or from the omission or
commission of any act, lawful or unlawful, or breach of this Agreement by RX
Technology or its agents or employees, whether or not such act is within the
scope of the employment of such agents or employees and not due to the
negligence or willful misconduct of Six Flags or its employees and agents. This
Section shall survive the termination of the Agreement.
13. INSURANCE.
A. To insure RX Technology performance of the obligations and
warranties as set forth herein, but not by way of limitation, RX Technology
agrees, at its expense, to procure and maintain Comprehensive General Liability
against claims for bodily injury, personal injury or death and property damage,
Contractual Liability, Products Liability, Automobile Liability against claims
for bodily injury, personal injury or death and property damage, Risk Builder's
Risk Insurance, including coverage against collapse, written on a completed
value basis and Worker's Compensation Insurance, including an employer liability
endorsement (collectively, the "Insurance") each covering claims occurring upon,
in or about the Park, and on, in or about the adjoining streets, sidewalks and
passageways and identifying this Agreement, the Park and Six Flags Theme Parks
Inc. as being named as additional insured on the Insurance policies described
herein, including any renewals of
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such Insurance. The Insurance shall apply separately to each insured against
whom a claim is made or suit is brought. The Insurance shall remain in full
force and effect for the Term of this Agreement and one (1) year thereafter, and
all such Insurance shall include a waiver of subrogation against Six Flags. This
Section shall survive the termination of the Agreement.
B. The Insurance shall be written by a company rated "A" or better
by Best Insurance Reports, or by such other company consented to in writing by
Six Flags. The policy of Insurance will provide, inter alia, for thirty (30)
days advance notice to Six Flags and RX Technology of any proposed policy
modification or cancellation. Upon any cancellation and/or modification of any
Insurance policy required hereby, and prior to the effective date thereof, RX
Technology shall deliver replacement insurance to Six Flags. RX Technology shall
forward the Certificate of Insurance form attached hereto and incorporated
herein as Exhibit D to its insurer for execution and transmit such executed
Certificate to Six Flags promptly after execution of this Agreement, and RX
Technology shall also supply Six Flags with its official Certificate of
Insurance promptly after execution of this Agreement for its records.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out of
a single occurrence and $5,000,000 for all claims in the aggregate.
D. All Insurance policies required to be maintained shall be primary
and shall not require contribution from any coverage maintained by Six Flags,
and shall not contain, without Six Flags' prior written consent, any special or
non-customary exclusions.
E. RX Technology shall further, upon request, furnish Six Flags with
a certificate from RX Technology insurance carrier certifying that RX Technology
has obtained Worker's Compensation insurance upon its employees, or an opinion
of counsel satisfactory to Six Flags that such coverage is not required.
F. RX Technology understands that Six Flags' rights and RX
Technology obligations hereunder shall not be limited or affected by the
provisions of this Section 14.
15. BREACH.
In the event of breach of any provision of this Agreement by RX
Technology or in the event RX Technology should become insolvent, file a
voluntary petition in bankruptcy, have a receiver, liquidator or trustee in
bankruptcy appointed over its affairs, have a significant material adverse
change in its financial condition, Six Flags may, at its option, then or at any
time thereafter while said breach continues, upon fifteen (15) days prior
written notice to RX Technology, terminate this Agreement and the license and
privileges granted hereby and be relieved of all further obligation hereunder
arising after the date of termination. In the event of termination hereunder, RX
Technology shall then quit and surrender the premises as set forth in this
Agreement and the license and privileges granted hereby shall then terminate;
provided, however, that RX Technology shall remain liable for all obligations
under this Agreement, and Six Flags may, in addition to any remedy herein
provided, recover from RX Technology any damages to which it may be entitled in
law or equity. This Section shall survive the termination of this Agreement.
13
<PAGE>
16. NOTICES.
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To Six Flags: Six Flags Great America
542 North Route 21
Gurnee, IL 60031
Att: Roy G. Dennis, Jr.
Fax: 847/249-7348
copy to: Six Flags Theme Parks Inc.
400 Interpace Parkway
Building C, Third Floor
Parsippany, NJ 07054-1191
Att: General Counsel
Fax: 201-331-7585
Fax: 201/299-7519
Phone: 973-402-8100
To RX Technology: RX Technology
P.O. Box 9112
Mandeville, LA. 70470
Att: Rex Gay
Fax: 504/727-9815
or to such other addresses as the parties may direct by written notice given as
hereinabove provided. Notice shall be deemed given when received as evidenced by
the return receipt or the date such notice is first refused, if that be the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
17. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, RX
Technology may, subject to any indebtedness of RX Technology to Six Flags,
promptly remove RX Technology Equipment from the Park, except that Six Flags'
Trademarks or Six Flags' Affiliates' Trademarks shall be removed from the
Equipment and remain at the Park, and RX Technology shall quit and surrender the
Facility in the Park in good condition, reasonable wear and tear excepted.
Unless the parties otherwise agree, if RX Technology fails to remove the
Equipment from the Park within five (5) days after termination of this
Agreement, then RX Technology shall be deemed to have abandoned such property
and title to the same shall at that time vest in Six Flags. Any costs and
expenses incurred by Six Flags in removing such abandoned property (including
the reasonable value of the Goods rendered by Park employees in connection
therewith) shall be paid to Six Flags by RX Technology promptly following demand
therefor. This Section shall survive the termination of this Agreement.
18. GOVERNING LAW.
14
<PAGE>
A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State of
Illinois (the "Specified State") and that the laws of the Specified State shall
govern the construction, interpretation and enforceability of this Agreement.
Should any dispute arise in connection with the construction, interpretation,
performance or enforcement of the provisions of this Agreement, Each of the
parties hereto agree that any such action shall be brought only in the courts
located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the relationship of the parties hereto, (ii) agree that any
such action, suit or proceeding shall be brought in any state or federal court
of competent jurisdiction sitting in the federal court district in the Specified
State, (iii) submits to the jurisdiction of such courts and (iv) to the fullest
extent permitted by law, agree that it will not bring any action, suit or
proceeding in any forum other than as provided herein (but nothing herein shall
affect the right of the Six Flags to bring any action, suit or proceeding in any
other forum to the extent necessary to enforce its rights under this Agreement).
19. RELATIONSHIP OF THE PARTIES.
RX Technology is an independent contractor. Nothing contained in or
done pursuant to this Agreement shall be construed as creating a partnership,
agency, joint employer, joint venture or landlord-tenant relationship. Except as
otherwise expressly provided in this Agreement, no party shall become bound,
with respect to third parties, by any representation, act or omission of the
other.
20. FORCE MAJEURE.
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God. In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
21. PUBLICITY.
A. Six Flags shall, at its discretion, develop, direct and produce
any and all advertising and promotion in connection with the Concession in the
Park for the purposes of advertising, promoting, publicizing and merchandising
the Concession in the Park. RX Technology agrees to cooperate, as necessary,
when requested to provide any advertising or promotion with respect to the
Concession.
B. Six Flags shall have the right to use RX Technology Trademarks
and the names of any person or entity rendering Goods on or associated with the
Concession, as well as any
15
<PAGE>
such person or entity's biography, photographic or non-photographic likeness and
recorded voice.
C. RX Technology shall not have the right to have or cause to have
sponsors with respect to the Concession without the prior written approval of
Six Flags.
D. RX Technology agrees that Six Flags may obtain sponsors for the
Concession which may include affixing signage in or around the Concession, and
any proceeds Six Flags derives in connection therewith shall be solely that of
Six Flags.
22. PROPRIETARY INFORMATION.
RX Technology agrees that this Agreement and all information
regarding the business operations, policies and practices of Six Flags
("Proprietary Information") acquired or learned in connection with the
activities conducted under this Agreement shall be deemed confidential and shall
be kept in strict confidence under appropriate safeguards. The term Proprietary
Information, as used herein, does not include any information that is or becomes
generally available to the public other than as a result of disclosure in
violation of this Agreement. This Section shall survive the termination of the
Agreement.
23. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
24. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules hereto)
constitutes the entire agreement between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
agreements and undertakings of the parties pertaining to the subject matter
hereof. This Agreement may not be modified except by written instrument duly
executed by the parties hereto
-------------------------------
16
<PAGE>
IN WITNESS WHEREOF, this RX Technology Agreement has been duly executed by
the parties hereto on the day and year first hereinabove written.
SIX FLAGS GREAT AMERICA,
(a division of Six Flags Theme Parks Inc.)
By: /s/ James H. Wintrode
--------------------------------------
James H. Wintrode
President
RX Technology:
By: /s/ Donald Rex Gay President 3-31-98
--------------------------------------
Rex Gay
President/Owner
-------------------------------
S-1
<PAGE>
Exhibit A
Location(s)
The locations are set forth below, subject to relocation in the reasonable
discretion of Six Flags.
SHOCKWAVE
EAGLE
KIDDIE COASTER
Ex. A - 1
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) RX Technology shall comply with Six Flags' credit
card procedures (the "Credit Card Procedures") (a list of the Credit Card
Procedures in effect as of the date hereof is attached hereto and is
incorporated herein), as Six Flags may amend them from time to time upon notice
to RX Technology, with respect to acceptance of Credit Cards as payment for any
Goods.
(ii) RX Technology agrees that it shall not: (A)
discriminate in favor of any Credit Card accepted for payment over another, (B)
require a minimum transaction amount or impose a surcharge as a condition for
honoring Credit Cards, (c) impose a requirement on Credit Card holders to
provide any personal information as a condition for honoring Credit Cards unless
otherwise required by the Credit Card Procedures, (D) make or require a
photocopy of a Credit Card, (E) make a Credit Card sale where only part of the
consideration due is paid by use of such Credit Card, or (F) accept a Credit
Card for any purpose which is prohibited by the Credit Card Procedures.
(iii) RX Technology shall not make a Credit Card sale to
any person if: (A) the Credit Card being presented has expired according to the
expiration date shown on such Credit Card, (B) the sale has been declined for
authorization, (c) RX Technology has reasonable grounds to believe the Credit
Card being presented is counterfeit, fraudulent or stolen, or (D) the signature
on the Credit Card does not appear to be the same as the signature on the sales
draft or the spelling of the signature on the sales draft is different from the
spelling of the name on the Credit Card. RX Technology shall use reasonable
efforts to retrieve any credit card from the customer when instructed by a
service provider in response to an authorization or other inquiry.
(iv) RX Technology agrees to display symbols of the
Credit Cards, supplied by Six Flags hereunder, at its Facility in the Park to
effectively inform customers of the Park that the Credit Cards are honored by RX
Technology.
(b) Returns and Adjustments.
(i) All disputes between RX Technology and any Credit
Card holder respecting any Credit Card transaction hereunder shall be settled
between RX Technology and such Credit Card holder. RX Technology agrees that in
the event of a Credit Card dispute, RX Technology shall reasonably address the
Credit Card holder's concern in a good faith manner.
(ii) RX Technology shall maintain a fair and consistent
policy for exchange and return of Goods and for the adjustment of amounts due on
Credit Card transactions
Ex. B - 1
<PAGE>
and such policy shall be the same as available to cash customers. RX Technology
shall make no cash refunds or payments to Credit Card holders for returns or
adjustments on Credit Card sales.
(iii) When a refund or payment is due to a Credit Card
holder for return or adjustment, RX Technology shall prepare, execute and
deliver to Six Flags or cause to be delivered to Six Flags a legible credit
adjustment memo on a form provided or approved by Six Flags and deliver to the
Credit Card holder a copy of the completed form. Each credit adjustment memo
shall be imprinted with or contain the following: (A) Six Flags' name and
merchant account number, (B) city and address where the credit or adjustment
occurred, (c) Credit Card holder's name and Credit Card number, (D) Credit Card
expiration date, (E) the date of the return or adjustment and the date of the
initial transaction, if available, (F) the amount of the credit, and (vii) a
brief description of the Goods returned.
(iv) With respect to each credit adjustment memo
presented to Six Flags and/or transmitted hereunder, RX Technology represents
and warrants that: (A) the credit adjustment memo represents an amount lawfully
due to a Credit Card holder for the return or adjustment of Goods previously
purchased with the Credit Card, (B) a sales draft relating to and including the
amount of the credit memo was previously presented to Six Flags and/or
transmitted hereunder, (c) the credit adjustment memo does not duplicate
information concerning the same transaction in any other credit slip unless Six
Flags requests a resubmission, (D) the signature appearing on the credit
adjustment memo is that of an authorized employee of RX Technology, and (E) RX
Technology has complied fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technology fails to comply with the
Credit Card Procedures or the terms of this Exhibit B for a given Credit Card
transaction and said sales draft is returned to Six Flags, or in the event Goods
are returned by the customer that paid by Credit Card, or in the event Goods are
not received by customer or any defense or problem is made or presented by
customer questioning the validity or authorization of the transaction, RX
Technology agrees that Six Flags may, in its sole discretion: (i) deduct the
amount of said Credit Card transaction from RX Technology's share of the revenue
from the Concession due and owing RX Technology, if any, or (ii) bill RX
Technology in the amount of said Credit Card transaction, and RX Technology
shall pay Six Flags the same within five (5) days of receipt therefor, or (iii)
demand payment from RX Technology in the amount of said Credit Card transaction
and RX Technology shall pay Six Flags immediately upon its receipt of Six Flags'
demand. Failure of RX Technology to pay Six Flags as set forth herein for any
outstanding Credit Card transactions shall constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event Six Flags' agreement with respect to the
Credit Cards terminates or Six Flags, in its sole discretion, determines that it
does not want RX Technology to accept Credit Cards as payment for Goods
hereunder, RX Technology agrees to discontinue acceptance of Credit Cards and
remove the Credit Card symbols from the Facility upon notification by Six Flags.
Ex. B - 2
<PAGE>
2. CHECK.
(i) Acceptance.
RX Technology represents and warrants that it shall
comply with Six Flags' current check authorization procedures (the "Check
Authorization Procedures") (a copy of the TeleCheck Authorization Procedures in
effect as of the date hereof has been received by RX Technology and is
incorporated herein), as Six Flags may amend from time to time upon notice to RX
Technology, prior to acceptance of a check as payment for Goods. Notwithstanding
the foregoing, RX Technology agrees that it shall not contact TeleCheck
directly, as set forth in Section 3 of the Check Authorization Procedures but
shall contact the Merchandise Office or a Merchandise Supervisor to obtain
authorization from TeleCheck.
(b) Returns and Adjustments.
(i) All disputes between RX Technology and any customer
respecting any check transaction hereunder shall be settled between RX
Technology and such customer. RX Technology agrees that in the event of a
dispute, RX Technology shall reasonably address the customer's concern in a good
faith manner.
(ii) RX Technology shall maintain a fair and consistent
policy for exchange and return of merchandise and for the adjustment of amounts
due on check transactions and such policy shall be the same as available to cash
and credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX Technology shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible Refund Slip.
(iv) With respect to each legible Refund Slip presented
to Six Flags hereunder, RX Technology represents and warrants that: (A) the
Refund Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased with a check, (B) a sales draft
relating to and including the amount of the Refund Slip was previously presented
to Six Flags and/or transmitted hereunder, (c) the Refund Slip does not
duplicate information concerning the same transaction in any other Refund Slip
unless Six Flags requests a resubmission, (D) the signature appearing on the
Refund Slip is that of RX Technology, and (B) RX Technology has complied fully
with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technology fails to comply with the
Check Authorization Procedures for a given check and said check is returned to
Six Flags, or in the event Goods are returned by the customer that paid by
check, or in the event Goods are not received by customer or any defense or
problem is made or presented by customer questioning the validity or
authorization of the transaction, RX Technology agrees that Six Flags may, in
its sole discretion: (A) deduct the amount of said check from RX Technology's
share of the revenue from the Concession due and owing RX Technology, if any, or
(B) bill RX Technology in the amount of said check, and RX Technology shall pay
Six Flags the same within five (5) days of receipt therefor, or (c) demand
Ex. B - 3
<PAGE>
payment from RX Technology in the amount of said check and RX Technology shall
pay Six Flags immediately upon its receipt of Six Flags' demand. Failure of RX
Technology to pay Six Flags as set forth herein for any outstanding checks shall
constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event Six Flags' agreement with TeleCheck
terminates and Six Flags does not wish to continue acceptance of checks in the
Park or Six Flags, in its sole discretion, determines that it does not want RX
Technology to accept checks as payment for Goods hereunder, RX Technology agrees
to discontinue acceptance of checks upon notification by Six Flags.
3. CASH.
(a) Acceptance.
RX Technology represents and warrants that it shall
cause all cash received by or on RX Technology's behalf for sale of Goods
hereunder to be rung in the cash register or other Six Flags approved cash
collection equipment and deposited in such cash register or other equipment at
the time of sale. RX Technology agrees that it shall not accept cash for a mail
or telephone order transaction.
(b) Returns and Adjustments.
(i) All disputes between RX Technology and any customer
respecting any cash transaction hereunder shall be settled between RX Technology
and such customer. RX Technology agrees that in the event of a dispute, RX
Technology shall reasonably address the customer's concern in a good faith
manner.
(ii) RX Technology shall maintain a fair and consistent
policy for exchange and return of merchandise and for the adjustment of amounts
due on cash transactions and such policy shall be the same as available to
credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX Technology shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible Refund Slip.
(iv) With respect to each legible Refund Slip presented
to Six Flags hereunder, RX Technology represents and warrants that (A) the
Refund Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased in cash, (B) a sales draft relating to
and including the amount of the Refund Slip was previously presented to Six
Flags and/or transmitted hereunder, (c) the Refund Slip does not duplicate
information concerning the same transaction in any other Refund Slip unless Six
Flags requests a resubmission, (D) the signature appearing on the Refund Slip is
that of RX Technology, and (E) RX Technology has complied fully with the terms
of this Agreement.
Ex. B - 4
<PAGE>
(v) RX Technology agrees that in the event Goods
hereunder are returned on a day that said Goods were not purchased, Six Flags
may, in its sole discretion: (A) deduct the amount of said return from RX
Technology's share of the revenue from the Concession due and owing RX
Technology, if any; (B) bill RX Technology in the amount of said return and RX
Technology shall pay Six Flags the same within five (5) days of receipt therefor
or (c) demand payment from RX Technology in said amount and RX Technology shall
pay Six Flags immediately upon receipt of Six Flags' demand. Failure of RX
Technology to pay Six Flags as set forth herein for any amount outstanding
shall constitute a breach of the Agreement.
Ex. B - 5
<PAGE>
Credit Card Procedures
RX Technology represents and warrants that it shall follow the following
Credit Card Procedures, as may be amended from time to time by Six Flags upon
notice to RX Technology:
1. Each Credit Card sale shall be evidenced by a legible sales draft
(the "Draft") on a form approved by Six Flags, indicating the full amount due
for Goods sold hereunder.
2. Each Draft shall be imprinted by RX Technology, or show evidence
of the electronic equivalent obtained through use of a terminal which reads the
magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) Six Flags'
name and merchant account number, (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including the
account number, name and expiration date of the Credit Card, (iv) the date the
transaction takes place and the price of the Goods, (v) total amount of the
transaction, including all applicable taxes, (vi) description of Goods, and
(vii) signature of the Credit Card holder.
4. RX Technology shall compare the signature on the Draft with the
signature on the Credit Card to ascertain that they are the same, and if the
Credit Card has a photograph of the Credit Card holder, verify that the Credit
Card holder and the person presenting the Credit Card appear to be the same
person. If RX Technology believes there is a discrepancy in the signature or if
the photographic identification is uncertain, RX Technology shall contact the
service provides for instructions.
5. If the signature panel on the Credit Card is blank, RX Technology
shall do the following: (i) review positive identification to determine that the
user is the Credit Card holder; such identification must consist of a current
official government identification document (such as a passport or driver's
license) that bears the Credit Card holder's signature, (ii) indicate such
positive identification (including any serial number and expiration date) on the
Draft and (iii) require the Credit Card holder to sign the signature panel of
the Credit Card prior to completing the transaction.
6. On mail and telephone order sales, if any, RX Technology shall
print on the Draft the information required in Paragraph 3 of these Credit Card
Procedures and, in addition, the following: (i) the customer's name and account
number, (ii) whether the order was placed by mail (M.O.) or telephone (T.O.),
and (iii) whether or not authorization is obtained. With respect to mail and
telephone order sales, RX Technology does not need to secure the Credit Card
holder's signature or Credit Card imprint. RX Technology understands that
telephone and mail order transactions are permitted at RX Technology sole risk;
namely, that any defense or problem raised by a customer questioning the
validity or authorization of the transaction may be made.
7. For each Credit Card sale, RX Technology shall deliver or cause
to be delivered a copy of the completed sales draft to the customer, evidencing
the full amount due for the Goods.
Ex. B - 6
<PAGE>
8. RX Technology shall not complete a sales transaction without
first obtaining an authorization from the designated service provider for the
total amount of the transaction. RX Technology shall print legibly on the Draft
the authorization/approval code, evidencing any authorization so obtained.
Ex. B - 7
<PAGE>
Exhibit C
Employees
RX Technology Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Manager
2 Host/Hostess
Ex. C - 0
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
This is the first addendum to the original agreement dated the 1st day of
April, 1998 by and between SIX FLAGS GREAT AMERICA, a division of Six Flags
Theme Parks Inc., a Delaware Corporation, having offices at 542 North Route 21,
Gurnee, IL ("Six Flags") and RX Technology a corporation, having offices at P.O.
Box 9112, Mandeville, LA 70470 ("Lessee").
The following changes will supercede the original clauses in the agreement
dated the 1st day of April, 1998.
A. ORIGINAL CLAUSE:
WHEREAS, RX Technology desires to operate a retail concession known as RX
Technology (the "Concession") to sell photographs of guests riding Shock Wave,
Eagle, Kiddie Coaster (the "Goods") in the Park as set forth herein;
NEW CLAUSE:
WHEREAS, RX Technology desires to operate a retail concession known
as RX Technology (the "Concession") to sell photographs of guests riding Shock
Wave, Eagle, Kiddie Coaster, Raging Bull, and Batman the Ride (the "Goods") in
the Park as set forth herein;
B. ORIGINAL CLAUSE:
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX Technology a license to operate the Concession in the Park
in such locations of the Park as is set forth on Exhibit A-1 hereto during the
period of time (the "Term") commencing April 1, 1998 (the "Commencement Date")
and terminating at the end of the Park's 1999 operating season. In the event
that RX Technology meets or exceeds a year to date gross per capita two year
average of $.16 of the locations as set forth, an Exhibit A-1 at the end of the
1999 operating season, the existing Agreement will be extended through the 2000
operating season (the "Termination Date").
NEW CLAUSE:
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX Technology a license to operate the Concession in the Park
in such locations of the Park as is set forth on Exhibit A-1 hereto during the
period of time (the "Term") commencing April 1, 1998 (the "Commencement Date")
and terminating at the end of the Park's 1999 operating season. In the event
that RX Technology meets or exceeds a year to date gross per capita of $.23 of
the locations as set forth, an Exhibit A-1 at the end of the 1999 operating
season, the existing Agreement will be extended through the 2000 operating
season (the "Termination Date").
<PAGE>
C. ORIGINAL EXHIBIT A:
The locations are set forth below, subject to relocation in the reasonable
discretion of Six Flags.
SHOCK WAVE
EAGLE
KIDDIE COASTER
NEW EXHIBIT A:
SHOCK WAVE
EAGLE
KIDDIE COASTER
RAGING BULL
BATMAN THE RIDE
D. ORIGINAL EXHIBIT C:
Employees
RX Technology Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Manager
2 Host/Hostess
NEW EXHIBIT C:
Employees
RX Technology Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Manager
4 Host/Hostess
<PAGE>
E. ADDITIONAL CLAUSE SECTION 9:
(ix) Notwithstanding any other provision of this Agreement,
"SIX FLAGS", within its discretion, reserves the right to designate any other
company or person as a Park sponsor ("Designated Park Sponsor") and permit that
sponsor signage, displays, or other identification of its products or name on
the exterior within the interior of the RX Technology site as long as that
interior usage does not interfere with the actual operation of the RX Technology
operation. RX Technology shall not be entitled to any compensation from "SIX
FLAGS" or any "Designated Park Sponsor" for such usage nor shall RX Technology
be relieved of any of the terms and conditions of this Agreement. "SIX FLAGS"
agrees that no such signage of displays shall be affixed to any RX Technology
product.
F. ORIGINAL CLAUSE:
(i) Upon commencement of RX Technology's daily operations, RX
Technology shall pick up a cash till from the Park's cash control facility, and
within one (1) hour after the close of each Park day, RX Technology shall
deliver to Park's cash control facility the following: (a) remaining cash till,
(b) a daily report of the day's operations on Six Flags' "Daily Sales Report"
form, and (c) the day's daily gross receipts, including without limitation
credit card sales drafts, credit memos and all other materials evidencing sales
transactions during such day (collectively, the "Deposits"). Such Deposits are
received subject to audit by Six Flags as set forth herein and Six Flags may
correct and credit or debit RX Technology for any inaccuracies or errors in RX
Technology computation of Deposits. Six Flags may refuse to accept or revoke
acceptance of any Deposits, including any sales drafts or credit adjustments,
which are illegible or which fail to comply with the terms of this Agreement,
including, but not limited to, any federal or state law.
NEW CLAUSE:
(i) Upon commencement of RX Technology's daily operations, RX
Technology shall follow cashier procedures exhibit B-Supplement and pick up a
cash till from the Park's cash control facility, and within one (1) hour after
the close of each Park day, RX Technology shall deliver to Park's cash control
facility the following: (a) remaining cash till, (b) a daily report of the day's
operations on Six Flags' "Daily Sales Report" form, and (c) the day's daily
gross receipts, including without limitation credit card sales drafts, credit
memos and all other materials evidencing sales transactions during such day
(collectively, the "Deposits"). Such Deposits are received subject to audit by
Six Flags as set forth herein and Six Flags may correct and credit or debit RX
Technology for any inaccuracies or errors in RX Technology computation of
Deposits. Six Flags may refuse to accept or revoke acceptance of any Deposits,
including any sales drafts or credit adjustments, which are illegible or which
fail to comply with the terms of this Agreement, including, but not limited to,
any federal or state law.
<PAGE>
G. ORGINIAL CLAUSE IN EXHIBIT B CLAUSE 3 CASH:
(a) Acceptance.
RX Technology represents and warrants that it shall
cause all cash received by or on RX Technology's behalf for sale of Goods
hereunder to be rung in the cash register or other Six Flags approved cash
collection equipment and deposited in such cash register or other equipment at
the time of sale. RX Technology agrees that it shall not accept cash for a mail
or telephone order transaction.
NEW CLAUSE IN EXHIBIT B CLAUSE 3 CASH:
(a) Acceptance.
RX Technology shall comply with Six Flag's cash handling
procedures ("SFGAM Cashier Procedures") a copy of which is attached hereto.
RX Technology represents and warrants that it shall
cause all cash received by or on RX Technology's behalf for sale of Goods
hereunder to be rung in the cash register or other Six Flags approved cash
collection equipment and deposited in such cash register or other equipment at
the time of sale. RX Technology agrees that it shall not accept cash for a mail
or telephone order transaction.
This Addendum (including any and all exhibits and schedules hereto)
constitutes the first addendum between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
clauses and undertakings of the parties pertaining to the subject matter hereof.
This Addendum may not be modified except by written instrument duly executed by
the parties hereto.
<PAGE>
IN WITNESS WHEREOF, this RX Technology Agreement has been duly executed by
the parties hereto on the day and year first hereinabove written.
SIX FLAGS GREAT AMERICA,
(a division of Six Flags Theme Parks Inc.)
By: /s/ James H. Wintrode
---------------------------------------
James H. Wintrode
Vice President and General Manager
RX Technology:
By: /s/ Donald Rex Gay
---------------------------------------
Rex Gay
President/Owner
<PAGE>
Supplement - Exhibit B
Six Flags Great America Cashier Procedures
Beginning of Shift: Till Pick-up
Have the following ready before coming to the window
o Your Employee ID
o The unit name and number of the unit where you will be working
Go to the Merchandise window. Once at the window, find your unit on the sign out
sheet and sign your name on the first available line.
The amount of cash you should receive is posted on the top of the sign out
sheet. After you receive your cash BEFORE leaving cash control, count your cash
to ensure you have received the correct amount. If you find a discrepancy,
report this immediately to the cash window for correction. Once you leave the
cash office, no discrepancies can be corrected.
Complete the top part of the Cash Control Sheet with your name, the Till number
checked out, and today's date.
Currency Pick up at the unit:
When cash control collects money from your register (drawer or drop box) make
sure to receive a pick up slip. Make sure it is completed with your unit and
Till number, the date and time. You will receive the pink copy of the pick up
slip. Make sure it is signed by an authorized (ID should be presented) cash
control representative.
End of Shift: Till Turn-in:
Before traveling to cash control complete the rest of the Cash Control sheet and
get your supervisor to check it is complete and sign the sheet. This must be
returned with your cash bag. The following should be checked:
o Make sure you have a journal tape for all the places worked, mark with
your bag number, unit number, and unit name
o Make sure you have all checks and Travelers checks and your bag number is
written on the lower left on face of each one
o Make sure you have all credits sales slips signed by the guest and your
bag number is written on each one
o Make sure you log your voids and they are approved by your supervisor
o Make sure you have all your pick up slips
o Check that there is no cash left behind in your register (behind the
drawer)
o Make sure all your bills are stacked neatly, no folds or rips. Any torn
currency should be placed on the top of the stack of bills. Your change
should be in a change bag.
o Have your supervisor double check all is complete and sign the sheet.
Proceed to the window for your function and give the bag to the cashier to check
that all items are correct from the Cash Control sheet. Sign the sign-in sheet
that the bag has been returned. Make sure the Teller also signs the sheet and
records the time in before leaving the window.
More often than not, you may be selected to have your bag audited. This is
strictly random process and no cause for concern. Cooperate with the auditor as
they balance your day's sales with receipts of cash, credit, checks, and
coupons. If all your transactions are in order this should only take a few
minutes.
EX B - 6
<PAGE>
Cash Control Sheet
Name: ______________________________________ Date: ________________
Bag Number: ____________________
Check BEFORE bag turn in:
___ Journal Tapes, Register tapes are included
___ Checks and Travelers Checks... all marked with bag. Follow Telecheck
authorization procedures.
___ Credit Slips signed by guest... Follow credit authorization procedures.
___ Bugs Bunny dollars. All marked with bag # and $value.
___ Void logs signed by supervisor. (When applicable.)
___ Pick up Slips. (When applicable.)
___ All Currency stacked (no folds or creases), all loose coin in coin bag.
___ Cash register
___ Register Balancing Form completed both upper & lower portion. (Lessees only)
Cashier Signature __________________________________
Supervisor Signature ___________________________________
EX B - 7
<PAGE>
DATE: ______________ Department - $ $$$.00
TILL SIGN OUT LOG
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Control Employee Cashier - Cash Control -
Number Number Number Out Signature Out Signature Time Cashier - In Signature Cash Control - In Signature Time
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
xxx03
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
Unit Name
- ------------------------------------------------------------------------------------------------------------------------------------
xxx01
- ------------------------------------------------------------------------------------------------------------------------------------
xxx02
- ------------------------------------------------------------------------------------------------------------------------------------
xxx03
- ------------------------------------------------------------------------------------------------------------------------------------
xxx04
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
"xxx" = Unit Number
"01", "02", "03" are based on number of tills requested per unit.
"$$$" based on till fund requested.
(Coin included vs Dollars only.)
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CASH PICKUP RECEIPT DO NOT USE RED INK
DATE______________ BAG # |_|_|_|_|_|
UNIT______________________________ TIME____________________
BAR
CASHIER______________________________ CODE I.D. # _____________
100.00 x ____ = ______________.__
50.00 x ____ = ______________.__
20.00 x ____ = ______________.__
10.00 x ____ = ______________.__
5.00 x ____ = ______________.__
2.00 x ____ = ______________.__
1.00 x ____ = ______________.__
Travelers checks _____________.__
TOTAL PICKUP _____________.__
Cashier:___________________________
Supervisor:________________________
WHITE COPY - Wrap with currency YELLOW COPY - in cash bag PINK COPY - Unit copy
PG95 71556
- --------------------------------------------------------------------------------
EX B - 9
<PAGE>
REGISTER BALANCE FORM (RBF)
DO NOT USE RED INK - PRESS FIRMLY WHEN WRITING DATE ______________
INSTRUCTIONS
PRINT TOP PORTION. FILL IN DATE, CASHIER NAME, BAG#, SS#, AND IBM#
FILL IN LINES C THROUGH J WHILE WAITING IN LINE.
A. RECORD THE TOTAL AMOUNT FROM THE LOOSE COIN RECEIPT ON THIS LINE.
B. RECORD THE TOTAL AMOUNT FROM THE FINAL CURRENCY RECEIPT ON THIS LINE.
C. ADD THE DOLLAR AMOUNTS OF ALL PERSONAL CHECKS AND RECORD ON THIS LINE.
D. ADD THE DOLLAR AMOUNTS OF ALL TRAVELER CHECKS AND RECORD ON THIS LINE.
E. ON THE LEFT SIDE OF THE FORM, LIST THE QUANTITY OF EACH ROLLED COIN TYPE
AFTER THE x. MULTIPLY THE QUANTITY TIMES THE VALUE OF EACH ROLL AND WRITE THE
RESULT IN THE TOTAL COLUMN. ADD THE TOTAL COLUMN DOWN. FOLLOW THE ARROWS TO THE
RIGHT, AND LIST THE TOTAL ROLLED COIN ON LINE E.
F. RECORD THE TOTAL CREDIT CARD AMOUNT FROM YOUR CLERK ID REPORT.
G. ADD THE TOTALS OF ALL ACCT REC AND RECORD ON THIS LINE. TO IDENTIFY: ACCT
REC WILL HAVE "ACCT REC" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
H. ADD ALL BUGS BUNNY MONEY TOGETHER AND RECORD ON THIS LINE.
I. ON THE LEFT SIDE OF THE FORM, RECORD EACH PICKUP FROM YOUR YELLOW RECEIPTS.
FOLLOW THE ARROWS TO THE RIGHT AND LIST THE TOTAL PICKUPS AMOUNT ON LINE I.
J. ADD THE TOTALS OF ALL COUPONS AND RECORD ON THIS LINE. TO IDENTIFY: COUPONS
WILL HAVE "COUPON" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
K. ADD THE TOTALS OF LINES A THROUGH J AND RECORD ON THIS LINE.
L. WRITE THE AMOUNT OF THE TILL/BANK THAT YOU CHECKED OUT AT THE BEGINNING OF
YOUR SHIFT.
N. SUBTRACT LINE L FROM LINE K.
SIGN YOUR NAME ON THE PREPARED BY LINE.
CASHIER NAME_________________________________________ BAG # |_|_|_|_|_|
SOC SEC # |_|_|_|_|_|_|_|_|_| IBM # |_|_|_|_|
- -----------
ROLLED COIN
- -----------
VALUE QTY TOTAL
----- --- -----
PENNIES $.50 x ____ = $________.__ LOOSE COIN RECEIPT _________.__ A
NICKELS $ 2. x ____ = $________.__ FINAL CURRENCY _____________.__ B
DIMES $ 5. x ____ = $________.__ PERSONAL CHECKS ____________.__ C
QUARTERS $ 10. x ____ = $________.__ TRAVELERS CHECKS ___________.__ D
TOTAL ROLLED COIN -> -> -> -> ROLLED COIN ________________.__ E
PICKUP # 1 __________________.__ CREDIT CARDS _______________.__ F
PICKUP # 2 __________________.__ ACCTS RECEIVABLE ___________.__ G
PICKUP # 3 __________________.__ BUGS BUNNY MONEY ___________.__ H
TOTAL PICKUPS -> -> -> -> TOTAL PICKUPS ______________.__ I
COUPONS ____________________.__ J
TOTAL DEPOSIT_______________.__ K
(ADD A THROUGH J)
LESS: TILL/BANK ___________.__ L
NET DEPOSIT ________________.__ M
(K-L)
PREPARED BY __________________________________________________
- --------------------------------------------------------------------------------
CASHIERS --- DO NOT FILL OUT BELOW THIS LINE
- --------------------------------------------------------------------------------
GUEST LEFT CHANGE ______________________.__ O TOTAL ADJUSTED SALES ______.__ N
ADJUSTED NET DEPOSIT (M-O) _____________.__ P
CASH VARIANCE (P-N) ____________________.__ OVER/SHORT _________________.__
(M-N)
TRANSFER 1 TRANSFER 2 TRANSFER 3
---------- ---------- ----------
SALES SALES SALES
TO UNIT _______________ TO UNIT _______________ TO UNIT _______________
GROSS GROSS GROSS
SALES ______________.__ SALES ______________.__ SALES ______________.__
LESS: LESS: LESS:
REFUNDS ____________.__ REFUNDS ____________.__ REFUNDS ____________.__
LESS: LESS: LESS:
VOIDS ______________.__ VOIDS ______________.__ VOIDS ______________.__
ADJUSTED ADJUSTED ADJUSTED
SALES ______________.__ SALES ______________.__ SALES ______________.__
TOTAL (TRANSFER 1+2+3)
GROSS
SALES ______________.__
LESS:
REFUNDS ____________.__
LESS:
VOIDS ______________.__
ADJUSTED
SALES ______________.__
MANUAL
SALES TAX __________.__
TOTAL #
VOIDS _________________
CONTROL CLERK________________ CC AGENT ___________________
WHITE COPY - CSH CNTRL YELLOW - CSH CNTRL PINK - INT CNTRL
<PAGE>
------------------
Your Check
Is Welcome
TeleCheck(R)[LOGO]
------------------
PROCEDURE MANUAL
<PAGE>
INDEX
WHAT IS TELECHECK.........................................................Page 1
EXAMPLE OF CHECK..........................................................Page 2
WHAT DO I DO?.............................................................Page 3
COMPANY CHECKS............................................................Page 4
SHOULD I TAKE THE CHECK?..................................................Page 5
HOW DO I REQUEST WARRANTY PAYMENT?........................................Page 6
HOW DO I READ MY WARRANTY LEDGER?.........................................Page 7
HOW DO I READ MY TELECHECK INVOICE?.......................................Page 8
INVOICE EXPLANATION.......................................................Page 8
<PAGE>
TeleCheck(R)[LOGO] TeleCheck Chicago
- ------ 999 E. TOUHY AVENUE
I45936 SUITE #225
- ------ DES PLAINES, IL 60018
YOUR LOCATION CODE (708) 390-5400
What is TeleCheck(R)?
TELECHECK Services, Inc. is an international franchise organization with
operations throughout the United States, Canada, Hong Kong, Puerto Rico,
Australia, and New Zealand. It is the nation's largest check acceptance service.
TELECHECK will honor any check from any bank in the United States or Canada. In
addition, we warrant our information. If an approved check comes back to you
dishonored by the bank, we will reimburse you the full amount of that check up
to your pre-established limit,
What are the benefits?
o Increases the traffic flow into your store.
o Increases the dollar value of transactions.
o Turns strangers into regular customers.
o Improves customer relations.
o Saves time.
With TELECHECK you can serve your customers in a way that they appreciate. You
give them an added service and convenience. This is accomplished by providing
instant information which will support your decision to accept a check.
Response time for inquiries is a matter of seconds, whether by automated
response, by direct terminal access, or operator assisted.
The primary purpose of the TELECHECK system is to build your business.
TELECHECK can be a supplement for you in your non-cash payment methods.
1
<PAGE>
YOUR STORE | ID TYPE AND Draw a 'cross' in the upper right-
CODE | NUMBER hand corner of the check. Fill in the
- ------------------------------ proper information.
APPROVAL | PHONE
CODE | #
[GRAPHIC OF SAMPLE CHECK]
2
<PAGE>
Before calling TeleCheck ...
1. Make sure check is drawn on a U.S. or Canadian bank.
2. Check must be first party, payable to your business.
3. Date of check must be the current date.
4. Written and numeric amounts must agree.
5. Check writer's name and bank account number must be imprinted by the check
manufacturer.
6. The signature in the signature block must not be substantially different
from the name imprinted on the check.
7. Complete address is written on check (if not bank imprinted). Complete
address includes: full street address, city, state and zip code. P.O. Box
numbers or General Delivery are not valid addresses. Rural Routes are
acceptable.
8. Check writer's phone number is written on check, including area code.
9. An acceptable ID must be obtained from the checkwriter and the ID type and
number written legibly on the check.
10. One check per business transaction, sale or service performed. Checks for
cash will not be warranted.
Acceptable ID types
(Only One Required)
A. Driver's License:
Permanent, Unexpired License from any state or Canada.
B. Valid and Unexpired Major Credit Card:
MasterCard Carte Blanche
Visa Diners Club
American Express Discover
3
<PAGE>
Company Checks
The same procedures listed on the previous page apply to a Company Check as well
as a Personal Check. One significant difference is that the signature on a
Company Check will not match the bank imprinted name.
On Company Checks, rather than using an ID, you will be obtaining an
authorization using the "zip-plus" method. (In place of an ID, use the 5-digit
zip code plus any numerics in the street address up to a maximum of thirteen
numbers). Please refer to the call-in procedures for more detailed instructions.
If referred to a live operator when calling in a Company Check, you must alert
the operator that it is in fact a Company Check.
Calling TeleCheck
TELECHECK operates 7 days a week - 24 hours a day.
The check writer must be present until your call to TELECHECK is complete. With
the check and I.D. in hand, telephone TELECHECK by referring to the sticker by
your phone.
Give the following information.
Location Code
ID Type and Number [GRAPHIC OMITTED]
Exact Amount of Check
Under certain conditions additional information may be required.
4
<PAGE>
Should I take the check?
Operator will reply with one of the following codes:
FOUR DIGIT Accept the check. This four digit number means the
APPROVAL: TELECHECK warranty will apply, provided all procedures
have been followed. The approval number must be written
on the check.
CODE 2: Information only. The TELECHECK warranty does not apply.
TELECHECK has no negative information on file, but the
inquiry did not meet our requirements. Your company policy
prevails. The most common reason for a Code 2 is because
the check writer does not have an acceptable I.D. type.
CODE 4: TELECHECK has negative information on the check writer.
The warranty does not apply. Extend a customer referral
card and ask the customer to pay cash or use a credit
card. Do not allow the check writer to talk to the
operator. The business office will answer all inquiries.
CUSTOMER Dear Customer:
REFERRAL
CARD We are sorry that we cannot accept your check at this time
because TeleCheck(R) will not approve it.
We encourage you to contact TeleCheck so they can explain
the reasons for their actions and work with you to resolve
the situation.
Please contact:
Consumer Service Manager
(708)390-5450
8:00 a.m.-5:00 p.m.
Monday-Friday
TeleCheck Chicago
999 E. TOUHY AVENUE
SUITE #225
DES PLAINES, IL 60018
(c) TeleCheck Services, Inc. 1987 TMI #1079
5
<PAGE>
Qualified checks for which a four digit approval response has been given by
TeleCheck are warranted. If the check has been returned by the bank to you
unpaid, follow these instructions to receive payment.
1. Review the check to determine if it complies with all nine TeleCheck
procedures outlined on your Check Purchase Request Form. (complete both
sides of a Check Purchase Request Form/Assignment of Uncollectable check
for EACH check submitted for payment.)
2. Mail both the check and Assignment of Uncollectable Check Form to
TeleCheck. Please keep the receipt for your records. (It is also wise to
keep a photostatic copy of the front and back of the check for your
records.)
[GRAPHIC OMITTED]
What is a valid warranty claim?
TeleCheck's rules are simple and easy to follow. These rules are firm and will
not be altered. A check must pass the nine rules before it will be considered a
valid warranty claim.
1. U.S. or Canadian first party check (company or personal) or credit union
share draft. Name imprinted by the bank is not altered. If P.O. Box is
imprinted or address is not imprinted by the bank, street address must be
taken from identification and written on the check.
2. Telephone number either imprinted or written. (Home or Business.)
3. Permanent valid driver's license or other approved I.D. must have been
used for identification and I.D. type and number must be written on the
check. If the address on the check does not match the address on the I.D.,
both addresses must be placed on the check. If driver's license, give
state of issue.
4. The signature in the signature block must not be substantially different
from the name imprinted on the check.
5. Date of inquiry must be the same as date on check.
6. Amounts shown in words and figures must be in agreement.
7. Subscriber must be current in payment to TeleCheck before warranty claim
checks will be issued.
8. Checks warranted by TeleCheck MUST BE IN TELECHECK'S OFFICE WITHIN 30 DAYS
FROM DATE ON CHECK.
9. Subscriber shall have received an Approval Code response and met the above
requirements.
What are the most common reasons for a warranty claim not being accepted?
1) NO PHONE NUMBER ON CHECK.
2) P.O. BOX ONLY (ADDRESS NOT WRITTEN IN)
3) OVER 30 DAYS OLD
4) CHECK NOT FIRST PARTY
5) NAME SIGNED IS NOT THE SAME AS NAME IMPRINTED.
6) I.D. ACCEPTED IS NOT THAT OF THE CHECK SIGNER.
6
<PAGE>
[Illegible]
warranty claim?
EXCHANGE BILLING [GRAPHIC OMITTED]
Warranty claims received by TeleCheck between the first and end of the month
will be acknowledged on the following month's invoice.
Reimbursements will be issued approximately 10 days from date of receipt of
invoice payment. Warranty checks can be released only when your TeleCheck
charges are current and paid in full.
[GRAPHIC OMITTED]
How do I read my warranty ledger?
Each month TeleCheck will list all the warranty claims received during the
previous month on your Warranty Ledger.
[GRAPHIC OMITTED]
OVER WARRANTY LIMIT
If the check you submitted was over the warranty limit, the face amount of the
check will be listed under the AMOUNT column and the amount that TeleCheck
will reimburse you will be listed under the WARRANTY column.
RETURN TO STORE
Checks which cannot be warranted will be returned. The check will be listed on
the Warranty Ledger. However, the WARRANTY AMOUNT will be zero and the codes
will explain why it was returned.
CODES
Next to each check there is a series of codes. Please refer to the "Explanation
of Codes" at the bottom of the Warranty Ledger to describe the status of
each claim submitted.
WARRANTY TOTAL
You can determine the amount of warranty you will receive by looking at the
"WARRANTY TOTAL" at the bottom of the Warranty Ledger. This total also appears
under the loss prevention heading on your invoice.
PAID AT THE STORE
Although we discourage this practice, the check writer will occasionally pay you
directly for the bad check after you have submitted your warranty claim to
TeleCheck. When this occurs, you must notify TeleCheck that payment has been
made in order to release the customer from our negative files.
7
<PAGE>
Warranty Ledger
[GRAPHIC OMITTED]
How do I read my Telecheck invoice
- --------------------------------------------------------------------------------
You will receive a monthly invoice from Telecheck which will reflect the billing
activity for the full month. Payment is due upon receipt of invoice.
SECTION 1
MAILING ADDRESS AND CALL STATISTICS
[GRAPHIC OMITTED]
8
<PAGE>
SECTION 2
LOCATION STATISTICS AND OVERALL BILLING
[GRAPHIC OMITTED]
SECTION 3
REMITTANCE COPY
[GRAPHIC OMITTED]
9
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
This second addendum to the original agreement dated the 1st day of April,
1998 by and between SIX FLAGS GREAT AMERICA, a division of Six Flags Theme
Parks, Inc., a Delaware Corporation, having offices at 542 North Route 21,
Gurnee, IL ("Six Flags") and RX TECHNOLOGY, a corporation having offices at P.O.
Box 9112, Mandeville, LA 70470 ("Lessee").
The following changes will supercede the original clauses in the agreement
dated the 1st day of April, 1998.
A. ORIGINAL CLAUSE SECTION 2.A.:
RX Technology agrees to operate the Concession during the hours and days
including Sundays and holidays, that the Park is open for business in accordance
with schedules prepared by Six Flags which Six Flags may modify in Six Flags'
sole discretion at any time on a twenty-four (24) hours notice to RX Technology
and such additional hours as are required by Six Flags (the "Operating Hours").
RX Technology acknowledges that Six Flags will suffer great harm if RX
Technology breaches the agreement set forth in this subsection, the amount of
which would be difficult to determine. Therefore, RX Technology agrees to pay
Six Flags liquidated damages of $50.00 for each Park operating day that RX
Technology opens the Concession thirty (30) minutes after the opening time of
the Park's Operating Hours and/or closes the Concession thirty (30) minutes
before the time of the Park's Operating Hours upon notice thereof by Six Flags
and such liquidated damages shall be increased an additional $50.00 for each
successive violation of Park Operating Hours upon notice thereof by Six Flags,
up to a maximum liquidated damages amount of $500.00.
NEW CLAUSE:
RX Technology agrees to operate the Concession during the hours and days,
including Sundays and holidays that the Park is open for business in accordance
with schedules prepared by Six Flags which Six Flags may modify in Six Flags'
sole discretion at any time on a twenty-four (24) hours notice to RX Technology
and such additional hours as are required by Six Flags (the "Operating Hours").
RX Technology acknowledges that Six Flags will suffer great harm if RX
Technology breaches the agreement set forth in this subsection, the amount of
which would be difficult to determine. Therefore, RX Technology agrees to pay
Six Flags liquidated dames of $500.00 for each Park operating day that RX
Technology opens the Concession thirty (30) minutes after the agreed opening
time of the Concession and/or closes the Concession thirty (30) minutes before
the agreed upon closing time. Upon notice thereof by Six Flags and such
liquidated damages shall be increased an additional $750.00 for each successive
violation of Park Operating Hours thereof by Six Flags.
B. ORIGINAL CLAUSE SECTION 2.B.:
RX Technology agrees to submit samples of all products detailed plans,
specifications, drawings and other information with respect to Goods for sale to
be made available to customers in the Park in connection with the Concession,
for Six Flags' approval in advance of sale of the same. RX Technology agrees to
makes such changes to the Goods, at its sole cost and expense, as Six Flags
shall reasonably determine. RX Technology also agrees to coordinate with the
Park in coding each of RX Technology's Goods and inputting the same in the cash
register for tracking purposes. To the extent requested by Six Flags, RX
Technology shall comply with Six Flags' point of sale and other information
system requirements.
1
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
NEW CLAUSE:
RX Technology agrees to submit samples of all products, detailed plans,
specifications, drawings and other information with respect to Goods for sales
to customers in the Park in connection with the Concession, for Six Flags'
approval in advance of sale of the same. RX Technology agrees to make such
changes to the Goods, at it sole cost and expense, as Six Flags shall reasonably
determine.
C. ADDITIONAL CLAUSE SECTION 2.C.IV:
(iv) RX Technology agrees that any merchandise/product that are held for
the Guest by RX Technology must be taken to Guest Relations at Park closing each
operating day for the Guest to pick up. Failure to do so will result in a
$100.00 fine for each occurrence that Six Flags must retrieve product held by RX
Technology.
D .ORIGINAL CLAUSE 2.E. (vi):
RX Technology agrees to use best efforts to cause its employees to attend
Park Training/orientation programs as may be required by Six Flags and comply
with Park rules and regulations, including without limitation submission to drug
testing, as may be required. RX Technology further agrees to cause its employees
to wear such uniforms as shall be approved in advance by Six Flags, if Six Flags
provides said uniforms. RX Technology agrees that all such uniforms shall be
returned in good condition, normal wear and tear expected, to Six Flags at the
end of Term. RX Technology agrees to pay Six Flags for any damage to, or loss
of, such uniforms. Six Flags reserves the right to set off the amounts thereof
from RX Technology's share of Net Revenues.
NEW CLAUSE:
RX Technology agrees to use its best efforts to cause its employees to
attend Park training/orientation programs as may be required by Six Flags and
comply with Park rules and regulations, including without limitation submission
to drug testing, as may be required. Pending availability of desired Park
Orientation date and time, no RX Technology employees will be scheduled for Park
Orientation without five days written notice from RX Technology.
E. ADDITIONAL CLAUSE SECTION 2.E.(xii):
(xii) RX Technology has the option to provide costumes for RX Technology's
employees. Six Flags will approve the costumes provided by RX Technology. RX
Technology is to submit costume to Six Flags for approval no later then March
17, 2000. RX Technology also has the option to purchase park approved costumes
from Six Flags for RX Technology's employees. Park Shoes worn by RX Technology's
employees are to be solid black athletic shoes with no other colors within the
shoe body. All costume charges will be deducted from RX Technology's weekly Net
revenue. It will be the responsibility of RX Technology to collect costume
charges from RX Technology's employees.
2
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
F. ORIGINAL CLAUSE SECTION 5.B.:
"Net Revenue" means gross revenue of the Concession during the applicable
period less the sales tax paid or payable in respect thereto or otherwise paid.
RX Technology agrees that Six Flags shall have the right to deduct the following
from RX Technology's share of the Net Revenue: (ii) cash shortages, (iii) credit
card, check processing and other transaction costs and charges, including charge
backs and return check amounts and fees related thereto, (iv) the cost of goods
taken from Six Flags' warehouse, to the extent permitted by Six Flags, or
otherwise and not paid for (v) the cost of leased Park equipment, if any, each
during the applicable period (vi) the cost associated with the damage or loss of
uniforms as set forth in more detail in Section 2G (vii) the cost of any bill or
charge which is the basis or which may be the basis for a lien against the
Facility as set forth in more detail in Section 9A (vii) hereof.
NEW CLAUSE:
"Net Revenue" means gross revenue of the Concession during the applicable
period less the sales tax paid or payable in respect thereto or otherwise paid.
RX Technology agrees that Six Flags shall have the right to deduct the following
from RX Technology's share of the Net Revenue: (i) cash shortages, (ii) credit
card, check processing and other transaction costs and charges, including charge
backs and return check amounts and fees related thereto, (iii) the cost of goods
taken from Six Flags' warehouse, to the extent permitted by Six Flags, or
otherwise and not paid for (iv) the cost of leased Park equipment, if any, each
during the applicable period (v) the cost of any bill or charge which is the
basis or which may be the basis for a lien against the Facility as set forth in
more detail in Section 9, (vi) cost associated with uniforms as set forth in
more detail in Section 2.
This Addendum (including any and all exhibits and schedules hereto)
constitutes the second addendum between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
clauses and undertakings of the parties pertaining to the subject matter hereof.
This Addendum may not be modified except by written instrument duly executed by
parties hereto.
3
<PAGE>
ADDENDUM
RX TECHNOLOGY AGREEMENT
IN WITNESS WHEREOF, this RX TECHNOLOGY Agreement has been duly executed by
the parties hereto on the day and year first herinabove written.
SIX FLAGS GREAT AMERICA,
(a division of Six Flags Theme Parks, Inc.)
By: /s/ James H. Wintrode
---------------------------------------
James H. Wintrode
Vice President and General Manager
RX Technology:
By: /s/ Donald Rex Gay
---------------------------------------
Rex Gay
President/Owner
4
<PAGE>
Supplement - Exhibit B
Six Flags Great America Cashier Procedures
Till Check-out
The following will be needed at the time of till check-out:
o Employee I.D.
o Unit name and number
Tills will be checked out at the Merchandise window. Cashiers will sign for a
cash bag on the first available line under their unit number on the Till
Check-out Log.
The amount of cash received should match the amount posted on the top of the
Till Check-out Log. This amount must be verified before leaving Cash Control.
Any discrepancies should be reported at this time. Discrepancies not reported
before the cashier leaves Cash Control will not be corrected.
Cashiers must complete the top part of the Cash Control Sheet including name,
the till number checked out and the date.
Currency Pick Up
Periodically, and authorized Cash Control representative (verified by the
presentation of an ID) may pick up excess currency from a unit. When this is
done, the cashier will receive the pink copy of the Pick Up Slip as
verification. It is the cashier's responsibility to verify that this slip is
complete with the unit number, till number, date, time and amount picked up.
This slip should be signed by both the cashier and the Cash Control
representative.
Till Check-in
The following items must be turned in with all tills:
o An "X" or "Z" read
o Pink and Yellow copies of the Register Balance Form. The RBF should be
completed prior to leaving the unit.
o Journal Tapes marked with till number, and the name and number of all
units worked in
o Checks and travelers checks marked with till number and endorsement stamp
o Bugs Bunny Money, Scrip Money, or other vouchers marked with till number
o Credit Slips signed by the guest and marked with till number
o Draft Capture
o Pick up slips
o Currency, faced and stacked neatly
o Coin, bagged
o Void Log approved by Supervisor
o Cash Control Sheet, approved by Supervisor
Tills are to be locked before leaving the unit to return them to Cash Control.
Cashiers must have their till audited by Cash Control at the end of their shift.
A completed copy of the RBF will be returned to the Lessee unit on a daily
basis.
<PAGE>
REGISTER BALANCE FORM (RBF)
DO NOT USE RED INK - PRESS FIRMLY WHEN WRITING DATE ______________
INSTRUCTIONS
PRINT TOP PORTION. FILL IN DATE, CASHIER NAME, BAG#, SS#, AND IBM#
FILL IN LINES C THROUGH J WHILE WAITING IN LINE.
A. RECORD THE TOTAL AMOUNT FROM THE LOOSE COIN RECEIPT ON THIS LINE.
B. RECORD THE TOTAL AMOUNT FROM THE FINAL CURRENCY RECEIPT ON THIS LINE.
C. ADD THE DOLLAR AMOUNTS OF ALL PERSONAL CHECKS AND RECORD ON THIS LINE.
D. ADD THE DOLLAR AMOUNTS OF ALL TRAVELER CHECKS AND RECORD ON THIS LINE.
E. ON THE LEFT SIDE OF THE FORM, LIST THE QUANTITY OF EACH ROLLED COIN TYPE
AFTER THE x. MULTIPLY THE QUANTITY TIMES THE VALUE OF EACH ROLL AND WRITE THE
RESULT IN THE TOTAL COLUMN. ADD THE TOTAL COLUMN DOWN. FOLLOW THE ARROWS TO THE
RIGHT, AND LIST THE TOTAL ROLLED COIN ON LINE E.
F. RECORD THE TOTAL CREDIT CARD AMOUNT FROM YOUR CLERK ID REPORT.
G. ADD THE TOTALS OF ALL ACCT REC AND RECORD ON THIS LINE. TO IDENTIFY: ACCT
REC WILL HAVE "ACCT REC" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
H. ADD ALL BUGS BUNNY MONEY TOGETHER AND RECORD ON THIS LINE.
I. ON THE LEFT SIDE OF THE FORM, RECORD EACH PICKUP FROM YOUR YELLOW RECEIPTS.
FOLLOW THE ARROWS TO THE RIGHT AND LIST THE TOTAL PICKUPS AMOUNT ON LINE I.
J. ADD THE TOTALS OF ALL COUPONS AND RECORD ON THIS LINE. TO IDENTIFY: COUPONS
WILL HAVE "COUPON" FOLLOWED BY A CODE IN THE LOWER RIGHT CORNER.
K. ADD THE TOTALS OF LINES A THROUGH J AND RECORD ON THIS LINE.
L. WRITE THE AMOUNT OF THE TILL/BANK THAT YOU CHECKED OUT AT THE BEGINNING OF
YOUR SHIFT.
N. SUBTRACT LINE L FROM LINE K.
SIGN YOUR NAME ON THE PREPARED BY LINE.
CASHIER NAME_________________________________________ BAG # |_|_|_|_|_|
SOC SEC # |_|_|_|_|_|_|_|_|_| IBM # |_|_|_|_|
- -----------
ROLLED COIN
- -----------
VALUE QTY TOTAL
----- --- -----
PENNIES $.50 x ____ = $________.__ LOOSE COIN RECEIPT _________.__ A
NICKELS $ 2. x ____ = $________.__ FINAL CURRENCY _____________.__ B
DIMES $ 5. x ____ = $________.__ PERSONAL CHECKS ____________.__ C
QUARTERS $ 10. x ____ = $________.__ TRAVELERS CHECKS ___________.__ D
TOTAL ROLLED COIN -> -> -> -> ROLLED COIN ________________.__ E
PICKUP # 1 __________________.__ CREDIT CARDS _______________.__ F
PICKUP # 2 __________________.__ ACCTS RECEIVABLE ___________.__ G
PICKUP # 3 __________________.__ BUGS BUNNY MONEY ___________.__ H
TOTAL PICKUPS -> -> -> -> TOTAL PICKUPS ______________.__ I
COUPONS ____________________.__ J
TOTAL DEPOSIT_______________.__ K
(ADD A THROUGH J)
LESS: TILL/BANK ___________.__ L
NET DEPOSIT ________________.__ M
(K-L)
PREPARED BY __________________________________________________
- --------------------------------------------------------------------------------
CASHIERS --- DO NOT FILL OUT BELOW THIS LINE
- --------------------------------------------------------------------------------
GUEST LEFT CHANGE ______________________.__ O TOTAL ADJUSTED SALES ______.__ N
ADJUSTED NET DEPOSIT (M-O) _____________.__ P
CASH VARIANCE (P-N) ____________________.__ OVER/SHORT _________________.__
(M-N)
TRANSFER 1 TRANSFER 2 TRANSFER 3
---------- ---------- ----------
SALES SALES SALES
TO UNIT _______________ TO UNIT _______________ TO UNIT _______________
GROSS GROSS GROSS
SALES ______________.__ SALES ______________.__ SALES ______________.__
LESS: LESS: LESS:
REFUNDS ____________.__ REFUNDS ____________.__ REFUNDS ____________.__
LESS: LESS: LESS:
VOIDS ______________.__ VOIDS ______________.__ VOIDS ______________.__
ADJUSTED ADJUSTED ADJUSTED
SALES ______________.__ SALES ______________.__ SALES ______________.__
TOTAL (TRANSFER 1+2+3)
----------------------
GROSS
SALES ______________.__
LESS:
REFUNDS ____________.__
LESS:
VOIDS ______________.__
ADJUSTED
SALES ______________.__
MANUAL
SALES TAX __________.__
TOTAL #
VOIDS _________________
CONTROL CLERK________________ CC AGENT ___________________
WHITE COPY - CSH CNTRL YELLOW - CSH CNTRL PINK - INT CNTRL
<PAGE>
Exh. 10.13
Six Flags Magic Mountain
Batman
<PAGE>
RX TECHNOLOGY, INC.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made as of this 1st day of January, 2000, by and
between SIX FLAGS MAGIC MOUNTAIN, a division of Six Flags Theme Parks Inc., a
Delaware corporation, having offices at 26101 Magic Mountain Parkway, Valencia,
CA. 91355 ("Six Flags"), and RX TECHNOLOGY, INC., having offices at 2264 7th
Street, Mandeville, LA. 70471 ("RX")
WITNESSETH
WHEREAS, Six Flags owns, operates or manages the theme amusement facility
which is open to the general public and known as Six Flags Magic Mountain in
Valencia, CA. (the "Park").
WHEREAS, RX desires to construct and operate a retail ride photo
concession known as RX Technology, Inc. (the "Ride Photo Shop") to sell
photographs of persons riding the Riddler Ride, the Batman Ride, the Goliath
ride, and the Children's coaster ride in the Park as set forth herein;
WHEREAS, Six Flags desires to grant RX a license to operate the Ride Photo
Shop in the Park, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, Six Flags and RX agree as follows:
1. TERM
Subject to the provisions of this Agreement concerning termination,
Six Flags grants RX a license to construct a facility, subject to the provisions
of this Agreement, from which to operate, and to operate the Ride Photo Shop in
the Park in such locations of the Park as is set forth on Exhibit A hereto
during the period of time commencing January 1st, 2000 (the "Commencement Date")
and terminating at the end of the Park's 2000 operating season on December 31st,
2000 (the "Termination Date").
2. OPERATION
A. Hours of Operation.
RX agrees to operate the Ride Photo Shop during the hours and
days, including Sundays and holidays, that the Park is open for business in
accordance with schedules prepared by Six Flags which Six Flags may modify at
Six
<PAGE>
Flags' sole discretion at any time on twenty-four (24) hours notice to RX and
such additional hours as are required by Six Flags. RX acknowledges that Six
Flags will suffer great harm if RX breaches the agreement set forth in this
subsection, the amount of which would be difficult to determine. Therefore, RX
agrees to pay Six Flags liquidated damages of $50.00 for each Park operating day
that RX opens the Ride Photo Shop thirty (30) minutes after the opening time of
the Park's RX Ride Location Operating Hours and/or closes the Ride Photo Shop
thirty (30) minutes before the closing time of the Park's RX Ride Location
Operating Hours, upon notice thereof by Six Flags and such liquidated damages
amount shall be increased an additional $50.00 for each successive violation of
Park RX Ride Location Operating Hours, upon notice thereof by Six Flags, up to a
maximum liquidated damages amount of $500.00.
B. Approval of Goods/Services.
RX agrees to submit samples of all merchandise for sale to
customers in the Park in connection with the Ride Photo Shop, for Six Flags'
approval in advance of sale of the same. RX agrees to make such changes to the
merchandise, at its sole cost and expense, as Six Flags shall reasonably
determine. RX also agrees to coordinate with the Park in coding each of RX's
Goods/Services and inputting the same in the cash register for tracking
purposes. To the extent requested by Six Flags, RX shall comply with Six Flags'
point of sale and other information systems requirements.
C. Price of Goods/Services.
(i) RX agrees to submit to Six Flags for its review and
approval, a retail price list of all RX's Merchandise for sale to customers of
the Park (the "Approved Price List") at least two (2) weeks prior to
Commencement Date or any proposed change in any previously approved price list.
RX agrees to make changes to the Approved Price List as Six Flags shall
reasonably request. RX shall be responsible for all costs and expenses
associated with production and printing of the Price List and any changes
thereto, and such costs shall not be deducted from Net Revenue (as hereinafter
defined).
(ii) RX agrees to make changes to the Approved Price List (the
"Revised Price List") at any time during the Term if Six Flags determines, in
its sole discretion that an adjustment is appropriate. RX shall be responsible
for all costs and expenses associated with production and printing of the
Revised Price List, and such costs shall not be deducted from Net Revenue (as
hereinafter defined).
(iii) RX agrees that it shall not make its Goods/Services
available to any party free of charge or at a discounted price unless RX is
engaging in sampling activities approved by Six Flags, etc. Notwithstanding the
foregoing, RX agrees to offer such discounts on its Goods/Services as Six Flags
shall require and as Six Flags shall offer in locations owned by Six Flags. RX
shall, at all times, charge
RX Agreement Page 2 of 19
<PAGE>
customers, including without limitation, family members, employees and business
associates, the price set forth on the Approved Price List for its
Goods/Services except as otherwise expressly set forth herein.
D. Methods of Sale; Payment and Return Policies.
(i) The Goods/Services shall be available for sale to
customers of the Park at point of purchase.
(ii) The following forms of payment for RX's Goods/Services
will be accepted: MasterCard, Visa, American Express and Discover credit cards
(collectively, the "Credit Cards"), and cash (each, a "Form of Payment"). Six
Flags may, in its sole discretion, discontinue and, if applicable, require RX to
discontinue any Form of Payment for Goods/Services sold hereunder. Conversely,
Six Flags may, in its sole discretion, require RX to accept such additional
forms of payment as may be accepted by Six Flags in the future; and in so doing,
RX agrees to submit to such reasonable rules/restrictions with respect thereto.
Payment for the Goods/Services shall be in accordance with the provisions of
Exhibit B - Payment/Return Agreement, which is attached hereto and incorporated
herein.
E. Reports and Records.
(i) Upon commencement of RX's daily operations, RX shall pick
up a cash till from the Park's cash control facility, and within one (1) hour
after the close of each Park day, RX shall deliver to the Park's cash control
facility the following: (a) remaining cash till, (b) a daily report of the day's
operations on Six Flags' "Daily Sales Report" form, and (c) the day's daily
gross receipts, including without limitation credit card sales drafts, credit
memos and all other materials evidencing sales transactions during such day
(collectively, the "Deposits"). Such Deposits are received subject to audit by
Six Flags as set forth herein and Six Flags may correct and credit or debit RX
for any inaccuracies or errors in RX's computation of Deposits. Six Flags may
refuse to accept or revoke acceptance of any Deposits, including any sales
drafts or credit adjustments, which are illegible or which fail to comply with
the terms of this Agreement, including, but not limited to, any federal or state
law.
(ii) RX shall retain copies of sales drafts and other
materials evidencing sales transactions related to sale of Goods/Services for a
period of one (1) year from date of transaction. This Section shall survive the
termination of the Agreement.
F. Compliance with Laws.
RX agrees that at all times during the Term it shall be in
compliance with all laws, rules and regulations with respect to operation of the
Ride Photo Shop in the Park, including, without limitation, all environmental
and employment laws, rules and regulations. RX Agrees that it shall be
responsible for
RX Agreement Page 3 of 19
<PAGE>
obtaining, at its sole cost and expense, all licensing and/or permits required
in connection with operation of the Ride Photo Shop in the Park.
G. Employees.
(i) RX acknowledges that it has no authority to employ persons
on behalf of Six Flags, and no employees or agents of RX shall be deemed to be
agents or employees of Six Flags.
(ii) Without Six Flags' prior written consent, RX shall not,
until after the second anniversary of the end of the Term, solicit for the
purpose of hiring or employ, directly or indirectly, any employee employed by,
or independent contractor engaging in business with, Six Flags, in each case,
during the Term. This subsection of the Agreement shall survive until the second
anniversary of the end of the Term.
(iii) RX and Managers of RX's Ride Photo Shop, must be trained
completely in the areas of labor law, wage and hour law, and regulations
regarding the employment of minors. It shall be the responsibility of RX to seek
and obtain outside agencies to provide this training.
(iv) RX shall develop their own employee handbook, which
handbook shall include Park rules, regulations, and work guidelines. Six Flags
shall provide such specific rules, regulations and work guidelines to RX. In
addition, RX's own statements regarding harassment, drug testing policies, fair
employment practices, and safety standards, etc., shall be included in RX's
employee handbook.
(v) RX represents and warrants that it shall, at its sole cost
and expense, recruit, train, supervise and furnish the services of at least one
(1) person to operate the Ride Photo Shop, and perform services in connection
with the Ride Photo Shop as set forth in Exhibit C attached hereto and
incorporated herein ("RX's Employees") during Operating Hours. RX acknowledges
that Six Flags will suffer great harm if RX breaches the agreement set forth in
this subclause, the amount of which would be difficult to determine. Therefore,
RX agrees to pay Six Flags liquidated damages of $250.00 for each Park operating
day that RX fails to furnish the services of one (1) trained person to operate
the Ride Photo Shop.
(vi) Six Flags shall provide RX with a list of approved
vendors where RX may purchase, at RX's expense, Park approved uniforms for use
by RX employees. RX agrees that all such uniforms are to be worn by RX
employees, at the proper length and in the proper size for each employee. RX
and/or employees of RX, are responsible for the care and laundering of RX
uniforms. Wardrobe facilities and/or lockers are not available for RX employees
to change into and out of Park uniforms. Employees of RX are expected to report
to their work location, dressed in the proper Park attire with uniforms clean
and neat, in order to present a well groomed appearance to Park guests. In RX's
absence, Six Flags reserves the right to dismiss
RX Agreement Page 4 of l9
<PAGE>
for the day, any RX employee Six Flags deems is not dressed in a presentable
manner or is groomed in such a manner as to negatively affect Park guests.
Should such dismissal be necessary and result in the closure of RX's Ride Photo
Shop, RX shall be responsible to pay Six Flags liquidated damages as stated in
Paragraph G, section (v) of this Agreement.
(vii) RX shall be fully responsible for all RX's Employees,
including without limitation, responsibility for all salaries and other
compensation, withholding taxes, worker's compensation insurance, and other
required payments in connection with such employees and shall be in compliance
with all laws, rules and regulations with respect thereto.
(viii) Each prospective employee of RX shall complete an
employment application, the form of which must be approved by Six Flags prior to
beginning work in the Park. In addition, each employee hired by RX to work in
the Park, must attend a Licensee Orientation as provided by Six Flags, prior to
beginning work in the Park.
(ix) It is the intention of Six Flags to maintain a drug and
alcohol free environment. As a Licensee of Six Flags, RX is required and agrees
to have in place a "Substance Abuse Policy" for its employees. This policy must
include supervisor awareness training, testing for reasonable suspicion and
discipline guidelines to terminate employment with or without cause for
violation of this policy. Testing may not take place on Park property and a
third party administrator must be utilized.
(x) RX agrees to verify, at its sole cost and expense, the
references of RX's Employees, including without limitation, prior positions of
employment, education, criminal records, immigration status, and right to work
in the United States and use due diligence to determine if any of RX's Employees
have provided false information or omitted significant information with respect
to their backgrounds and/or prior employment.
(xi) RX represents and warrants that it shall not, to RX's
knowledge, employ any person to work in the Park who has a criminal history
without Six Flags' knowledge and approval with respect to said employment. RX's
knowledge, for the purpose described in the immediately preceding sentence, is
the knowledge that RX would have known had RX performed a reference check of the
type performed by Six Flags. RX acknowledges that great harm can be suffered by
Six Flags if a RX employee is discovered to have a criminal record that could
have been discovered with a criminal history background check of the type
performed by Six Flags with respect to all prospective employees of Six Flags.
The parties agree that it will be difficult to determine the damages suffered by
Six Flags in the event of RX's failure to undertake such background checks.
Accordingly, the parties agree that in the event RX employs an individual for
work in the Park for whom RX has not, prior to hiring such person, undertaken a
criminal history background check of the type performed by Six Flags, then RX
shall pay Six Flags liquidated damages of
RX Agreement Page 5 of 19
<PAGE>
$1,000.00 with respect to each such employee of RX regardless of whether the
background check would have revealed any evidence of criminal history.
(xii) At the request of Six Flags, RX shall make available to
Six Flags all information obtained with respect to its employees, including,
without limitation, criminal history background checks.
(xiii) RX agrees to terminate employment at the Park for any
RX Employee working in the Park who: (a) is subsequently discovered to have a
criminal history and, after being advised of the same, Six Flags does not
approve said employment, (b) fails to comply with Park rules or (c) made
material misstatements or omissions on their employment application. RX agrees
to indemnify Six Flags from and against any claims by RX's employees arising
from or related to such dismissals.
(xiv) Six Flags agrees that RX may offer RX's Employees
discounts on Park admission and merchandise at the Park that Six Flags offers
its employees in accordance with Park policy.
3. FACILITY.
A. Rights/Responsibilities.
(i) In connection with RX's operation and management of the
Ride Photo Shop, Six Flags agrees that RX shall be entitled use of and/or access
to: (a) the facility to be constructed by RX, subject to the terms of this
Agreement, at which the Ride Photo Shop is operated (the "Facility"), (b)
adjacent portions of the Facility, as may be necessary for the operation and
maintenance of the Ride Photo Shop, and (c) common ways and areas within the
Park for incinerator or trash purposes, loading and unloading supplies and
installation, repair and maintenance of Equipment and/or other elements related
to the Ride Photo Shop. Nothwithstanding the foregoing, that RX shall not have
access to or be permitted to use that portion of the facility designed for
retail space to be operated by Six Flags ("Adjacent Six Flags Retail Space").
(ii) Six Flags will be responsible for heating, ventilation,
air conditioning, plumbing, electrical, in-park telephone expenses related to
the operation of the Ride Photo Shop in the Facility. Six Flags also agrees to
provide the following: (i) identification cards to enter the Park for RX's
Employees in the performance of their duties, (ii) RX's Employee access to the
Park employee parking areas on a first-come, first-serve basis to be used in the
performance of their duties, and (iii) Six Flags agrees to allow RX to have
supplies shipped to the Park's warehouse facility provided such supplies are
picked up within a 24 hour period of being received.
(iii) RX will be responsible for depositing all trash in Six
Flags' designated trash dumpsters and cleaning the facility.
RX Agreement Page 6 of 19
<PAGE>
B. Construction.
(i) RX shall, at its own expense, construct the facility,
including the Adjacent Six Flags Retail Space, subject to the terms of this
Agreement. Prior to the construction of the Facility in the Park at which the
Ride Photo Shop is operated, RX will submit its plans to the Park for approval.
These plans will include exterior and interior finishes as well as proposed
signage. RX will design the exterior and interior of the Facility and the
signage so that they will be consistent with the theme of the area of the Park
in which the Facility is located and Six Flags' design requirements policy (the
"Design Policy") (a copy of the Design Policy in effect as of the date hereof is
attached hereto and incorporated herein) as set forth on Exhibit D, as Six Flags
may amend from time to time upon notice to RX.
(ii) RX agrees to obtain all permits, consents, approvals and
clearances with respect to any construction contemplated hereunder and comply
with all laws, rules and regulations with respect thereto, including Six Flags
Maintenance Department rules, and shall secure Six Flags' prior approval with
respect to the following: (a) contractors, subcontractors, designers, architects
and material men who will perform work or services or supply materials in
connection with the construction of the Facility, (b) dates of commencement and
completion with respect to each phase of the construction of the Facility and
(c) agreements with all contractors, subcontractors, designers architects and
material men. RX shall only enter into construction agreements hereunder which
permit assignment to Six Flags and its affiliates. All construction hereunder
shall be made in a good and workmanlike manner.
(iii) Six Flags shall have the right, but not the obligation,
to test and inspect the construction of the Facility. RX agrees, at its sole
cost and expense, to remedy any problems with the Facility, upon Six Flags'
request, including without limiting the foregoing, problems associated with
defective design, engineering, workmanship, failure of factory construction,
materials or any component parts.
(iv) RX shall not place, maintain, or permit to be placed or
maintained on any exterior portion of the Facility or on the interior side of or
immediately adjacent to any glass door, wall or window of said Facility, or
otherwise display outside said Facility in the confines of the Park, any signs,
advertisements, lettering, trade, brand or service name, mark or logo, neon
lights, flood lights, colored lights, flashing lights or other exterior lighting
without prior written consent of Six Flags, which consent may be granted or
withheld in the absolute discretion of Six Flags. RX shall not use in, on or
about said Facility, or elsewhere in the Park, any sound producing or
reproduction equipment audible inside or outside said Facility, without the
prior written consent of Six Flags.
C. Alterations.
(i) RX agrees to make alterations, modifications, additions,
RX Agreement Page 7 of 19
<PAGE>
improvements or updates, at its sole cost and expense (including any necessary
design and engineering expenses), to the Facility [and/or the Equipment (as
hereinafter defined)], as hereinafter defined (collectively, the "Alterations"),
as shall be mutually agreed to by the parties and in accordance with the Design
Policy as Six Flags may amend from time to time upon notice to RX; provided,
however, that RX shall be required to make Alterations if: (i) the Alterations
are reasonably required by Six Flags: (x) for safety, quality or financial
control reasons, or (y) if new technology and improvements are made to the same
type of Facility [and/or Equipment] in the industry; and/or (ii) required by any
applicable laws, rules or regulations. All such Alterations shall be made in a
good and workmanlike manner.
(ii) RX covenants that it will not make, or suffer or permit
to be made, any Alterations in, on, or to the Facility and/or the Equipment
without first: (a) notifying Six Flags in writing sufficiently in advance of the
commencement thereof to enable Six Flags to post or record or both, appropriate
and effective notices of non-responsibility, (b) obtaining the written consent
of Six Flags thereto, which consent Six Flags shall not unreasonably withhold
provided that the proposed Alterations are of high quality and in harmony with
the overall design and appearance of the Park, and necessary to operate the Ride
Photo Shop in a safe and efficient manner, (c) obtaining the written approval of
Six Flags as to all contractors, subcontractors, and materialmen who will
perform work or services or supply materials in connection therewith and (d)
obtaining the written consent of Six Flags with respect to the proposed
commencement and completion date of such Alterations.
D. Maintenance and Repair.
RX agrees to properly maintain and keep in good repair and
condition the Facility, at its sole cost and expense. The Facility shall be
maintained in keeping with the themeing and overall aesthetics of the Park. In
the event any portion of the Facility and/or the Equipment is inoperative or a
component thereof has failed or is defective, RX shall repair the same no later
than 24 hours of RX's knowledge of the same or, in the case of Equipment, RX
shall secure comparable equipment (the "Replacement Equipment") and deliver the
same to the Park until such time as the Equipment is repaired. Failure of RX to
comply with the provisions of this subsection shall constitute default
hereunder.
E. Relocation.
RX agrees that Six Flags shall have the right to relocate RX
to another Facility in the Park, for any reason, provided that Six Flags agrees
to exercise reasonable care to minimize interference in or to RX's operations.
F. Ownership.
(i) It is understood and agreed that the Facility and the
RX Agreement Page 8 of l9
<PAGE>
improvements thereto, whether made by RX or Six Flags hereunder, shall remain
the property of Six Flags including, without limitation, the trademarks and
other indicia of Six Flags, Including an Alternate Name (hereinafter defined)
("Six Flags' Trademarks") and the trademarks of Six Flags' affiliates, including
Warner Bros. and DC Comics ("Affiliates' Trademarks")
(ii) It is further understood and agreed that the Equipment
(other than equipment in the adjacent Six Flags retail space), shall remain the
property of RX; provided, however, that if such Equipment has been paid for by
Six Flags, then such equipment shall remain the property of Six Flags. This
Section shall survive the termination of this Agreement.
G. Interference with Park/Parks' Operations.
RX understands that this Agreement may not be asserted to
affect or impede Six Flags' normal Park operations, including without
limitation, upgrading Park equipment, building and/or facilities, buying/selling
Park games or attractions, entering into agreements with other parties or
locating or changing other facilities, equipment, walkways or signage into or
surrounding the Facility, each without the consent of RX. RX shall have no
exclusive rights with respect to the sale and/or operation of concessions in the
Park similar in nature or type to the RX type Ride Photo Shop, during the term
of this Agreement.
4. EQUIPMENT.
A. Description.
RX agrees to provide, at its sole cost and expense, all
equipment, supplies, furnishings, displays, and other signage, cash registers,
credit card processing equipment and any other materials necessary to operate
the Ride Photo Shop (the "Equipment"). A general description of the Equipment is
set forth in Exhibit E, attached hereto and incorporated herein.
B. Delivery, Installation and Removal.
(i) RX agrees that it shall be responsible for the shipment,
installation and, promptly following the end of the Term, the removal, of the
Equipment, including parts therefor and/or Replacement Equipment (as hereinafter
defined), at its sole cost and expense. RX agrees that time is of the essence
with respect to this Agreement and the business of the Park is significantly
affected by RX's ability to have the Equipment installed and operating on
schedule and that the business, revenues and profits of the Park will be
affected in a materially adverse manner if the Equipment is not ready (in good
working order) for operation on the Commencement Date.
(ii) Six Flags shall have the right, but not the obligation,
to test
RX Agreement Page 9 of l9
<PAGE>
and inspect the Equipment and the installation and operation of the Equipment
during the Term. RX agrees, at its sole cost and expense, to remedy any problems
with the Equipment and installation thereof, upon Six Flags' request, including
without limiting the foregoing, problems associated with defective design,
engineering, workmanship, failure of factory construction, materials or any
component parts.
C. Additional Equipment..
RX agrees to install and/or supply additional Equipment, as
determined by mutual agreement of the parties, at no additional cost to Six
Flags.
5. PAYMENT TO RX.
A. Six Flags shall collect and record the receipts of the Ride Photo
Shop and Six Flags shall pay RX the following share of Net Revenues (as
hereinafter defined) during each operating season of the Term as follows:
Year RX's % of Net Revenue
---- ---------------------
2000 62%
B. "Net Revenue" means gross revenue of the Ride Photo Shop during
the applicable period less the sales tax paid or payable in respect thereto or
otherwise paid. RX agrees that Six Flags shall have the right to deduct the
following from RX's share of the Net Revenue: (ii) cash shortages, (iii) credit
card processing, and other transaction costs and charges, including charge backs
and fees related thereto, (iv) the cost associated with the damage or loss of
uniforms as set forth in more detail in Section 2 G (vi) hereof, and (v) the
cost of any bill or charge which is the basis or which may be the basis for a
lien against the Facility as set forth in more detail in Section 9 A (vii)
hereof.
C. RX's share of the Net Revenue will be calculated at the end of
the week. For payment purposes, a week shall be defined as the seven (7) day
period beginning Monday and ending on and including Sunday. Payments shall be
directed as set forth in this Agreement or as RX may otherwise direct in writing
and shall be payable twenty one (21) days from Six Flags' calculation thereof.
Six Flags shall have no further monetary liability or obligation to RX. Payments
shall be made to RX at the address indicated in the first paragraph of this
Agreement or otherwise as requested in writing by RX.
D. Notwithstanding Six Flags' deduction of sales tax from Net
Revenue, RX represents and warrants that all payments by Six Flags to RX of RX's
share of Net Revenue hereunder are exempt from any United States federal, state
and local taxes or other assessments, including any withholding taxes. RX shall
be solely responsible for, and shall pay when due, assessments arising from or
in connection with the receipt by RX of such Net Revenue.
RX Agreement Page 10 of 19
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6. AUDIT RIGHTS.
Until all claims and rights of Six Flags shall have been fully
ascertained, fixed and paid RX shall maintain, in accordance with generally
accepted accounting principles, separate and accurate records of the gross
receipts of the Ride Photo Shop at the Park showing in detail all business
transacted by RX. Six Flags shall have the right, at all reasonable times, to
examine and inspect such records as well as any other business records of RX
pertaining to the operation of the Ride Photo Shop. This Section shall survive
the termination of this Agreement.
7. CHANGE IN FINANCIAL CONDITION.
RX agrees to notify Six Flags promptly of any significant/material
change in its financial condition.
8. TRADEMARKS.
A. RX hereby grants Six Flags the exclusive royalty-free right and
license to use RX's trademarks, trade names, service marks, logos and symbols.
("RX's Trademarks") for the Term of the Agreement in connection with the Ride
Photo Shop in the Park. RX's Trademarks are and shall remain RX's sole and
exclusive property.
B. Six Flags reserves the right to create an alternate name and/or
logo (collectively, the "Alternate Name") for the Ride Photo Shop. Six Flags
shall own all right, title and interest in and to such Alternate Name, and all
goodwill with respect thereto shall inure to the benefit of Six Flags. RX agrees
that any Alternate Name shall be the exclusive property of Six Flags.
C. Six Flags' Trademarks are and shall remain the sole and exclusive
property of Six Flags, and Affiliates' Trademarks are and shall remain the sole
and exclusive property of Six Flags' affiliates, and RX shall not use nor permit
others to use Six Flags' Trademarks, including the Alternate Name, and
Affiliates' Trademarks for any purpose without the prior written consent of Six
Flags nor do anything which could in any way conflict with Six Flags' or its
affiliates' use or ownership of such trademarks.
9. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS.
A. RX represents and warrants that:
(i) RX is, and will during the term of this Agreement be,
solvent and able to meet its obligations hereunder as and when they become due;
(ii) RX shall not use, or suffer or permit any person or
persons
RX Agreement Page 11 of 19
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to use, the Equipment and/or Facility for any purpose other than as set forth
herein without the prior written consent of Six Flags, or in any unlawful manner
or for any unlawful purpose;
(iii) RX shall comply with, and use its best efforts to cause
its agents and employees to comply with all rules and regulations of the Park as
may be in effect from time to time. RX confirms that it has been provided with a
copy of the rules and regulations of the Park;
(iv) RX will not offer or provide any Goods/Services in or
from the Ride Photo Shop or elsewhere in the Park, without the prior express
written authorization of Six Flags. Any uncertainty with respect to the
Goods/Services which RX is authorized to offer or provide shall be resolved in
the manner which most limits and restricts RX's authority, and any reasonable
interpretation of such authority by Six Flags shall be binding upon RX;
(v) RX shall maintain, at its sole cost and expense during the
Term of this Agreement, a valid business license and any other necessary permits
or licenses and shall provide proof of same to Six Flags;
(vi) The Ride Photo Shop, including the Facility and the
Equipment with respect thereto, will be fit and safe for its intended commercial
use, shall be free from defects, shall comply with all applicable laws,
ordinances and regulations, including building, electrical and/or other codes,
and will meet the operation objectives set forth herein;
(vii) RX shall promptly pay all bills and charges relating to
the Ride Photo Shop in the Park, including any Alterations to the Equipment
and/or the Facility, and shall protect and indemnify Six Flags and the Park
against all such bills and charges and liens relating thereto. In the event that
RX desires to contest any bill or charge which is the basis or which may be the
basis for a lien against the Facility constituting the Ride Photo Shop or the
Park or both, RX shall, within five (5) days of notice therefor, obtain a bond
of, or deposit collateral with, a responsible corporate surety or depository to
protect against any such lien in the amount of any such bill estimated costs and
expenses, including without limitation, attorney's fees and interest. If RX
fails to post such bond or collateral within the aforementioned time period, Six
Flags may, without prejudice to any other right or remedy of Six Flags herein
have the option to: (a) pay any such claim, bill or charge on RX's behalf, and
RX shall reimburse Six Flags on demand for the amount of any such payment or (b)
have the right to set off the amount of said claim, bill or charge from the
portion of RX's Net Revenue due hereunder. Should any claim or lien be filed or
recorded affecting the Facility or the Park or both, or should any action
affecting the title thereto be commenced, RX shall give Six Flags written notice
thereof promptly after the same becomes known to RX, and RX shall thereafter
remedy the same with respect to the Facility or the Park or both;
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(Viii) RX's Trademarks, and/or any advertising, promotion or
publicity materials supplied Six Flags by RX hereunder will not violate,
infringe upon or give rise to any adverse claim with respect to any common law
or other right whatsoever, including, without limitation, any copyright,
trademark, service mark, right of privacy or publicity or contract right of any
party or violate any other law; and
(ix) Except as otherwise expressly permitted herein, RX shall
not have the right to use or permit the use of any of Six Flags' Trademarks,
including any depiction of the Park or Affiliates' Trademarks without Six Flags'
prior written consent identifying the use consented to, which consent may be
granted or withheld in the absolute discretion of Six Flags. This Section shall
survive the termination of the Agreement.
10. SUBCONTRACTORS.
Six Flags acknowledges that RX has the right to utilize
subcontractors (collectively, the "Subcontractors") to fulfill the obligations
set forth hereunder, subject to Six Flags' prior approval with respect thereto
and the work to be performed thereby. RX agrees that (i) the terms of the
agreement between RX and any Subcontractor will comply with all the terms of
this Agreement, including, without limitation, the provisions concerning
criminal background checks of persons working at the Park for or on behalf of RX
and the provisions concerning insurance, (ii) there will be no disruption in the
operation of the Ride Photo Shop whatsoever (even in the event of replacement of
the Subcontractors), and (iii) RX shall not cause or permit any liens, claims or
encumbrances to be placed on or with respect to the Equipment, Facility, Park or
any other property of Six Flags or RX which is the subject of this Agreement.
11. ASSIGNMENT.
The obligations of RX herein are personal in nature and this
Agreement and the obligations of RX hereunder shall not be assigned or otherwise
transferred by RX, in whole or in part, to any third party without the prior
written consent of Six Flags. Six Flags may assign this Agreement to any
affiliate of Six Flags. For purposes of this Agreement, the term "assigned" or
"assignment" shall include, without limitation, a consolidation or merger of RX
with or into another party, a reorganization or a sale of all or substantially
all of the assets of RX to another party, and/or transfer of a controlling
interest in RX's business in or to another party.
12. INDEMNITY.
RX covenants that it will protect, defend, hold harmless and
indemnify Six Flags, its directors, officers, employees, agents, subsidiaries,
affiliates, partners and parent companies from and against any and all expenses,
claims, actions, liabilities, attorney's fees and costs, damages and losses of
any kind or nature whatsoever (including, without limitation of the foregoing,
death of or injury to
RX Agreement Page l3 of 19
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persons and damage to property), actually or allegedly resulting from or
connected with the operation of the Ride Photo Shop (including, without
limitation of the foregoing, goods sold, work done, services rendered or
products utilized therein, advertising and promotion therefor, lack of repair in
or about the area occupied or arising out of any actual or alleged infringement
of any patent or claim of patent, copyright, trademark, service mark, or trade
name) or from the omission or commission of any act, lawful or unlawful, or
breach of this Agreement by RX or its agents or employees, whether or not such
act is within the scope of the employment of such agents or employees and not
due to the negligence or willful misconduct of Six Flags or its employees and
agents. This Section shall survive the termination of the Agreement.
13. INSURANCE
A. To insure RX's performance of the obligations and warranties as
set forth herein, but not by way of limitation, RX agrees, at its expense, to
procure and maintain Comprehensive General Liability against claims for bodily
injury, personal injury or death and property damage. Contractual Liability,
Products Liability, Automobile Liability against claims for bodily injury,
personal injury or death and property damage, and Worker's Compensation
Insurance, including an employer liability endorsement (collectively, the
"insurance") each covering claims occurring upon, in or about the Park, and on,
in or about the adjoining streets, sidewalks and passageways and identifying
this Agreement, the Park and Six Flags Theme Parks Inc. as being named as
additional insured on the Insurance policies described herein, including any
renewals of such Insurance. The Insurance shall apply separately to each insured
against whom a claim is made or suit is brought. The Insurance shall remain in
full force and effect for the Term of this Agreement and one (1) year
thereafter, and all such Insurance shall include a waiver of subrogation against
Six Flags. This Section shall survive the termination of the Agreement.
B. The Insurance shall be written by a company rated "A" or better
by Best Insurance Reports, or by such other company consented to in writing by
Six Flags. The policy of Insurance will provide, inter alia, for thirty (30)
days advance notice to Six Flags and RX of any proposed policy modification or
cancellation. Upon any cancellation and/or modification of any Insurance policy
required hereby, and prior to the effective date thereof, RX shall deliver
replacement insurance to Six Flags. RX shall forward the Certificate of
Insurance form attached hereto and incorporated herein as Exhibit F to its
insurer for execution and transmit such executed Certificate to Six Flags
promptly after execution of this Agreement, and RX shall also supply Six Flags
with its official Certificate of Insurance promptly after execution of this
Agreement for its records.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out
of a single occurrence and $3,000,000 for all claims in the aggregate.
RX Agreement Page l4 of 19
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D. All Insurance policies required to be maintained shall be primary
and shall not require contribution from any coverage maintained by Six Flags,
and shall not contain, without Six Flags' prior written consent, any special or
non-customary exclusions.
E. RX shall further, upon request, furnish Six Flags with a
certificate from RX's insurance carrier certifying that RX has obtained Worker's
Compensation insurance upon its employees, or an opinion of counsel satisfactory
to Six Flags that such coverage is not required.
F. RX understands that Six Flags' rights and RX's obligations
hereunder shall not be limited or affected by the provisions of this Section 13.
14. BREACH.
In the event of breach of any provision of this Agreement by RX or
in the event RX should become insolvent, file a voluntary petition in
bankruptcy, have a receiver, liquidator or trustee in bankruptcy appointed over
its affairs, have a significant material adverse change in its financial
condition, and notwithstanding Six Flags' right to receive liquidated damages
hereunder, in lieu thereof, Six Flags may, at its option, then or at any time
thereafter while said breach continues, upon fifteen (15) days prior written
notice to RX. terminate this Agreement and the license and privileges granted
hereby and be relieved of all further obligation hereunder arising after the
date of termination. In the event of termination hereunder, RX shall then quit
and surrender the premises as set forth in this Agreement and the license and
privileges granted hereby shall then terminate; provided, however, that RX shall
remain liable for all obligations under this Agreement, and Six Flags may, in
addition to any remedy herein provided, recover from RX any damages to which it
may be entitled in law or equity. This Section shall survive the termination of
this Agreement.
15. NOTICES.
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To Six Flags: Six Flags Magic Mountain
26101 Magic Mountain Parkway
Valencia, CA. 91355
Attn: Director, Retail Dept.
Fax: (805)255-4789
copy to: Premier Parks
122 East 42nd Street 49th Floor
New York, NY 10168
RX Agreement Page 15 of 19
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Attn: General Counsel
Fax: (212) 949-6203
To RX: RX Technology, Inc.
2264 7th Street
Mandeville, LA. 70471
Attn: D. Rex Gay
Fax: 504-727-9815
or to such other addresses as the parties may direct by written notice given as
hereinabove provided. Notice shall be deemed given when received as evidenced by
the return receipt or the date such notice is first refused, if that be the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
16. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, RX may,
subject to any indebtedness of RX to Six Flags, promptly remove RX's Equipment
from the Park, except that Six Flags' Trademarks or Six Flags' Affiliates'
Trademarks shall be removed from the Equipment and remain at the Park, and RX
shall quit and surrender the Ride Photo Shop in the Park in good condition,
reasonable wear and tear excepted. Unless the parties otherwise agree, if RX
fails to remove the Equipment from the Park within five (5) days after
termination of this Agreement, then RX shall be deemed to have abandoned such
property and title to the same shall at that time vest in Six Flags. Any costs
and expenses incurred by Six Flags in removing such abandoned property
(including the reasonable value of the services rendered by Park employees in
connection therewith) shall be paid to Six Flags by RX promptly following demand
therefor. This Section shall survive the termination of this Agreement.
17. GOVERNING LAW.
A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State of
California (the "Specified State") and that the laws of the Specified State
shall govern the construction, interpretation and enforceability of this
Agreement. Should any dispute arise in connection with the construction,
interpretation, performance or enforcement of the provisions of this Agreement,
Each of the parties hereto agree that any such action shall be brought only in
the courts located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the
RX Agreement Page 16 of 19
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relationship of the parties hereto, (ii) agree that any such action, suit or
proceeding shall be brought in any state or federal court of competent
jurisdiction sitting in the federal court district in the Specified State, (iii)
submits to the jurisdiction of such courts and (iv) to the fullest extent
permitted by law, agree that it will not bring any action, suit or proceeding in
any forum other than as provided herein (but nothing herein shall affect the
right of the Six Flags to bring any action, suit or proceeding in any other
forum to the extent necessary to enforce its rights under this Agreement).
18. RELATIONSHIP OF THE PARTIES.
RX is an independent contractor. Nothing contained in or done
pursuant to this Agreement shall be construed as creating a partnership, agency,
joint employer, joint venture or landlord-tenant relationship. Except as
otherwise expressly provided in this Agreement, no party shall become bound,
with respect to third parties, by any representation, act or omission of the
other.
19. FORCE MAJEURE.
Neither party shall be liable to the other party for damages for
its failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God. In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
20. PUBLICITY.
A. Six Flags shall, at its discretion, develop, direct and produce
any and all advertising and promotion in connection with the Ride Photo Shop in
the Park for the purposes of advertising, promoting, publicizing and
merchandising the Ride Photo Shop in the Park. RX agrees to cooperate, as
necessary, when requested to provide any advertising or promotion with respect
to the Ride Photo Shop.
B. Six Flags shall have the right to use RX's Trademarks and the
names of any person or entity rendering services on or associated with the Ride
Photo Shop, as well as any such person or entity's biography, photographic or
non-photographic likeness and recorded voice.
C. RX shall not have the right to have or cause to have sponsors
with respect to the Ride Photo Shop without the prior written approval of Six
Flags.
D. RX agrees that Six Flags may obtain sponsors for the Ride Photo
Shop which may include affixing signage in or around the Ride Photo Shop, and
any proceeds Six Flags derives in connection therewith shall be solely that of
Six Flags.
RX Agreement Page l7 of 19
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21. PROPRIETARY INFORMATION.
RX agrees that this Agreement and all information regarding the
business operations, policies and practices of Six Flags ("Proprietary
Information") acquired or learned in connection with the activities conducted
under this Agreement shall be deemed confidential and shall be kept in strict
confidence under appropriate safeguards. The term Proprietary Information, as
used herein, does not include any information that is or becomes generally
available to the public other than as a result of disclosure in violation of
this Agreement. This Section shall survive the termination of the Agreement.
22. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
23. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules hereto)
constitutes the entire agreement between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
agreements and undertakings of the parties pertaining to the subject matter
hereof. This Agreement may not be modified except by written instrument duly
executed by the parties hereto.
-----------------------------------------
RX Agreement Page 18 of 19
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IN WITNESS WHEREOF, this License Agreement has been duly executed by the
parties hereto on the day and year first hereinabove written.
SIX FLAGS MAGIC MOUNTAIN, a division of Six
Flags Theme Parks Inc.
By: /s/ Del Holland
---------------------------------
Del Holland
Vice President, General Manager
RX TECHNOLOGY, INC.
By: /s/ D. Rex Gay
---------------------------------
D. Rex Gay
President
RX Agreement Page 19 of 19
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Exhibit A
Location
Locations shall be determined by Six Flags in its sole discretion and may
be changed from time to time in the reasonable discretion of Six Flags.
RX SHALL OPERATE THE RIDE PHOTO SHOPS AT THE FOLLOWING LOCATIONS:
1. Riddler's Revenge Roller Coaster
2. Batman the Ride Roller Coaster
3. Children's Roller Coaster in Bugs Bunny World
4. Goliath Ride Roller Coaster
RX Agreement
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) RX shall comply with Six Flags' credit card procedures
(the "Credit Card Procedures") (a list of the Credit Card Procedures in effect
as of the date hereof is attached hereto and is incorporated herein), as Six
Flags may amend them from time to time upon notice to RX, with respect to
acceptance of Credit Cards as payment for any Goods/Services.
(ii) RX agrees that it shall not: (A) discriminate in favor of
any Credit Card accepted for payment over another, (B) require a minimum
transaction amount or impose a surcharge as a condition for honoring Credit
Cards, (c) impose a requirement on Credit Card holders to provide any personal
information as a condition for honoring Credit Cards unless otherwise required
by the Credit Card Procedures, (D) make or require a photocopy of a Credit Card,
(E) make a Credit Card sale where only part of the consideration due is paid by
use of such Credit Card, or (F) accept a Credit Card for any purpose which is
prohibited by the Credit Card Procedures.
(iii) RX shall not make a Credit Card sale to any person if:
(A) the Credit Card being presented has expired according to the expiration date
shown on such Credit Card, (B) the sale has been declined for authorization, (c)
RX has reasonable grounds to believe the Credit Card being presented is
counterfeit, fraudulent or stolen, or (D) the signature on the Credit Card does
not appear to be the same as the signature on the sales draft or the spelling of
the signature on the sales draft is different from the spelling of the name on
the Credit Card. RX shall use reasonable efforts to retrieve any credit card
from the customer when instructed by a service provider in response to an
authorization or other inquiry.
(iv) RX agrees to display symbols of the Credit Cards,
supplied by Six Flags hereunder, at its Facility in the Park to effectively
inform customers of the Park that the Credit Cards are honored by RX.
(b) Returns and Adiustments.
(i) All disputes between RX and any Credit Card holder
respecting any Credit Card transaction hereunder shall be settled between RX and
such Credit Card holder. RX agrees that in the event of a Credit Card dispute,
RX
RX Agreement
<PAGE>
shall reasonably address the Credit Card holder's concern in a good faith
manner.
(ii) RX shall maintain a fair and consistent policy for
exchange and return of Goods/Services and for the adjustment of amounts due on
Credit Card transactions and such policy shall be the same as available to cash
customers. RX shall make no cash refunds or payments to Credit Card holders for
returns or adjustments on Credit Card sales.
(iii) When a refund or payment is due to a Credit Card holder
for return or adjustment, RX shall prepare, execute and deliver to Six Flags or
cause to be delivered to Six Flags a legible credit adjustment memo on a form
provided or approved by Six Flags and deliver to the Credit Card holder a copy
of the completed form. Each credit adjustment memo shall be imprinted with or
contain the following: (A) Six Flags' name and merchant account number, (B) city
and address where the credit or adjustment occurred, (c) Credit Card holder's
name and Credit Card number, (D) Credit Card expiration date, (E) the date of
the return or adjustment and the date of the initial transaction, if available,
(F) the amount of the credit, and (vii) a brief description of the
Goods/Services returned.]
(iv) With respect to each credit adjustment memo presented to
Six Flags and/or transmitted hereunder, RX represents and warrants that: (A) the
credit adjustment memo represents an amount lawfully due to a Credit Card holder
for the return or adjustment of Goods/Services previously purchased with the
Credit Card, (B) a sales draft relating to and including the amount of the
credit memo was previously presented to Six Flags and/or transmitted hereunder,
(c) the credit adjustment memo does not duplicate information concerning the
same transaction in any other credit slip unless Six Flags requests a
resubmission, (D) the signature appearing on the credit adjustment memo is that
of an authorized employee of RX, and (E) RX has complied fully with the terms of
this Agreement.
(c) Failure to Comply.
In the event RX fails to comply with the Credit Card
Procedures or the terms of this Exhibit C for a given Credit Card transaction
and said sales draft is returned to Six Flags, or in the event Goods/Services
are returned by the customer that paid by Credit Card, or in the event
Goods/Services are not received by customer or any defense or problem is made or
presented by customer questioning the validity or authorization of the
transaction, RX agrees that Six Flags may, in its sole discretion: (i) deduct
the amount of said Credit Card transaction from RX's share of the revenue from
the Ride Photo Shop due and owing RX, if any, or (ii) bill RX in the amount of
said Credit Card transaction, and RX shall pay Six Flags the same within five
(5) days of receipt therefor, or (iii) demand payment from RX in the amount of
said Credit Card transaction and RX shall pay Six Flags immediately upon its
receipt of Six Flags' demand. Failure of RX to pay Six Flags as set forth herein
for any outstanding Credit Card transactions shall constitute a breach of the
Agreement.
RX Agreement
<PAGE>
(d) Termination of Acceptance.
In the event Six Flags' agreement with respect to the Credit
Cards terminates or Six Flags, in its sole discretion, determines that it does
not want RX to accept Credit Cards as payment for Goods/Services hereunder, RX
agrees to discontinue acceptance of Credit Cards and remove the Credit Card
symbols from the Facility upon notification by Six Flags.
2. CASH.
(a) Acceptance.
RX represents and warrants that it shall cause all cash
received by or on RX's behalf for sale of Goods/Services hereunder to be rung in
the cash register or other Six Flags approved cash collection equipment and
deposited in such cash register or other equipment at the time of sale. RX
agrees that it shall not accept cash for a mail or telephone order transaction.
(b) Returns and Adjustments.
(i) All disputes between RX and any customer respecting any
cash transaction hereunder shall be settled between RX and such customer. RX
agrees that in the event of a dispute, RX shall reasonably address the
customer's concern in a good faith manner.
(ii) RX shall maintain a fair and consistent policy for
exchange and return of merchandise and for the adjustment of amounts due on cash
transactions and such policy shall be the same as available to credit customers.
(iii) When a refund or payment is due to a customer for return
or adjustment, RX shall prepare, execute and deliver to Six Flags or cause to be
delivered to be delivered to Six Flags a legible authorized refund slip.
(iv) With respect to each legible authorized refund slip
presented to Six Flags hereunder, RX represents and warrants that (A) the refund
slip represents an amount lawfully due customer for the return or adjustment of
Goods/Services previously purchased in cash, (B) a sales draft relating to and
including the amount of the refund was previously presented to Six Flags and/or
transmitted hereunder, (c) the refund slip does not duplicate information
concerning the same transaction in any other refund unless Six Flags requests a
resubmission, (D) the signature appearing on the refund slip is that of RX, and
(E) RX has complied fully with the terms of this Agreement.
(v) RX agrees that in the event Goods/Services hereunder are
returned on a day that said Goods/Services were not purchased, Six Flags may, in
its sole discretion: (A) deduct the amount of said return from RX's
RX Agreement
<PAGE>
share of the revenue from the Ride Photo Shop due and owing RX, if any; (B) bill
RX in the amount of said return and RX shall pay Six Flags the same within five
(5) days of receipt therefor or (c) demand payment from RX in said amount and RX
shall pay Six Flags immediately upon receipt of Six Flags' demand. Failure of RX
to pay Six Flags as set forth herein for any amount outstanding shall constitute
a breach of the Agreement.
Credit Card Procedures
RX represents and warrants that it shall follow the following Credit Card
Procedures, as may be amended from time to time by Six Flags upon notice to RX:
1. Each Credit Card sale shall be evidenced by a legible sales draft
(the "Draft") on a form approved by Six Flags, indicating the full amount due
for Goods/Services sold hereunder.
2. Each Draft shall be imprinted by RX, or show evidence of the
electronic equivalent obtained through use of a terminal which reads the
magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) Six Flags'
name and merchant account number, (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including the
account number, name and expiration date of the Credit Card, (iv) the date the
transaction takes place and the price of the Goods/Services, (v) total amount of
the transaction, including all applicable taxes, (vi) description of
Goods/Services, and (vii) signature of the Credit Card holder.
4. RX shall compare the signature on the Draft with the signature on
the Credit Card to ascertain that they are the same, and if the Credit Card has
a photograph of the Credit Card holder, verify that the Credit Card holder and
the person presenting the Credit Card appear to be the same person. If RX
believes there is a discrepancy in the signature or if the photographic
identification is uncertain, RX shall contact the service provides for
instructions.
5. If the signature panel on the Credit Card is blank, RX shall do
the following: (i) review positive identification to determine that the user is
the Credit Card holder; such identification must consist of a current official
government identification document (such as a passport or driver's license) that
bears the Credit Card holder's signature, (ii) indicate such positive
identification (including any serial number and expiration date) on the Draft
and (iii) require the Credit Card holder to sign the signature panel of the
Credit Card prior to completing the transaction.
6. On mail and telephone order sales, if any, RX shall print on the
Draft the information required in Paragraph 3 of these Credit Card Procedures
and, in addition, the following: (i) the customer's name and account number,
(ii) whether the order was placed by mail (M.O.) or telephone (T.O.), and (iii)
whether or not
RX Agreement
<PAGE>
authorization is obtained. With respect to mail and telephone order sales, RX
does not need to secure the Credit Card holder's signature or Credit Card
imprint. RX understands that telephone and mail order transactions are permitted
at RX's sole risk; namely, that any defense or problem raised by a customer
questioning the validity or authorization of the transaction may be made.
7. For each Credit Card sale, RX shall deliver or cause to be
delivered a copy of the completed sales draft to the customer, evidencing the
full amount due for the Goods/Services.
8. RX shall not complete a sales transaction without first obtaining
an authorization from the designated service provider for the total amount of
the transaction. RX shall print legibly on the Draft the authorization/approval
code, evidencing any authorization so obtained.
RX Agreement
<PAGE>
Exhibit C
Emplovees
RX's Employees shall include the following:
No. of Employees Title Function Location
- ---------------- ----- --------- --------
RX Agreement
<PAGE>
Exhibit D
LESSEE
AND
CONSULTANT
DESIGN GUIDELINES
Kevin P. Barbee, AIA
January 9, 1994
RX Agreement
<PAGE>
Exhibit E
Equipment
Quantity Description (Year/Brand/Item/Special Features Improvements
- -------- --------------------------------------------- ------------
RX Agreement
<PAGE>
Exhibit 10.14
Six Flags Great America
Raging Bull
<PAGE>
RX TECHNOLOGY AGREEMENT
THIS RX TECHNOLOGY AGREEMENT is made as of this 1st day of April. 1998,
by and between SIX FLAGS AMERICA, a division of Six Flags Theme Parks Inc., a
Delaware Corporation, having offices at 542 North Route 21, Gurnee, IL ("Six
Flags') and RX Technology a corporation, having offices a P.O. Box 9112
Manderville, LA 70470 ("Lessee").
W I T N E S S E T H
WHEREAS, Six Flags owns, operates or manages the theme amusement facility
which is open to the general public and known as Six Flags Great America in
Gurnee (the "Park").
WHEREAS, RX Technology desires to operate a retail concession known as
R.X Technology (the "Concession") to sell photographs of guests riding "Shock
Wave, Eagle, Kiddie Coaster" (the "Goods") in the Park as set forth herein;
WHEREAS, Six Flags desires to grant RX Technology a license to operate
the Concession in the Park, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, Six Flags and RX Technology agree as follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination.
Six flags grants RX Technology a license to operate the Concession in the Park
at such locations of the Park as is set forth on Exhibit A-I hereto during the
period of time (the "Term") commencing April 1, 1998 (the "Commencement Date")
and terminating at the end of the Park's 1999 operating season. In the event
that RX Technology meets or exceeds a year to date gross per capita two year
average of $.16 at the locations as set forth, an Exhibit A-I at the end of the
1999 operating season, the existing Agreement will be extended through the 2000
operating season (the "Termination Date".
2. OPERATION.
A. Hours of Operation.
RX Technology agrees to operate the Concession during the
hours and days, including Sundays and holidays, that the Park is open for
business in accordance with schedules prepared by Six Flags which Six Flags may
modify in Six Flags' sole discretion at any time on twenty-four (24) hours
notice to RX Technology and such additional hours as are required by Six flags
(the "Operating Hours"). RX Technology acknowledges that Six Flags will suffer
great harm if RX Technology breaches the agreement set forth in this subsection,
the amount of which would be difficult to determine. Therefore, RX Technology
agrees to pay Six Flags liquidated damages of $50.00 for each Park operating day
that RX Technology opens the Concession thirty (30) minutes after the opening
time or the Park's Operating Hours and/or closes the Concession thirty (30)
minutes before the closing time of the Park's Operating Hours upon notice
thereof by Six Flags and such
<PAGE>
liquidated damages amount shall be increased an additional $50.00 for each
successive violation of Park Operating Hours upon notice thereof by Six Flags,
up to a maximum liquidated damages amount or $500.00.
B. Approval of Goods.
RX Technology agrees to submit samples of all products
detailed plans, specifications, drawings and other information with respect to
Goods for sale to be made available to customers in the Park in connection with
the Concession, for Six Flags' approval in advance of sale of the same. RX
Technology agrees to make such changes to the Goods, at its sole cost and
expense, as Six Flags shall reasonably determine. RX Technology also agrees to
coordinate with the Park in coding each of RX Technology's Goods and inputting
the same in the cash register for tracking purposes. To the extent requested by
Six Flags, RX Technology shall comply with Six Flags' point of sale and other
information systems requirements.
C. Price of Goods.
(i) RX Technology agrees to submit to Six Flags for its
review and approval, a retail price list of all RX Technology's Goods for sale
to customers of the Park (the "Approved Price List") at least two (2) weeks
prior to Commencement Date or any proposed change in any previously approved
price list. RX Technology agrees to make changes to the Approved Price List as
Six Flags shall reasonably request. RX Technology shall be responsible for all
costs and expenses associated with production and printing of the Price List and
any changes thereto, and such costs shall not be deducted from Net Revenue (as
hereinafter defined).
(ii) RX Technology agrees to make changes to the Approved
Price List (the "Revised Price List") at any time during the Term if the parties
mutually determine, that an adjustment is appropriate. RX Technology shall be
responsible for all costs and expenses associated with production and printing
of the Revised Price List, and such costs shall not be deducted from Net Revenue
(as hereinafter defined).
(iii) RX Technology agrees that it shall not make its Goods
available to any party free of charge or at a discounted price unless RX
Technology is engaging in sampling activities approved by Six Flags, etc.
Notwithstanding the foregoing, RX Technology agrees to offer such discounts on
its Goods as Six Flags shall require and as Six flags shall offer in locations
owned by Six Flags. RX Technology shall, at all times, charge customers,
including without limitation, family members, employees and business associates,
the price set forth on the Approved Price List for its Goods except as otherwise
expressly set forth herein.
D. Methods of Sale: Payment and Return Policies.
(i) The Goods shall be available for sale to customers of
the Park as follows: at point of purchase (each, a "Method of Sale"). A Method
of Sale shall be discontinued at the discretion of Six Flags.
(ii) The following forms of payment for RX Technology Goods
will be accepted: MasterCard, Visa, American Express and Discover credit cards
(collectively, the "Credit
2
<PAGE>
Legoland
Dragon
<PAGE>
Services Agreement
This Services Agreement is made and entered into effective the 10th of Dec.
1998, by and among Polaroid Corporation, a Delaware corporation with a place of
business at 784 Memorial Drive, Cambridge, MA 02139 ("Polaroid"), LEGOLAND
California, a California corporation with a place of business at One LEGO Drive,
Carlsbad, CA 92008 ("LEGOLAND") and RX Techno1ogy, Inc., a Nevada corporation
with a place of business at Manderville, LA ("RXT")
WHEREAS, Polaroid has paid a sponsorship fee to LEGOLAND, which entitles
Polaroid to provide all photographic services in the Park, or subcontract the
services to concession operators upon mutual agreement with LEGOLAND; and
WHEREAS, Polaroid wishes to engage RXT to provide certain photographic
services and RXT is willing to accept such engagement; and
WHEREAS, LEGOLAND is willing to accept RXT's engagement to provide the
goods and services as hereinafter described.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows.
1. Definitions
1.1 "Designated Attractions" means the Dragon Coaster and Joust
attractions in the Park.
1.2 "Gross Sales" means the price of all goods, wares and merchandise
sold, and the charges for all services performed by RXT in the Park, for cash,
credit or otherwise without reserve or deduction for uncollected amounts,
including without limitation (i) sales and services (a) where orders originate
in at or from the Park, regardless of whether delivery or performance takes
place in the Park, and (b) where orders are made by mail, telephone, fax or
email and are received or fulfilled at the Park, and (ii) deposits not refunded
to customers. Excluded from Gross Sales shall be (A) refunds to customers on
transactions otherwise included in Gross Sales, and (B) sales, excise or similar
tax imposed by governmental authority and collected from customers and paid out
as required by law. No other tax shall be deducted from Gross Sales.
1.3 "Guest" means a member of the public in the Park.
1.4 "Imaging System" means RXT's High Speed Ride Imaging System.
1.5 "Other Merchandise" means merchandise such as mugs, t-shirts and the
like which is imprinted with Guests' images.
1.6 "Park" means the LEGOLAND California park.
1.7 "RXT Picture" means the thermal output from the Imaging System which
contains a Guest image.
1.8 "Sales Booth" means a facility at the exit of each Designated Ride
from which RXT can sell photographs and other merchandise.
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<PAGE>
2. Capture and Sale of Images
2.1 RXT shall install Imaging Systems at each of the Designated
Attractions. The Imaging Systems will capture Guests' photographic images while
they enjoy the Designated Attraction, will digitally store such images, and will
display such images on video screens as the Guests exit the Designated
Attraction.
2.2 RXT Pictures and Other Merchandise will be available for purchase by
the Guests at Sales Booths.
2.3 LEGOLAND shall have the right in its sole discretion to approve or
disapprove all RXT Picture formats and all Other Merchandise. Samples shall be
provided by RXT to LEGOLAND upon request.
2.4 LEGOLAND and Polaroid will each provide appropriate logo to
incorporate into the RXT Picture frames or folders and Other Merchandise as
agreed by the parties.
2.5 Any inventory of RXT Pictures, frames, folders or Other Merchandise
shall be the property and sole responsibility of RXT.
3. Imaging Systems
3.1 Each Imaging System shall meet the specifications set out in
Exhibit A.
3.2 Hardware, software, licenses, backup equipment and related system
maintenance services and upgrades in connection with the Imaging Systems shall
be provided by RXT at no charge. RXT will provide on-site backup equipment as
required based on the frequency of repairs to eliminate the possibility of any
Imaging System being out of service. All equipment which is visible shall
conform to the prevailing design standards at the Park. All equipment, whether
or not visible, will conform to safety and housekeeping standards as established
by LEGOLAND.
3.3 RXT shall provide LEGOLAND with specifications of all ergonomic and
power requirements and any other infrastructure requirements necessary to enable
RXT to carry out its obligations hereunder, and LEGOLAND shall supply such
requirements or permit RXT access to install such requirements itself.
3.4 Imaging Systems must be left powered on at all times, 24 hours a day,
7 days a week, 365 days a year. LEGOLAND will permit all Imaging Systems to
remain powered on at all times. RXT shall instruct personnel to leave each
Imaging System in sleep mode at the end of each business day.
3.5 All media required for the Imaging Systems shall be purchased by RXT
exclusively from Polaroid at the prices set out in Exhibit B, with terms of 2%
30, net 45 days. As mutually agreed upon. See Exhibit B.
4. Sales Booths
4.1 LEGOLAND will provide at each Designated Ride a Sales Booth for RXT's
use, space in which to install one or more cameras and an agreed number of video
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displays, a telephone line and electrical power, heating and lighting as
required. All of the foregoing will be provided at LEGOLAND's expense, provided
that RXT will pay charges directly related to its use of the telephone.
4.2 RXT will pay all expenses incurred in the installation of the Imaging
Systems, including any special cabling, wiring, electrical power lines and
corresponding trunking/conduit above or below the ground for such cables, as
well as all expenses in connection with outfitting the Sales Booths as required
by LEGOLAND. RXT will provide any poles required to enable the mounting of a
camera and its enclosure, fittings and flash units.
4.3 RXT will be open for business in accordance with the provisions of
Exhibit C, Minimum Standards of Operation.
5. Sales Revenues
5.1 RXT will generate End of Day ("EOD") sales reports and such other
auditing and accounting information as may be agreed by the parties each
business day and shall provide copies of the same to LEGOLAND and Polaroid. In
addition, each Monday RXT shall submit a Weekly Gross Sales Report in the format
designated by LEGOLAND for the week ending the previous Sunday.
5.2 At the end of each business day RXT will deposit all receipts with
LEGOLAND and LEGOLAND will be responsible for all deposit and security
arrangements in connection with such receipts.
5.3 The parties will share the Gross Sales revenues as follows:
LEGOLAND 20%
RXT 70%
Polaroid 10%
5.4 LEGOLAND will remit the appropriate share of Gross Sales revenues to
RXT and Polaroid as set out in Section 5.3 by credit transfer to their
respective accounts every fourteen (14) days, or by other methods as agreed.
5.5 RXT shall preserve for at least one (1) year all original books and
records disclosing information regarding Gross Sales as LEGOLAND requires,
including without limitation cash register tapes, sales slips, sales checks, tax
reports, bank deposit records, sales journals and other supporting data. During
the term of this Agreement, RXT shall upon twenty-four (24) hours' notice from
LEGOLAND or Polaroid present such records at LEGOLAND's management office or to
Polaroid's representative for examination or audit. Upon termination or
expiration of this Agreement, RXT shall upon ten (10) days' notice from LEGOLAND
or Polaroid present such records at LEGOLAND's or Polaroid's business address as
specified herein for examination or audit. In either case, if such examination
or audit discloses a discrepancy of 3% or more, RXT will promptly pay the
requesting party the cost of the audit and the deficiency in fees, which
deficiency shall be payable to both LEGOLAND and Polaroid in any event.
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<PAGE>
6. Staffing
6.1 RXT will hire, train, supervise and pay all personnel required to
operate the Imaging Systems and Sales Booths. All LEGOLAND standards of
excellence for Park personnel shall be met by RXT's personnel. LEGOLAND shall
have the right to veto the employment of any potential RXT hire, or require the
termination of any RXT personnel, provided such veto or requirement is in
compliance with applicable law.
6.2 RXT will provide its personnel with technical, sales and supervisory
training. RXT personnel will also be required to attend LEGOLAND orientation and
training programs, and will be required to work towards Guest satisfaction and
to answer Guest inquiries to the same standard as Park personnel. RXT personnel
shall be required to comply with the LEGOLAND Employee Guidebook and the
Standards of Conduct set out in Exhibit D.
6.3 All RXT personnel must adhere to LEGOLAND costume and grooming
standards as in effect for Park personnel. LEGOLAND will provide all costumes
and uniforms at RXT's expense.
7. Special Events
7.1 RXT's appointment by Polaroid to provide Imaging Systems at the
Designated Rides is a non-exclusive appointment within the Park. Polaroid
retains right of first refusal on all photographic or other imaging services
within the Park, whether to provide the services directly or through a third
party approved by LEGOLAND.
7.2 No less than thirty (30) days before any new attraction opens for
which LEGOLAND requires photographic or other imaging services, or thirty (30)
days or such shorter time as is practicable in the case of special photographic
services for special events, LEGOLAND shall so notify Polaroid with a request
for quote on providing such services. Polaroid shall respond to such request for
quote within five (5) business days of receipt.
7.3 LEGOLAND shall have the right to require RXT to operate the Imaging
Services and Sales Booths at any special events which may occur outside of
normal Park hours of operation at no additional charge to LEGOLAND or Polaroid
provided that RXT has the opportunity to sell the RXT Pictures and Other
Merchandise on standard terms as set out in this Agreement.
8. Warranty
8.1 RXT warrants to LEGOLAND and Polaroid that the Imaging Systems will
be kept in good working order at all times, that downtime during hours when the
Park is open for business shall be no more than eight (8) hours per month, and
that Imaging Systems will at all times be operated in a safe and lawful manner.
8.2 RXT further warrants that all RXT Pictures, frames, folders and Other
Merchandise shall be of good quality and free of defects in materials or
workmanship. Any RXT Pictures, frames, folders or Other Merchandise which do not
comply with the
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<PAGE>
foregoing shall be replaced with items that do so comply. Any Guest who requests
a refund for defective RXT Pictures, frames, folders or Other Merchandise shall
be promptly issued such refund.
9. Limitation of Liability
NO PARTY TO THIS AGREEMENT SHALL BE LIABLE IN ANY EVENT FOR LOSS OF
PROFITS OR GOODWILL OR OTHER FINANCIAL LOSS OR FOR SPECIAL, INDIRECT,
INCIDENTAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE
AND EVEN IF ANOTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Indemnification
10.1 RXT shall indemnify and hold LEGOLAND and Polaroid harmless from and
against and defend any claim, suit or proceeding, and pay any settlement amounts
or damages arising out of any claim that the Imaging System or any other
products provided by RXT hereunder infringe upon any copyright, trade secret,
patent or other intellectual property right of a third party. RXT shall have no
obligations under this Section and shall not be liable for any claim of
infringement arising from: (i) modification made to its products by anyone other
than RXT, or (ii) use of its products outside the scope of this Agreement.
10.2 Each party to this Agreement shall indemnify and hold the other
harmless from and against, and defend any claim, suit or proceeding, and pay any
settlement amounts or damages, arising out of claims by third parties: (i) that
arise or result from a breach or failure by the indemnifying party to perform
its obligations under this Agreement in accordance with its terms and
conditions, or (ii) for death, personal injury or damage to personal, tangible
property resulting from the wrongful acts or negligence of the indemnifying
party's employees.
10.3 A party seeking indemnification under this Agreement shall (i)
promptly notify the indemnifying party in writing of the claim, suit or
proceeding for which indemnification is sought, (ii) permit the indemnifying
party to control such suit or proceeding, and reasonably cooperate with the
indemnifying party in the defense or settlement of the claim, suit or
proceeding, and (iii) have the right to proceed for its separate defense at its
own expense.
11. Intellectual Property
11.1 RXT owns and shall retain all intellectual property rights relating
to the Imaging Systems, including without limitation patent, copyright,
trademark and trade secret rights, provided however that LEGOLAND owns any and
all intellectual property rights in and to any characters, visual
representations, logos, slogans, trademarks, and promotional materials created
or provided by LEGOLAND or its agents for use in connection with the Imaging
Systems.
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<PAGE>
11.2 Neither LEGOLAND nor Polaroid agree hereby to accept RXT's trade
secrets. Prior to disclosing any trade secrets to LEGOLAND or Polaroid, RXT must
obtain their written consent.
12. Insurance
12.1 RXT shall maintain in effect insurance with the following
coverages:
12.1.1 Comprehensive or commercial general liability policy
including contractual liability and broad form property damage coverage,
affording protection on an occurrence basis for claims arising out of bodily
injury, death, and property damage, and having limits of not less than $500,000
for damage to property arising out of one occurrence, with a $2,000,000
aggregate limit of liability or $500,000 combined Single Limit per occurrence
and $2,000,000 Combined Single Limit, aggregate, and
12.1.2 Workers' Compensation Insurance as required by the laws of
the state of California and Employer's Liability insurance with a $100,000
limit.
12.2 RXT shall furnish to LEGOLAND certificates of insurance issued by
the company or companies providing such insurance, evidencing that such policies
are in effect and naming LEGOLAND as an additional insured thereunder and
providing that no such insurance may be cancelled without at least ten (10)
days' written notice to LEGOLAND.
12.3 LEGOLAND shall maintain in effect comprehensive or commercial
general liability insurance including contractual liability and broad form
property damage coverage, affording protection on an occurrence basis for claims
arising out of bodily injury, death, and property damage, and having limits of
not less than $500,000 for damage to property arising out of one occurrence,
with a $2,000,000 aggregate limit of liability or $500,000 combined Single Limit
per occurrence and $2,000,000 Combined Single Limit, aggregate.
13. Term and Termination
13.1 This Agreement shall become effective on the date that the
Sponsorship Agreement between LEGOLAND and Polaroid becomes effective, and shall
remain in effect for a term of three (3) years from the date of Opening.
Thereafter, this Agreement will automatically renew for an additional two (2)
year period unless any party gives written notice of non-renewal no less than
thirty (30) days prior to the end of the initial term.
13.2 This Agreement may be terminated by either LEGOLAND or Polaroid in
the event that RXT is in breach of its material obligations hereunder and such
breach continues despite written notice to both the party alleged to be in
breach and the other non-breaching party specifying the alleged breach in detail
and giving thirty (30) days for cure.
13.3 Upon expiration or earlier termination, RXT shall remove the Imaging
Systems and any other equipment machinery, trade fixtures, equipment or supplies
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<PAGE>
located in the Park which RXT owns, and repair any damage caused by such
removal. In the event that such removal and repair does not occur within five
(5) working days after such termination or expiration, LEGOLAND shall have the
right to effect such removal and repair and store such items, all at RXT's risk
and expense.
13.4 The following provisions shall survive termination or expiration of
this Agreement and remain in force according to their terms: Sections 5.5, 8.2,
9, 10, 11, 13.3, 14.1 and 15.
14. Compliance
14.1 RXT shall be responsible for obtaining and maintaining in force any
licenses, permits and the like required by any governmental or regulatory agency
or authority in order for RXT to carry out its obligations hereunder. If RXT is
deemed to be in violation of any applicable law, ordinance or code by reason of
RXT's activities or any modification made by RXT to the Park or equipment, RXT
shall immediately cure such violation at its own expense and pay any fines or
penalties attributable to such violation. If RXT fails to do so, LEGOLAND may in
its sole discretion (a) cure such violation and pay such fines or penalties at
RXT's risk and expense, or (b) terminate this Agreement without notice or
liability to RXT.
14.2 RXT shall not harm the Park, nor commit waste, nor create any
nuisance, nor make any use of the Park which is unlawful or offensive in the
sole determination of LEGOLAND, nor do any act tending to injure the reputation
of LEGOLAND. RXT shall abide by all rules and regulations established by
LEGOLAND.
14.3 RXT shall not make any alterations or additions nor make any holes
in the walls, partitions, ceilings or floors, nor permit the painting or placing
of exterior signs, placards or other advertising media, banners, pennants,
awnings, aerials, antennas or the like without on each occasion obtaining prior
written permission of LEGOLAND. RXT shall not suffer any mechanic's lien to be
filed against the Park by reason of any work, labor, services, or materials
performed at or furnished to the Park or to RXT.
15. Non-Solicitation
During the term of this Agreement and for a period of six (6) months
after termination or expiration hereof, none of the parties hereto shall,
directly or indirectly, interfere with the business of any other party hereto in
any manner, including, without limitation, soliciting or inducing any employee
or independent contractor to terminate or breach an employment, contractual or
other relationship with such other party.
RXT agrees to the policy stating that RJXT may not hire a LEGOLAND
employee far a period of sixty (60) days from their employment termination date
with LEGOLAND. Exceptions to this policy may be made with the approval of the
Merchandise Manager and the appropriate director.
RXT agrees to a condition of employment, stating those employees of
LEGOLAND and RXT cannot be employed concurrently with LEGOLAND and RXT.
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<PAGE>
16. General
16.1 This Agreement shall not be assigned by any party hereto without the
prior written consent of the others.
16.2 Notices shall be given in writing to the addresses first set out
above or such other address as either party may designate in writing from time
to time. All notices may be sent (i) by recognized overnight courier or (ii) by
fax or email and confirmed by first class mail. All notices shall be deemed to
have been given and received on the earlier of actual delivery or five (5) days
from the date of postmark.
16.3 This Agreement constitutes the entire understanding of the parties
with respect to the subject matter hereof, may be modified only in a writing
signed by both parties, and shall supersede any and all communications,
negotiations, correspondence, course of dealings and other agreements between
the parties regarding such subject matter. The terms and conditions of this
Agreement shall prevail notwithstanding any conflict with the terms and
conditions of any purchase order, acknowledgment, invoice or other instrument
submitted by any party.
16.4 Any waiver of a default in performance hereunder shall be deemed a
waiver of the particular instance only and shall not be deemed consent to
continuing default. If any provision of this Agreement is found to be invalid,
illegal or unenforceable, a modified provision shall be substituted which
carries out as nearly as possible the original intent of the parties and the
remaining provisions shall in no way be affected thereby.
16.5 The parties hereto are independent contractors and shall not be
deemed to be partners, joint venturers or agents of the other. Neither party
shall have the right, power or authority to bind the other in any way.
16.6 This Agreement shall be governed by the laws of the State of
California, excluding its choice of law rules. Any and all disputes arising out
of or related to this Agreement, if not resolved by good faith negotiation by
the parties hereto, shall be referred to the state or federal courts of
California, where jurisdiction and venue shall be deemed proper and exclusive.
16.7 The remedies set out in this Agreement shall be the sole and
exclusive remedies of the parties for any actions arising in connection with
this Agreement and each party hereby waives any other remedy, whether in law or
at equity.
16.8 Section headings are for convenience only.
List of Exhibits
Exhibit A Imaging Systems Specifications
---------
Exhibit B Media Pricing
---------
Exhibit C Minimum Standards of Operation
---------
Exhibit D Standards of Conduct
---------
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives.
POLAROID CORPORATION LEGOLAND CALIFORNIA
By: By:
Name: Name:
Title: Title:
RX TECHNOLOGY, INC.
By: /s/ DONALD REX GAY
Name: Donald Rex Gay
Title: President
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<PAGE>
EXHIBIT A
Imaging System Specifications
RX Technology
General System Description
Image System $ 146,245.00
R-EPOS 8,289.00
Monitors 2,211.00
Printers 7,990.00
Camera System 20,281.00
Flash Unit and Controller 32,995.00
Freight 1,200.00
Total Basic System $ 219,211.00
Specific configurations for each of the three systems to be furnished will vary.
Systems will require multiple monitors, primers, flash units and other
incidental equipment. Specifications subject to change without notice.
Warranties and Licenses apply as outlined in warranty/license documents. The use
of RX Technology, Inc. hardware and software does not imply the sale of any
rights to the technology, rights to reproduce the hardware or software, rights
to market or sell the hardware or software, without the prior written consent
and approval RX Technology, Inc. specifically and exclusively.
Systems to be installed in conjunction with the Dragon Roller Coaster, The
Joust, and The Flume Ride at LEGOLAND.
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EXHIBIT B
Media Pricing
RX Technology will agree to purchase all media required for the Imaging Systems
at LEGOLAND from Polaroid subject to the following conditions:
1. Polaroid will be able to finish all required media in a timely manner. If
Polaroid is not able to meet requested and agreed upon delivery
schedules, RX Technology may purchase media from a secondary source to
meet sales requirements.
2. Polaroid will supply media at prices equal to or below the price that RX
Technology currently receives under existing purchasing agreements and
contracts.
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EXHIBIT C
Minimum Standards of Operation
RXT will be open for business, fully staffed, each day that the Park is
open. Absences in excess of 1/2 hour in length on any day on which the Park is
open are inexcusable unless approved in advance in writing by the Merchandise
Specialist or the Retail Director. Every documented unexcused absence will
result in a $100.00 fine payable by RXT to LEGOLAND.
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EXHIBIT D
Standards of Conduct
The following represent minimum standards of employee conduct while
working on-site in LEGOLAND.
o All RXT employees working with Guests must wear the approved LEGOLAND
costume.
o ALL RXT employees working with Guests must comply with all other
published LEGOLAND grooming guidelines.
o No eating, drinking or chewing gum is permitted in view of Guests.
o No sitting down is permitted unless working with a Guest.
o All areas in RXT's control must be returned to an orderly, clean, "as
before opening" state of operation (all trash and empty cartons
removed) at the end of each day.
o Current days and hours of operation must be posted at closing every
day.
Every documented violation of any of the above will result in a $25.00
fine payable by RXT to LEGOLAND. In addition, the following will also
result in a $25.00 fine:
o Three (3) documented violations per month of Section 5.1 of the
Services Agreement.
o Any repeat occurrences of safety violations, as noted during scheduled
safety walk through.
The Merchandising Manager must approve any exceptions in writing.
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Addendum 1
Services Agreement
Services Agreement
This Services Agreement is made and entered into effective the 10th of
Dec. 1998, by and among Polaroid Corporation, a Delaware corporation with a
place of business at 784 Memorial Drive, Cambridge, MA 02139 ("Polaroid"),
LEGOLAND California, a California corporation with a place of business at One
LEGO Drive, Carlsbad, CA 92008 ("LEGOLAND") and RX Techno1ogy, Inc., a Nevada
corporation with a place of business at Manderville, LA ("RXT")
WHEREAS, Polaroid has paid a sponsorship fee to LEGOLAND, which entitles
Polaroid to provide all photographic services in the Park, or subcontract the
services to concession operators upon mutual agreement with LEGOLAND; and
WHEREAS, Polaroid wishes to engage RXT to provide certain photographic
services and RXT is willing to accept such engagement; and
WHEREAS, LEGOLAND is willing to accept RXT's engagement to provide the
goods and services as hereinafter described.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows.
1. Definitions
1.1 "Designated Attractions" means the Dragon Coaster and Joust
attractions in the Park.
1.2 "Gross Sales" means the price of all goods, wares and merchandise
sold, and the charges for all services performed by RXT in the Park, for cash,
credit or otherwise without reserve or deduction for uncollected amounts,
including without limitation (i) sales and services (a) where orders originate
in at or from the Park, regardless of whether delivery or performance takes
place in the Park, and (b) where orders are made by mail, telephone, fax or
email and are received or fulfilled at the Park, and (ii) deposits not refunded
to customers. Excluded from Gross Sales shall be (A) refunds to customers on
transactions otherwise included in Gross Sales, and (B) sales, excise or similar
tax imposed by governmental authority and collected from customers and paid out
as required by law. No other tax shall be deducted from Gross Sales.
1.3 "Guest" means a member of the public in the Park.
1.4 "Imaging System" means RXT's High Speed Ride Imaging System.
1.5 "Other Merchandise" means merchandise such as mugs, t-shirts and the
like which is imprinted with Guests' images.
1.6 "Park" means the LEGOLAND California park.
1.7 "RXT Picture" means the thermal output from the Imaging System which
contains a Guest image.
1.8 "Sales Booth" means a facility at the exit of each Designated Ride
from which RXT can sell photographs and other merchandise.
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<PAGE>
2. Capture and Sale of Images
2.1 RXT shall install Imaging Systems at each of the Designated
Attractions. The Imaging Systems will capture Guests' photographic images while
they enjoy the Designated Attraction, will digitally store such images, and will
display such images on video screens as the Guests exit the Designated
Attraction.
2.2 RXT Pictures and Other Merchandise will be available for purchase by
the Guests at Sales Booths.
2.3 LEGOLAND shall have the right in its sole discretion to approve or
disapprove all RXT Picture formats and all Other Merchandise. Samples shall be
provided by RXT to LEGOLAND upon request.
2.4 LEGOLAND and Polaroid will each provide appropriate logo to
incorporate into the RXT Picture frames or folders and Other Merchandise as
agreed by the parties.
2.5 Any inventory of RXT Pictures, frames, folders or Other Merchandise
shall be the property and sole responsibility of RXT.
3. Imaging Systems
3.1 Each Imaging System shall meet the specifications set out in
Exhibit A.
3.2 Hardware, software, licenses, backup equipment and related system
maintenance services and upgrades in connection with the Imaging Systems shall
be provided by R.XT at no charge. RXT will provide on-site backup equipment as
required based on the frequency of repairs to eliminate the possibility of any
Imaging System being out of service. All equipment which is visible shall
conform to the prevailing design standards at the Park. All equipment, whether
or not visible, will conform to safety and housekeeping standards as established
by LEGOLAND.
3.3 RXT shall provide LEGOLAND with specifications of all ergonomic and
power requirements and any other infrastructure requirements necessary to enable
RXT to carry out its obligations hereunder, and LEGOLAND shall supply such
requirements or permit RXT access to install such requirements itself.
3.4 Imaging Systems must be left powered on at all times, 24 hours a day,
7 days a week, 365 days a year. LEGOLAND will permit all Imaging Systems to
remain powered on at all times. RXT shall instruct personnel to leave each
Imaging System in sleep mode at the end of each business day.
3.5 All media required for the Imaging Systems shall be purchased by RXT
exclusively from Polaroid at the prices set out in Exhibit B, with terms of 2%
30, net 45 days, as mutually agreed upon. See Exhibit B.
4. Sales Booths
4.1 LEGOLAND will provide at each Designated Ride a Sales Booth for RXT's
use, space in which to install one or more cameras and an agreed number of video
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<PAGE>
displays, a telephone line and electrical power, heating and lighting as
required. All of the foregoing will be provided at LEGOLAND's expense, provided
that RXT will pay charges directly related to its use of the telephone.
4.2 RXT will pay all expenses incurred in the installation of the Imaging
Systems, including any special cabling, wiring, electrical power lines and
corresponding trunking/conduit above or below the ground for such cables, as
well as all expenses in connection with outfitting the Sales Booths as required
by LEGOLAND. RXT will provide any poles required to enable the mounting of a
camera and its enclosure, fittings and flash units.
4.3 RXT will be open for business in accordance with the provisions of
Exhibit C, Minimum Standards of Operation.
5. Sales Revenues
5.1 RXT will generate End of Day ("EOD") sales reports and such other
auditing and accounting information as may be agreed by the parties each
business day and shall provide copies of the same to LEGOLAND and Polaroid. In
addition, each Monday RXT shall submit a Weekly Gross Sales Report in the format
designated by LEGOLAND for the week ending the previous Sunday.
5.2 At the end of each business day RXT will deposit all receipts with
LEGOLAND and LEGOLAND will be responsible for all deposit and security
arrangements in connection with such receipts.
5.3 The parties will share the Gross Sales revenues as follows:
LEGOLAND 20%
RXT 70%
Polaroid 10%
5.4 LEGOLAND will remit the appropriate share of Gross Sales revenues to
RXT and Polaroid as set out in Section 5.3 by credit transfer to their
respective accounts every fourteen (14) days, or by other methods as agreed.
5.5 RXT shall preserve for at least one (1) year all original books and
records disclosing information regarding Gross Sales as LEGOLAND requires,
including without limitation cash register tapes, sales slips, sales checks, tax
reports, bank deposit records, sales journals and other supporting data. During
the term of this Agreement, RXT shall upon twenty-four (24) hours' notice from
LEGOLAND or Polaroid present such records at LEGOLAND's management office or to
Polaroid's representative for examination or audit. Upon termination or
expiration of this Agreement, RXT shall upon ten (10) days' notice from LEGOLAND
or Polaroid present such records at LEGOLAND's or Polaroid's business address as
specified herein for examination or audit. In either case, if such examination
or audit discloses a discrepancy of 3% or more, RXT will promptly pay the
requesting party the cost of the audit and the deficiency in fees, which
deficiency shall be payable to both LEGOLAND and Polaroid in any event.
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6. Staffing
6.1 RXT will hire, train, supervise and pay all personnel required to
operate the Imaging Systems and Sales Booths. All LEGOLAND standards of
excellence for Park personnel shall be met by RXT's personnel. LEGOLAND shall
have the right to veto the employment of any potential RXT hire, or require the
termination of any RXT personnel, provided such veto or requirement is in
compliance with applicable law.
6.2 RXT will provide its personnel with technical, sales and supervisory
training. RXT personnel will also be required to attend LEGOLAND orientation and
training programs, and will be required to work towards Guest satisfaction and
to answer Guest inquiries to the same standard as Park personnel. RXT personnel
shall be required to comply with the LEGOLAND Employee Guidebook and the
Standards of Conduct set out in Exhibit D.
6.3 All RXT personnel must adhere to LEGOLAND costume and grooming
standards as in effect for Park personnel. LEGOLAND will provide all costumes
and uniforms at RXT's expense.
7. Special Events
7.1 RXT's appointment by Polaroid to provide Imaging Systems at the
Designated Rides is a non-exclusive appointment within the Park. Polaroid
retains right of first refusal on all photographic or other imaging services
within the Park, whether to provide the services directly or through a third
party approved by LEGOLAND.
7.2 No less than thirty (30) days before any new attraction opens for
which LEGOLAND requires photographic or other imaging services, or thirty (30)
days or such shorter time as is practicable in the case of special photographic
services for special events, LEGOLAND shall so notify Polaroid with a request
for quote on providing such services. Polaroid shall respond to such request for
quote within five (5) business days of receipt.
7.3 LEGOLAND shall have the right to require RXT to operate the Imaging
Services and Sales Booths at any special events which may occur outside of
normal Park hours of operation at no additional charge to LEGOLAND or Polaroid
provided that RXT has the opportunity to sell the RXT Pictures and Other
Merchandise on standard terms as set out in this Agreement.
8. Warranty
8.1 RXT warrants to LEGOLAND and Polaroid that the Imaging Systems will
be kept in good working order at all times, that downtime during hours when the
Park is open for business shall be no more than eight (8) hours per month, and
that Imaging 2 Systems will at all times be operated in a safe and lawful
manner.
8.2 RXT further warrants that all RXT Pictures, frames, folders and Other
Merchandise shall be of good quality and free of defects in materials or
workmanship. Any RXT Pictures, frames, folders or Other Merchandise which do not
comply with the
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<PAGE>
foregoing shall be replaced with items that do so comply. Any Guest who requests
a refund for defective RXT Pictures, frames, folders or Other Merchandise shall
be promptly issued such refund.
9. Limitation of Liability
NO PARTY TO THIS AGREEMENT SHALL BE LIABLE IN ANY EVENT FOR LOSS OF
PROFITS OR GOODWILL OR OTHER FINANCIAL LOSS OR FOR SPECIAL, INDIRECT,
INCIDENTAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE
AND EVEN IF ANOTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Indemnification
10.1 RXT shall indemnify and hold LEGOLAND and Polaroid harmless from and
against and defend any claim, suit or proceeding, and pay any settlement amounts
or damages arising out of any claim that the Imaging System or any other
products provided by RXT hereunder infringe upon any copyright, trade secret,
patent or other intellectual property right of a third party. RXT shall have no
obligations under this Section and shall not be liable for any claim of
infringement arising from: (i) modification made to its products by anyone other
than RXT, or (ii) use of its products outside the scope of this Agreement.
10.2 Each party to this Agreement shall indemnify and hold the other
harmless from and against, and defend any claim, suit or proceeding, and pay any
settlement amounts or damages, arising out of claims by third parties: (i) that
arise or result from a breach or failure by the indemnifying party to perform
its obligations under this Agreement in accordance with its terms and
conditions, or (ii) for death, personal injury or damage to personal, tangible
property resulting from the wrongful acts or negligence of the indemnifying
party's employees.
10.3 A party seeking indemnification under this Agreement shall (i)
promptly notify the indemnifying party in writing of the claim, suit or
proceeding for which indemnification is sought, (ii) permit the indemnifying
party to control such suit or proceeding, and reasonably cooperate with the
indemnifying party in the defense or settlement of the claim, suit or
proceeding, and (iii) have the right to proceed for its separate defense at its
own expense.
11. Intellectual Property
11.1 RXT owns and shall retain all intellectual property rights relating
to the Imaging Systems, including without limitation patent, copyright,
trademark and trade secret rights, provided however that LEGOLAND owns any and
all intellectual property rights in and to any characters, visual
representations, logos, slogans, trademarks, and promotional materials created
or provided by LEGOLAND or its agents for use in connection with the Imaging
Systems.
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11.2 Neither LEGOLAND nor Polaroid agree hereby to accept RXT's trade
secrets. Prior to disclosing any trade secrets to LEGOLAND or Polaroid, RXT must
obtain their written consent.
12. Insurance
12.1 RXT shall maintain in effect insurance with the following
coverages:
12.1.1 Comprehensive or commercial general liability policy
including contractual liability and broad form property damage coverage,
affording protection on an occurrence basis for claims arising out of bodily
injury, death, and property damage, and having limits of not less than $500,000
for damage to property arising out of one occurrence, with a $2,000,000
aggregate limit of liability or $500,000 combined Single Limit per occurrence
and $2,000,000 Combined Single Limit, aggregate, and
12.1.2 Workers' Compensation Insurance as required by the laws of
the state of California and Employer's Liability insurance with a $100,000
limit.
12.2 RXT shall furnish to LEGOLAND certificates of insurance issued by
the company or companies providing such insurance, evidencing that such policies
are in effect and naming LEGOLAND as an additional insured thereunder and
providing that no such insurance may be cancelled without at least ten (10)
days' written notice to LEGOLAND.
12.3 LEGOLAND shall maintain in effect comprehensive or commercial
general liability insurance including contractual liability and broad form
property damage coverage, affording protection on an occurrence basis for claims
arising out of bodily injury, death, and property damage, and having limits of
not less than $500,000 for damage to property arising out of one occurrence,
with a $2,000,000 aggregate limit of liability or $500,000 combined Single Limit
per occurrence and $2,000,000 Combined Single Limit, aggregate.
13. Term and Termination
13.1 This Agreement shall become effective on the date that the
Sponsorship Agreement between LEGOLAND and Polaroid becomes effective, and shall
remain in effect for a term of three (3) years from the date of Opening.
Thereafter, this Agreement will automatically renew for an additional two (2)
year period unless any party gives written notice of non-renewal no less than
thirty (30) days prior to the end of the initial term.
13.2 This Agreement may be terminated by either LEGOLAND or Polaroid in
the event that RXT is in breach of its material obligations hereunder and such
breach continues despite written notice to both the party alleged to be in
breach and the other non-breaching party specifying the alleged breach in detail
and giving thirty (30) days for cure.
13.3 Upon expiration or earlier termination, RXT shall remove the Imaging
Systems and any other equipment machinery, trade fixtures, equipment or supplies
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<PAGE>
located in the Park which RXT owns, and repair any damage caused by such
removal. In the event that such removal and repair does not occur within five
(5) working days after such termination or expiration, LEGOLAND shall have the
right to effect such removal and repair and store such items, all at RXT's risk
and expense.
13.4 The following provisions shall survive termination or expiration of
this Agreement and remain in force according to their terms: Sections 5.5, 8.2,
9, 10, 11, 13.3, 14.1 and 15.
14. Compliance
14.1 RXT shall be responsible for obtaining and maintaining in force any
licenses, permits and the like required by any governmental or regulatory agency
or authority in order for RXT to carry out its obligations hereunder. If RXT is
deemed to be in violation of any applicable law, ordinance or code by reason of
RXT's activities or any modification made by RXT to the Park or equipment, RXT
shall immediately cure such violation at its own expense and pay any fines or
penalties attributable to such violation. If RXT fails to do so, LEGOLAND may in
its sole discretion (a) cure such violation and pay such fines or penalties at
RXT's risk and expense, or (b) terminate this Agreement without notice or
liability to RXT.
14.2 RXT shall not harm the Park, nor commit waste, nor create any
nuisance, nor make any use of the Park which is unlawful or offensive in the
sole determination of LEGOLAND, nor do any act tending to injure the reputation
of LEGOLAND. RXT shall abide by all rules and regulations established by
LEGOLAND.
14.3 RXT shall not make any alterations or additions nor make any holes
in the walls, partitions, ceilings or floors, nor permit the painting or placing
of exterior signs, placards or other advertising media, banners, pennants,
awnings, aerials, antennas or the like without on each occasion obtaining prior
written permission of LEGOLAND. RXT shall not suffer any mechanic's lien to be
filed against the Park by reason of any work, labor, services, or materials
performed at or furnished to the Park or to RXT.
15. Non-Solicitation
During the term of this Agreement and for a period of six (6) months
after termination or expiration hereof, none of the parties hereto shall,
directly or indirectly, interfere with the business of any other party hereto in
any manner, including, without limitation, soliciting or inducing any employee
or independent contractor to terminate or breach an employment, contractual or
other relationship with such other party.
RXT agrees to the policy stating that RJXT may not hire a LEGOLAND
employee far a period of sixty (60) days from their employment termination date
with LEGOLAND. Exceptions to this policy may be made with the approval of the
Merchandise Manager and the appropriate director.
RXT agrees to a condition of employment, stating those employees of
LEGOLAND and RXT cannot be employed concurrently with LEGOLAND and RXT.
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<PAGE>
16. General
16.1 This Agreement shall not be assigned by any party hereto without the
prior written consent of the others.
16.2 Notices shall be given in writing to the addresses first set out
above or such other address as either party may designate in writing from time
to time. All notices may be sent (i) by recognized overnight courier or (ii) by
fax or email and confirmed by first class mail. All notices shall be deemed to
have been given and received on the earlier of actual delivery or five (5) days
from the date of postmark.
16.3 This Agreement constitutes the entire understanding of the parties
with respect to the subject matter hereof, may be modified only in a writing
signed by both parties, and shall supersede any and all communications,
negotiations, correspondence, course of dealings and other agreements between
the parties regarding such subject matter. The terms and conditions of this
Agreement shall prevail notwithstanding any conflict with the terms and
conditions of any purchase order, acknowledgment, invoice or other instrument
submitted by any party.
16.4 Any waiver of a default in performance hereunder shall be deemed a
waiver of the particular instance only and shall not be deemed consent to
continuing default. If any provision of this Agreement is found to be invalid,
illegal or unenforceable, a modified provision shall be substituted which
carries out as nearly as possible the original intent of the parties and the
remaining provisions shall in no way be affected thereby.
16.5 The parties hereto are independent contractors and shall not be
deemed to be partners, joint venturers or agents of the other. Neither party
shall have the right, power or authority to bind the other in any way.
16.6 This Agreement shall be governed by the laws of the State of
California, excluding its choice of law rules. Any and all disputes arising out
of or related to this Agreement, if not resolved by good faith negotiation by
the parties hereto, shall be referred to the state or federal courts of
California, where jurisdiction and venue shall be deemed proper and exclusive.
16.7 The remedies set out in this Agreement shall be the sole and
exclusive remedies of the parties for any actions arising in connection with
this Agreement and each party hereby waives any other remedy, whether in law or
at equity.
16.8 Section headings are for convenience only.
List of Exhibits
Exhibit A Imaging Systems Specifications
---------
Exhibit B Media Pricing
---------
Exhibit C Minimum Standards of Operation
---------
Exhibit D Standards of Conduct
---------
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives.
POLAROID CORPORATION LEGOLAND CALIFORNIA
By: By:
Name: Name:
Title: Title:
RX TECHNOLOGY, INC.
By: /s/ DONALD REX GAY
Name: Donald Rex Gay
Title: President
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<PAGE>
EXHIBIT A
Imaging System Specifications
RX Technology
General System Description
Image System $ 146,245.00
R-EPOS 8,289.00
Monitors 2,211.00
Printers 7,990.00
Camera System 20,281.00
Flash Unit and Controller 32,995.00
Freight 1,200.00
Total Basic System $ 219,211.00
Specific configurations for each of the three systems to be furnished will vary.
Systems will require multiple monitors, primers, flash units and other
incidental equipment Specifications subject to change without notice. Warranties
and Licenses apply as outlined in warranty/license documents. The use of RX
Technology, Inc. hardware and software does not imply the sale & any rights to
the technology, rights to reproduce the hardware or software, rights to market
or sell the hardware or software, without the prior written consent and approval
RX Technology, Inc. specifically and exclusively.
Systems to be installed in conjunction with the Dragon Roller Coaster, The
Joust, and The Flume Ride at LEGOLAND.
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<PAGE>
EXHIBIT B
Media Pricing
RX Technology will agree to purchase all media required for the Imaging Systems
at LEGOLAND from Polaroid subject to the following conditions:
1. Polaroid will be able to finish all required media in a timely manner. If
Polaroid is not able to meet requested and agreed upon delivery
schedules, RX Technology may purchase media from a secondary source to
meet sales requirements.
2. Polaroid will supply media at prices equal to or below the price that RX
Technology currently receives under existing purchasing agreements and
contracts.
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<PAGE>
EXHIBIT C
Minimum Standards of Operation
RXT will be open for business, fully staffed, each day that the Park is
open. Absences in excess of 1/2 hour in length on any day on which the Park is
open are inexcusable unless approved in advance in writing by the Merchandise
Specialist or the Retail Director. Every documented unexcused absence will
result in a $100.00 fine payable by RXT to LEGOLAND.
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<PAGE>
EXHIBIT D
Standards of Conduct
The following represent minimum standards of employee conduct while
working on-site in LEGOLAND.
o All RXT employees working with Guests must wear the approved LEGOLAND
costume.
o ALL RXT employees working with Guests must comply with all other
published LEGOLAND grooming guidelines.
o No eating, drinking or chewing gum is permitted in view of Guests.
o No sitting down is permitted unless working with a Guest.
o All areas in RXT's control must be returned to an orderly, clean, "as
before opening" state of operation (all trash and empty cartons
removed) at the end of each day.
o Current days and hours of operation must be posted at closing every
day.
Every documented violation of any of the above will result in a $25.00
fine payable by RXT to LEGOLAND. In addition, the following will also
result in a $25.00 fine:
o Three (3) documented violations per month of Section 5.1 of the
Services Agreement.
o Any repeat occurrences of safety violations, as noted during scheduled
safety walk through.
The Merchandising Manager must approve any exceptions in writing.
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<PAGE>
- --------------------------------------------------------------------------------
PROPERTY DAMAGE $__
- --------------------------------------------------------------------------------
CARE CUSTODY AND CONTROL (NOTE EACH OCCURRENCE
4) _AGGREGATE $___
(IF APPLICABLE) __DEDUCTIBLE $___
|_|ALL RISK
|_|LEGAL LIABILITY FORM
- --------------------------------------------------------------------------------
EXCESS LIABILITY (NOTE 5) EACH OCCURRENCE
|_|UMBRELLA _AGGREGATE $___
|_|OTHER THAN UMBRELLA FORM __DEDUCTIBLE $___
- --------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/RESTRICTIONS
- --------------------------------------------------------------------------------
PRODUCER/AGENT INSURED
- --------------------------------------------------------------------------------
I DO HEREBY CERTIFY THAT THE INSURERS DATE ISSUED__________________
LISTED HEREIN ARE AUTHORIZED TO TRANSACT
BUSINESS IN AND FOR THE STATE OF _____ REVERSE SIDE MUST BE COMPLETED
AND CARRY A.M.BEST RATINGS OF __________ (OVER)
AUTHORIZED REPRESENTATIVE
_________________________
- --------------------------------------------------------------------------------
POLICIES LISTED ON REVERSE SIDE INCLUDE COVERAGE FOR: CHECK ONE
YES NO
NOTE (1) WORKERS COMPENSATION AND EMPLOYER'S LIABILITY
(A) VOLUNTARY COMPENSATION ENDORSEMENT? |_| |_|
(B) DOES POLICY INCLUDE "WAIVER OF SUBROGATION ENDORSEMENT" |_| |_|
AS REQUIRED BY CONTRACT WITH SIX FLAGS?
(C) ALTERNATE EMPLOYER ENDORSEMENT IN FAVOR OF SIX FLAGS? |_| |_|
(D) COVERAGE IS AFFORDED IN THE STATES OF: |_| |_|
NOTE (2) COMPREHENSIVE GENERAL LIABILITY
(A) COVERAGE WRITTEN ON A COMPREHENSIVE FORM? |_| |_|
(B) PRODUCTS OR COMPLETED OPERATIONS COVERAGES INCLUDED? |_| |_|
(C) IS POLLUTION COVERAGE INCLUDED? |_| |_|
(D) CONTRACTUAL LIABILITY COVERING HOLD HARMLESS AGREEMENT |_| |_|
/s/DRG Licensee initials
lessee.01D
<PAGE>
IN CONTRACT WITH SIX FLAGS?
(E) WAIVER OF SUBROGATION ENDORSEMENT AGAINST SIX FLAGS? |_| |_|
(F) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? |_| |_|
(G) HAVE THERE EVER BEEN ANY PROFESSIONAL LIABILITY ACTIONS |_| |_|
AGAINST THE INSURED? IF YES, PLEASE EXPLAIN. ___________
________________________________________________________
________________________________________________________
________________________________________________________
HAVE THERE BEEN ANY SETTLEMENTS? IF YES, PLEASE EXPLAIN. |_| |_|
________________________________________________________
________________________________________________________
________________________________________________________
HAVE THERE BEEN ANY .JUDGEMENTS? IF YES, PLEASE EXPLAIN. |_| |_|
________________________________________________________
________________________________________________________
________________________________________________________
NOTE (3) AUTO LIABILITY
(A) ALL OWNED, HIRED AND NON-OWNED VEHICLES? |_| |_|
(B) WAIVER OF SUBROGATION AGAINST SIX FLAGS? |_| |_|
(C) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? |_| |_|
NOTE (4) CARE, CUSTODY AND CONTROL
(A) IS COVERAGE INCLUDED FOR DAMAGES TO SIX FLAGS PROPERTY
WHILE BEING RAISED, LIFTED OR LOWERED WHILE USING
CRANE, BOOMS OR HOISTS? |_| |_|
NOTE (5) UMBRELLA FORM
(A) IS COVERAGE EXCESS OVER PRIMARY COMMERCIAL LIABILITY
AND EMPLOYERS LIABILITY? |_| |_|
(B) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? |_| |_|
(C) WAIVER OF SUBROGATION AGAINST SIX FLAGS? |_| |_|
/s/ DRG Licensee initials
lessee.01D
<PAGE>
INSERT 1
1. TEXAS FLAGS, LTD., a Texas limited partnership, of which Six Flags Over
Texas, Inc., a Delaware corporation, is the general partner, having offices at
2201 Road to Six Flags, Arlington, TX 76010.
2. SIX FLAGS OVER GEORGIA, LTD., a Georgia limited partnership, of which Six
Flags Over Georgia, Inc., a Delaware corporation, is the general partner, having
offices at 7561 Six Flags Parkway, Austell, GA 30001.
3. SIX FLAGS ST. LOUIS, f/k/a SIX FLAGS OVER MID-AMERICA, a division of Six
Flags Theme Parks Inc., a Delaware corporation, having offices at P.O. Box 60,
Eureka, MO 63025.
4. SIX FLAGS ASTROWORLD, a division of Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 9001 Kirby Drive, Houston, TX 77054.
5. SIX FLAGS WATERWORLD, d/b/a Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 9001 Kirby Drive, Houston, TX 77054.
6. SIX FLAGS GREAT ADVENTURE, a division of Six Flags Theme Parks Inc., a
Delaware corporation, having offices at Route 537, Jackson, NJ 08527.
7. SIX FLAGS MAGIC MOUNTAIN, a division of Six Flags Theme Parks Inc., a
Delaware corporation, having offices at 2101 Magic Mountain Parkway, Valencia,
CA 91355.
8. SIX FLAGS HURRICANE HARBOR, d/b/a Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 2101 Magic Mountain Parkway, Valencia, CA 91355.
9. SIX FLAGS GREAT AMERICA, a division of Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 542 North Route 21, Gurnee, IL 60031.
10. SIX FLAGS HURRICANE HARBOR, d/b/a Six Flags Theme Parks Inc., a Delaware
Corporation, having offices at 1800 E. Lamar, Arlington, TX 76006.
11. SAN ANTONIO THEME PARK, L.P., a Delaware limited partnership, of which Six
Flags San Antonio, L.P., a Delaware limited partnership, is the general partner,
having offices at 17000 IH 10 West, San Antonio, TX 7869-0290.
12. SIX FLAGS THEME PARKS INC., a Delaware corporation, having offices at 400
Interpace Parkway, Building C, Third Floor, Parsippany, NJ 07054-1191.
lessee.01D
<PAGE>
FIRST AMENDMENT TO SERVICES AGREEMENT
This amendment (the "Amendment") is entered into as of this 30th day of
March 1999, by and among POLAROID CORPORATION ("Polaroid"), a Delaware
Corporation, located at 784 Memorial Drive, Cambridge, MA 02139, LEGOLAND
CALIFORNIA ("Legoland"), a California corporation with an amusement park (the
"Park") located at One Lego Drive, Carlsbad, CA 92008 and RX TECHNOLOGY ("RXT"),
a Nevada corporation located at 2264 7th Street. Manderville, LA 70471.
WITNESSETH
WHEREAS, RXT entered into a Services Agreement (the "Agreement") with
Polaroid and Legoland, dated as of December 10, 1998, in connection with RXT
providing certain photographic services (the "Services") as the Park; and
WHEREAS, KBK Financial, Inc. ("KBK"), a Delaware corporation, located at
301 Commerce Street, 2200 City Center II, Fort Worth, Texas 76102, has loaned
funds to RXT which is secured by, among other things, the Imaging System (as
defined in the Agreement) and other equipment (collectively, the "Equipment")
used by RXT in providing the Services (KBK's loan to RXT is hereinafter called
the "Loan"); and
WHEREAS, the parties hereto desire to amend the Agreement to provide KBK
with certain rights in the Imaging Systems and other Equipment in the event RXT
defaults on the Loan; and
NOW, THEREFORE in consideration of the foregoing premises and the mutual
covenants contained therein, the parties agree as follows.
1. An additional Subsection 5-6 shall be added to the Agreement and shall
read:
5.6 In the event RXT defaults on the Loan Documents (as defined below)
prior to the expiration or other termination of the Agreement, and KBK
(as defined below) promptly notifies LEGOLAND of this fact, LEGOLAND
shall thereafter place the share of Gross Sales that is owed and owing
to RXT pursuant to Section 5 of the Agreement in an escrow fund
pending either (I) final determination by KBK and RXT as to what
should b done with such funds, or (ii) receipt of an appropriate court
order directing Legoland on how to distribute RXT's share of the Gross
Sales.
2. Subsection 13.3 in to Agreement is hereby amended to add the following
language at the end:
Notwhithstanding anything to the contrary herein, upon the
occurence of an event of default under the documents (collectively ,
the "Loan Documents") evidencing, governing and securing certain loan
or loans made by KBK Financial. Inc. (`KBK') to RXT which is secured
by, among other things, the Imaging
<PAGE>
System and other equipment used by RXT In providing its services
hereunder (collectively, the "Equipment"), and KBK promptly notifies
LEGOLAND of such default, at the expiration or prior termination of
the Agreement, KBK shall be entitled to promptly remove the Equipment
from the Park, and KBK shall quit and surrender the Sales Booth(s) in
the Park in good condition, reasonable wear and tear excepted. Unless
LEGOLAND and KBK otherwise agree if KBK fails to remove the Equipment
from the Park within five(5) days after KBK receives written notice of
the termination of this Agreement, then KBK shall be deemed to have
abandoned such property and title to the same shall at that time vest
in LEGOLAND. Any costs and expenses incurred by LEGOLAND in removing
such abandoned property (including the reasonable value of the
services rendered by park employees in connection therewith) shall be
paid to LEGOLAND by KBK promptly following demand therefor.
3. All other terms and conditions of all three Agreements remain the
same.
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties
hereto on the day and year first hereinabove written.
LEGOLAND CALIFORNIA
By: /s/ CAROL
Name: Carol illegible
Title: Retail Director
POLAROID CORPORATION
By:
Name:
Title:
RX TECHNOLOGY
By: /s/ DONALD REX GAY
Name: Donald Rex Gay
Title: President
<PAGE>
AMENDMENT ONE TO LEASE AGREEMENT
(RX TECHNOLOGY)
This amendment (the "Amendment") is entered into as of this 25th day of
March 1999, by and between SIX FLAGS THEME PARKS INC. ("Six Flags"), a Delaware
corporation, located at 400 Interpace Parkway, Building C; Third Floor,
Parsippany, NJ 07054- 1191, on behalf of itself and its division Six Flags Great
Adventure located in Jackson, New Jersey (the "Park"), and RX TECHNOLOGY ("RX"),
a Nevada corporation located at 2264 7th Street, Manderville, LA 70471.
WITNESSETH
WHEREAS, RX entered into a License Agreement ( the "Agreement") with the
Park dated as of January 14, 1999, in connection with the operation of Ride
Photo Shops (the "Shops") at the Park; and
WHEREAS, KBK Financial, Inc. ("KBK"), a Delaware corporation, located at
301 Commerce Street, 2200 City Center II, Fort Worth, Texas 76102, has loaned
funds to RX which is secured by, among other things, the Equipment (as defined
in the Agreement) used by RX in the Shops (KBK's loan to RX is hereinafter
called the "Loan"); and
WHEREAS, Six Flags and RX desire to amend the Agreement to provide KBK with
certain rights in the Equipment in the event RX defaults on the Loan; and
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained therein, Six Flags and RX agree as follows:
1. Section 16 of the Agreement entitled "Surrender of Premises" is hereby
amended to add the following language at the end:
Notwithstanding anything to the contrary herein, upon the
occurrence of an event of default under the documents (collectively,
the "Loan Documents") evidencing, governing and securing certain loan
or loans made by KBK Financial, Inc. ("KBK") to RX which is secured
by, among other things, the Equipment, and KBK promptly notifies Six
Flags of such default, at the expiration or prior termination of the
Agreement, KBK shall be entitled to promptly remove the Equipment from
the Parks, except that Six Flags' Trademarks at Six Flags' Affiliates'
Trademarks shall be removed from the Equipment and remain at the Park,
and KBK shall quit and surrender the Ride Photo Shop in the Park in
good condition, reasonable wear and tear excepted. Unless Six Flags
and KBK otherwise agree if KBK fails to remove the Equipment from the
Park within five (5) days after KBK receives written notice of the
termination of this Agreement, then KBK shall be deemed to have
abandoned such property and title to the same shall at that time vest
in Six Flags. Any costs and expenses incurred by Six Flags in removing
such abandoned property (including the reasonable value of the
<PAGE>
services rendered by Park employees in connection therewith) shall be
paid to Six Flags by KBK promptly following demand therefor.
2. An additional Section 24 shall be added to the Agreement and shall read
as follows:
24. RX Loan Default
In the event RX defaults on the Loan Documents prior to the
expiration or other termination of the Agreement, and KBK promptly
notifies Six Flags of this fact, the Park shall thereafter place the
share of Net Revenue that is owed and owing to RX pursuant to Section
5 of the Agreement in an escrow fund pending either (i) final
determination by KBK and RX as to what should be done with such funds,
or (ii) receipt of an appropriate court order directing Six Flags on
how to distribute the Net Revenue.
3. All other terms and conditions of all three Agreements remain the same.
----------------
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties
hereto on the day and year first hereinabove written.
SIX FLAGS THEME PARKS, INC.
By: /s/ name illegible
Name: name illegible
Title: Asst. General Manager and Director
of Finance
RX TECHNOLOGY, INC.
By: /s/ DONALD REX GAY
Name: Donald Rex Gay
Title: President
<PAGE>
EXHIBIT 10.17
Legoland
Joust
<PAGE>
Services Agreement
This Services Agreement is made and entered into effective the 10 of Dec.,
1998, by and among Polaroid Corporation, a Delaware corporation with a place of
business at 784 Memorial Drive, Cambridge, MA 02139 ("Polaroid"), LEGOLAND
California, a California corporation with a place of business at One LEGO Drive,
Carlsbad, CA 92008 ("LEGOLAND") and RX Technology, Inc., a Nevada corporation
with a place of business at Mandeville, LA ("RXT").
WHEREAS, Polaroid has paid a sponsorship fee to LEGOLAND, which entitles
Polaroid to provide all photographic services in the Park, or subcontract the
services to concession operators upon mutual agreement with LEGOLAND; and
WHEREAS, Polaroid wishes to engage RXT to provide certain photographic
services and RXT is willing to accept such engagement; and
WHEREAS, LEGOLAND is willing to accept RXT's engagement to provide the
goods and services as hereinafter described.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows.
1. Definitions
1.1 "Designated Attractions" means the Dragon Coaster and Joust
attractions in the Park.
1.2 "Gross Sales" means the price of all goods, wares and merchandise
sold, and the charges for all services performed by RXT in the Park, for cash,
credit or otherwise without reserve or deduction for uncollected amounts,
including without limitation (i) sales and services (a) where orders originate
in at or from the Park, regardless of whether delivery or performance takes
place in the Park, and (b) where orders are made by mail, telephone, fax or
email and are received or fulfilled at the Park, and (ii) deposits not refunded
to customers. Excluded from Gross Sales shall be (A) refunds to customers on
transactions otherwise included in Gross Sales, and (B) sales, excise or similar
tax imposed by governmental authority and collected from customers and paid out
as required by law. No other tax shall be deducted from Gross Sales.
1.3 "Guest" means a member of the public in the Park.
1.4 "Imaging System" means RXT's High Speed Ride Imaging System.
1.5 "Other Merchandise" means merchandise such as mugs, t-shirts and the
like which is imprinted with Guests' images.
1.6 "Park" means the LEGOLAND California park.
1.7 "RXT Picture" means the thermal output from the Imaging System which
contains a Guest image.
1.8 "Sales Booth" means a facility at the exit of each Designated Ride
from which RXT can sell photographs and other merchandise.
Page 1 of 13
<PAGE>
2. Capture and Sale of Images
2.1 RXT shall install Imaging Systems at each of the Designated
Attractions. The Imaging Systems will capture Guests' photographic images while
they enjoy the Designated Attraction, will digitally store such images, and will
display such images on video screens as the Guests exit the Designated
Attraction.
2.2 RXT Pictures and Other Merchandise will be available for purchase by
the Guests at Sales Booths.
2.3 LEGOLAND shall have the right in its sole discretion to approve or
disapprove all RXT Picture formats and all Other Merchandise. Samples shall be
provided by RXT to LEGOLAND upon request.
2.4 LEGOLAND and Polaroid will each provide appropriate logo to
incorporate into the RXT Picture frames or folders and Other Merchandise as
agreed by the parties.
2.5 Any inventory of RXT Pictures, frames, folders or Other Merchandise
shall be the property and sole responsibility of RXT.
3. Imaging Systems
3.1 Each Imaging System shall meet the specifications set out in Exhibit
A.
3.2 Hardware, software, licenses, backup equipment and related system
maintenance services and upgrades in connection with the Imaging Systems shall
be provided by RXT at no charge. RXT will provide on-site backup equipment as
required based on the frequency of repairs to eliminate the possibility of any
Imaging System being out of service. All equipment which is visible shall
conform to the prevailing design standards at the Park. All equipment, whether
or not visible, will conform to safety and housekeeping standards as established
by LEGOLAND.
3.3 RXT shall provide LEGOLAND with specifications of all ergonomic and
power requirements and any other infrastructure requirements necessary to enable
RXT to carry out its obligations hereunder, and LEGOLAND shall supply such
requirements or permit RXT access to install such requirements itself.
3.4 Imaging Systems must be left powered on at all times, 24 hours a day,
7 days a week, 365 days a year. LEGOLAND will permit all Imaging Systems to
remain powered on at all times. RXT shall instruct personnel to leave each
Imaging System in sleep mode at the end of each business day.
3.5 All media required for the Imaging Systems shall be purchased by RXT
exclusively from Polaroid at the prices set out in Exhibit B, with terms of 2%
30, net 45 days. As mutually sgreed upon see Exhibit B. /s/ DLG
4. Sales Booths
4.1 LEGOLAND will provide at each Designated Ride a Sales Booth for RXT's
use, space in which to install one or more cameras and an agreed number of video
Page 2 of 13
<PAGE>
displays, a telephone line and electrical power, heating and lighting as
required. All of the foregoing will be provided at LEGOLAND's expense, provided
that RXT will pay charges directly related to its use of the telephone.
4.2 RXT will pay all expenses incurred in the installation of the Imaging
Systems, including any special cabling, wiring, electrical power lines and
corresponding trunking/conduit above or below the ground for such cables, as
well as all expenses in connection with outfitting the Sales Booths as required
by LEGOLAND. RXT will provide any poles required to enable the mounting of a
camera and its enclosure, fittings and flash units.
4.3 RXT will be open for business in accordance with the provisions of
Exhibit C, Minimum Standards of Operation.
5. Sales Revenues
5.1 RXT will generate End of Day ("EOD") sales reports and such other
auditing and accounting information as may be agreed by the parties each
business day and shall provide copies of the same to LEGOLAND and Polaroid. In
addition, each Monday RXT shall submit a Weekly Gross Sales Report in the format
designated by LEGOLAND for the week ending the previous Sunday.
5.2 At the end of each business day RXT will deposit all receipts with
LEGOLAND and LEGOLAND will be responsible for all deposit and security
arrangements in connection with such receipts.
5.3 The parties will share the Gross Sales revenues as follows:
LEGOLAND 20%
RXT 70%
Polaroid 10%
5.4 LEGOLAND will remit the appropriate share of Gross Sales revenues to
RXT and Polaroid as set out in Section 5.3 by credit transfer to their
respective accounts every fourteen (14) days, or by other methods as agreed.
5.5 RXT shall preserve for at least one (1) year all original books and
records disclosing information regarding Gross Sales as LEGOLAND requires,
including without limitation cash register tapes, sales slips, sales checks, tax
reports, bank deposit records, sales journals and other supporting data. During
the term of this Agreement, RXT shall upon twenty-four (24) hours' notice from
LEGOLAND or Polaroid present such records at LEGOLAND's management office or to
Polaroid's representative for examination or audit. Upon termination or
expiration of this Agreement, RXT shall upon ten (10) days' notice from LEGOLAND
or Polaroid present such records at LEGOLAND's or Polaroid's business address as
specified herein for examination or audit. In either case, if such examination
or audit discloses a discrepancy of 3% or more, RXT will promptly pay the
requesting party the cost of the audit and the deficiency in fees, which
deficiency shall be payable to both LEGOLAND and Polaroid in any event.
Page 3 of 13
<PAGE>
6. Staffing
6.1 RXT will hire, train, supervise and pay all personnel required to
operate the Imaging Systems and Sales Booths. All LEGOLAND standards of
excellence for Park personnel shall be met by RXT's personnel. LEGOLAND shall
have the right to veto the employment of any potential RXT hire, or require the
termination of any RXT personnel, provided such veto or requirement is in
compliance with applicable law.
6.2 RXT will provide its personnel with technical, sales and supervisory
training. RXT personnel will also be required to attend LEGOLAND orientation and
training programs, and will be required to work towards Guest satisfaction and
to answer Guest inquiries to the same standard as Park personnel. RXT personnel
shall be required to comply with the LEGOLAND Employee Guidebook and the
Standards of Conduct set out in Exhibit D.
6.3 All RXT personnel must adhere to LEGOLAND costume and grooming
standards as in effect for Park personnel. LEGOLAND will provide all costumes
and uniforms at RXT's expense.
7. Special Events
7.1 RXT's appointment by Polaroid to provide Imaging Systems at the
Designated Rides is a non-exclusive appointment within the Park. Polaroid
retains right of first refusal on all photographic or other imaging services
within the Park, whether to provide the services directly or through a third
party approved by LEGOLAND.
7.2 No less than thirty (30) days before any new attraction opens for
which LEGOLAND requires photographic or other imaging services, or thirty (30)
days or such shorter time as is practicable in the case of special photographic
services for special events, LEGOLAND shall so notify Polaroid with a request
for quote on providing such services. Polaroid shall respond to such request for
quote within five (5) business days of receipt.
7.3 LEGOLAND shall have the right to require RXT to operate the Imaging
Services and Sales Booths at any special events which may occur outside of
normal Park hours of operation at no additional charge to LEGOLAND or Polaroid
provided that RXT has the opportunity to sell the RXT Pictures and Other
Merchandise on standard terms as set out in this Agreement.
8. Warranty
8.1 RXT warrants to LEGOLAND and Polaroid that the Imaging Systems will be
kept in good working order at all times, that downtime during hours when the
Park is open for business shall be no more than eight (8) hours per month, and
that Imaging Systems will at all times be operated in a safe and lawful
manner.
8.2 RXT further warrants that all RXT Pictures, frames, folders and Other
Merchandise shall be of good quality and free of defects in materials or
workmanship. Any RXT Pictures, frames, folders or Other Merchandise which do not
comply with the
Page 4 of 13
<PAGE>
foregoing shall be replaced with items that do so comply. Any Guest who requests
a refund for defective RXT Pictures, frames, folders or Other Merchandise shall
be promptly issued such refund.
9. Limitation of Liability
NO PARTY TO THIS AGREEMENT SHALL BE LIABLE IN ANY EVENT FOR LOSS OF
PROFITS OR GOODWILL OR OTHER FINANCIAL LOSS OR FOR SPECIAL, INDIRECT,
INCIDENTAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE
AND EVEN IF ANOTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Indemnification
10.1 RXT shall indemnify and hold LEGOLAND and Polaroid harmless from and
against and defend any claim, suit or proceeding, and pay any settlement amounts
or damages arising out of any claim that the Imaging System or any other
products provided by RXT hereunder infringe upon any copyright, trade secret,
patent or other intellectual property right of a third party. RXT shall have no
obligations under this Section and shall not be liable for any claim of
infringement arising from: (i) modification made to its products by anyone other
than RXT, or (ii) use of its products outside the scope of this Agreement.
10.2 Each party to this Agreement shall indemnify and hold the other
harmless from and against, and defend any claim, suit or proceeding, and pay any
settlement amounts or damages, arising out of claims by third parties: (i) that
arise or result from a breach or failure by the indemnifying party to perform
its obligations under this Agreement in accordance with its terms and
conditions, or (ii) for death, personal injury or damage to personal, tangible
property resulting from the wrongful acts or negligence of the indemnifying
party's employees.
10.3 A party seeking indemnification under this Agreement shall (i)
promptly notify the indemnifying party in writing of the claim, suit or
proceeding for which indemnification is sought, (ii) permit the indemnifying
party to control such suit or proceeding, and reasonably cooperate with the
indemnifying party in the defense or settlement of the claim, suit or
proceeding, and (iii) have the right to proceed for its separate defense at its
own expense.
11. Intellectual Property
11.1 RXT owns and shall retain all intellectual property rights relating
to the Imaging Systems, including without limitation patent, copyright,
trademark and trade secret rights, provided however that LEGOLAND owns any and
all intellectual property rights in and to any characters, visual
representations, logos, slogans, trademarks, and promotional materials created
or provided by LEGOLAND or its agents for use in connection with the Imaging
Systems.
Page 5 of 13
<PAGE>
11.2 Neither LEGOLAND nor Polaroid agree hereby to accept RXT's trade
secrets. Prior to disclosing any trade secrets to LEGOLAND or Polaroid, RXT must
obtain their written consent.
12. Insurance
12.1 RXT shall maintain in effect insurance with the following coverages:
12.1.1 Comprehensive or commercial general liability policy
including contractual liability and broad form property damage coverage,
affording protection on an occurrence basis for claims arising out of bodily
injury, death, and property damage, and having limits of not less than $500,000
for damage to property arising out of one occurrence, with a $2,000,000
aggregate limit of liability or $500,000 combined Single Limit per occurrence
and $2,000,000 Combined Single Limit, aggregate, and
12.1.2 Workers' Compensation Insurance as required by the laws of
the state of California and Employer's Liability insurance with a $100,000
limit.
12.2 RXT shall furnish to LEGOLAND certificates of insurance issued by the
company or companies providing such insurance, evidencing that such policies are
in effect and naming LEGOLAND as an additional insured thereunder and providing
that no such insurance may be cancelled without at least ten (10) days' written
notice to LEGOLAND.
12.3 LEGOLAND shall maintain in effect comprehensive or commercial general
liability insurance including contractual liability and broad form property
damage coverage, affording protection on an occurrence basis for claims arising
out of bodily injury, death, and property damage, and having limits of not less
than $500,000 for damage to property arising out of one occurrence, with a
$2,000,000 aggregate limit of liability or $500,000 combined Single Limit per
occurrence and $2,000,000 Combined Single Limit, aggregate.
13. Term and Termination
13.1 This Agreement shall become effective on the date that the
Sponsorship Agreement between LEGOLAND and Polaroid becomes effective, and shall
remain in effect for a term of three (3) years from the date of Opening.
Thereafter, this Agreement will automatically renew for an additional two (2)
year period unless any party gives written notice of non-renewal no less than
thirty (30) days prior to the end of the initial term.
13.2 This Agreement may be terminated by either LEGOLAND or Polaroid in
the event that RXT is in breach of its material obligations hereunder and such
breach continues despite written notice to both the party alleged to be in
breach and the other non-breaching party specifying the alleged breach in detail
and giving thirty (30) days for cure.
13.3 Upon expiration or earlier termination, RXT shall remove the Imaging
Systems and any other equipment, machinery, trade fixtures, equipment or
supplies
Page 6 of 13
<PAGE>
located in the Park which RXT owns, and repair any damage caused by such
removal. In the event that such removal and repair does not occur within five
(5) working days after such termination or expiration, LEGOLAND shall have the
right to effect such removal and repair and store such items, all at RXT's risk
and expense.
13.4 The following provisions shall survive termination or expiration of
this Agreement and remain in force according to their terms: Sections 5.5, 8.2,
9, 10, 11, 13.3, 14.1 and 15.
14. Compliance
14.1 RXT shall be responsible for obtaining and maintaining in force any
licenses, permits and the like required by any governmental or regulatory agency
or authority in order for RXT to carry out its obligations hereunder. If RXT is
deemed to be in violation of any applicable law, ordinance or code by reason of
RXT's activities or any modification made by RXT to the Park or equipment, RXT
shall immediately cure such violation at its own expense and pay any fines or
penalties attributable to such violation. If RXT fails to do so, LEGOLAND may in
its sole discretion (a) cure such violation and pay such fines or penalties at
RXT's risk and expense, or (b) terminate this Agreement without notice or
liability to RXT.
14.2 RXT shall not harm the Park, nor commit waste, nor create any
nuisance, nor make any use of the Park which is unlawful or offensive in the
sole determination of LEGOLAND, nor do any act tending to injure the reputation
of LEGOLAND. RXT shall abide by all rules and regulations established by
LEGOLAND.
14.3 RXT shall not make any alterations or additions nor make any holes in
the walls, partitions, ceilings or floors, nor permit the painting or placing of
exterior signs, placards or other advertising media, banners, pennants, awnings,
aerials, antennas or the like without on each occasion obtaining prior written
permission of LEGOLAND. RXT shall not suffer any mechanic's lien to be filed
against the Park by reason of any work, labor, services, or materials performed
at or furnished to the Park or to RXT.
15. Non-Solicitation
During the term of this Agreement and for a period of six (6) months after
termination or expiration hereof, none of the parties hereto shall, directly or
indirectly, interfere with the business of any other party hereto in any manner,
including, without limitation, soliciting or inducing any employee or
independent contractor to terminate or breach an employment, contractual or
other relationship with such other party.
RXT agrees to the policy stating that RXT may not hire a LEGOLAND employee
for a period of sixty (60) days from their employment termination date with
LEGOLAND. Exceptions to this policy may be made with the approval of the
Merchandise Manager and the appropriate director.
RXT agrees to a condition of employment, stating those employees of
LEGOLAND and RXT cannot be employed concurrently with LEGOLAND and RXT.
Page 7 of 13
<PAGE>
16. General
16.1 This Agreement shall not be assigned by any party hereto without the
prior written consent of the others.
16.2 Notices shall be given in writing to the addresses first set out
above or such other address as either party may designate in writing from time
to time. All notices may be sent (i) by recognized overnight courier or (ii) by
fax or email and confirmed by first class mail. All notices shall be deemed to
have been given and received on the earlier of actual delivery or five (5) days
from the date of postmark.
16.3 This Agreement constitutes the entire understanding of the parties
with respect to the subject matter hereof, may be modified only in a writing
signed by both parties, and shall supersede any and all communications,
negotiations, correspondence, course of dealings and other agreements between
the parties regarding such subject matter. The terms and conditions of this
Agreement shall prevail notwithstanding any conflict with the terms and
conditions of any purchase order, acknowledgment, invoice or other instrument
submitted by any party.
16.4 Any waiver of a default in performance hereunder shall be deemed a
waiver of the particular instance only and shall not be deemed consent to
continuing default. If any provision of this Agreement is found to be invalid,
illegal or unenforceable, a modified provision shall be substituted which
carries out as nearly as possible the original intent of the parties and the
remaining provisions shall in no way be affected thereby.
16.5 The parties hereto are independent contractors and shall not be
deemed to be partners, joint venturers or agents of the other. Neither party
shall have the right, power or authority to bind the other in any way.
16.6 This Agreement shall be governed by the laws of the State of
California, excluding its choice of law rules. Any and all disputes arising out
of or related to this Agreement, if not resolved by good faith negotiation by
the parties hereto, shall be referred to the state or federal courts of
California, where jurisdiction and venue shall be deemed proper and exclusive.
16.7 The remedies set out in this Agreement shall be the sole and
exclusive remedies of the parties for any actions arising in connection with
this Agreement and each party hereby waives any other remedy, whether in law or
at equity.
16.8 Section headings are for convenience only.
List of Exhibits
Exhibit A Imaging Systems Specifications
Exhibit B Media Pricing
Exhibit C Minimum Standards of Operation
Exhibit D Standards of Conduct
Page 8 of 13
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
POLAROID CORPORATION LEGOLAND CALIFORNIA
By: By:
Name: Name:
Title: Title:
RX TECHNOLOGY, INC.
By: /s/ Donald Rex Gay
Name: Donald Rex Gay
Title: President
Page 9 of 13
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EXHIBIT A
Imaging System Specifications
RX Technology
General System Description
Image System $146,245.00
R-EPOS 8,289.00
Monitors 2,211.00
Printers 7,990.00
Camera System 20,281.00
Flash Unit and Controller 32,995.00
Freight 1,200.00
Total Basic System $219,211.00
Specific configurations for each of the three systems to be furnished will vary.
Systems will require multiple monitors, printers, flash units and other
incidental equipment Specifications subject to change without notice. Warranties
and Licenses apply as outlined in warranty/license documents. The use of RX
Technology, Inc. hardware and software does not imply the sale of any rights to
the technology, rights to reproduce the hardware or software, rights to market
or sell the hardware or software, without the prior written consent and approval
of RX Technology, Inc. specifically and exclusively.
Systems to be installed in conjunction with the Dragon Roller Coaster, The
Joust, and The Flume Ride at LEGOLAND.
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EXHIBIT B
Media Pricing
RX Technology will agree to purchase all media required for the Imaging Systems
at LEGOLAND from Polaroid subject to the following conditions:
1. Polaroid will be able to furnish all required media in a timely manner, If
Polaroid is not able to meet requested and agreed upon delivery schedules,
RX Technology may purchase media from a secondary source to meet sales
requirements.
2. Polaroid will supply media at prices equal to or below the price that RX
Technology currently receives under existing purchasing agreements and
contracts.
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EXHIBIT C
Minimum Standards of Operation
RXT will be open for business, fully staffed, each day that the Park is
open. Absences in excess of 1/2 hour in length on any day on which the Park is
open are inexcusable unless approved in advance in writing by the Merchandise
Specialist or the Retail Director. Every documented unexcused absence will
result in a $100.00 fine payable by RXT to LEGOLAND.
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EXHIBIT D
Standards of Conduct
The following represent minimum standards of employee conduct while working
on-site in LEGOLAND.
o All RXT employees working with Guests must wear the approved LEGOLAND
costume.
o ALL RXT employees working with Guests must comply with all other published
LEGOLAND grooming guidelines.
o No eating, drinking or chewing gum is permitted in view of Guests.
o No sitting down is permitted unless working with a Guest.
o All areas in RXT's control must be returned to an orderly, clean, "as
before opening" state of operation (all trash and empty cartons removed)
at the end of each day.
o Current days and hours of operation must be posted at closing every day.
Every documented violation of any of the above will result in a $25.00 fine
payable by RXT to LEGOLAND. In addition, the following will also result in a
$25.00 fine:
o Three (3) documented violations per month of Section 5.1 of the Services
Agreement.
o Any repeat occurrences of safety violations, as noted during scheduled
safety walk through.
The Merchandising Manager must approve any exceptions in writing.
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Addendum 1
Services Agreement
Services Agreement
This Services Agreement is made and entered into effective the 10 of Dec.,
1998, by and among Polaroid Corporation, a Delaware corporation with a place of
business at 784 Memorial Drive, Cambridge, MA 02139 ("Polaroid"). LEGOLAND
California, a California corporation with a place of business at One LEGO
Drive, Carlsbad, CA 92008 ("LEGOLAND") and RX Technology, Inc., a corporation
with a place of business at Mandeville, LA ("RXT").
WHEREAS, Polaroid has paid a sponsorship fee to LEGOLAND, which entitles
Polaroid to provide all photographic services in the Park, or subcontract the
services to concession operators upon mutual agreement with LEGOLAND; and
WHEREAS, Polaroid wishes to engage RXT to provide certain photographic
services and RXT is willing to accept such engagement; and
WHEREAS, LEGOLAND is willing to accept RXT's engagement to provide the
goods and services as hereinafter described.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows.
1. Definitions
1.1 "Designated Attractions" means the Dragon Coaster and Joust
attractions in the Park.
1.2 "Gross Sales" means the price of all goods, wares and merchandise
sold, and the charges for all services performed by RXT in the Park, for cash,
credit or otherwise without reserve or deduction for uncollected amounts,
including without limitation (i) sales and services (a) where orders originate
in at or from the Park, regardless of whether delivery or performance takes
place in the Park, and (b) where orders are made by mail, telephone, fax or
email and are received or fulfilled at the Park, and (ii) deposits not refunded
to customers. Excluded from Gross Sales shall be (A) refunds to customers on
transactions otherwise included in Gross Sales, and (B) sales, excise or similar
tax imposed by governmental authority and collected from customers and paid out
as required by law. No other tax shall be deducted from Gross Sales.
1.3 "Guest" means a member of the public in the Park.
1.4 "Imaging System" means RXT's High Speed Ride Imaging System.
1.5 "Other Merchandise" means merchandise such as mugs, t-shirts and the
like which is imprinted with Guests' images.
1.6 "Park" means the LEGOLAND California park.
1.7 "RXT Picture" means the thermal output from the Imaging System which
contains a Guest image.
1.8 "Sales Booth" means a facility at the exit of each Designated Ride
from which RXT can sell photographs and other merchandise.
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2. Capture and Sale of Images
2.1 RXT shall install Imaging Systems at each of the Designated
Attractions. The Imaging Systems will capture Guests' photographic images while
they enjoy the Designated Attraction, will digitally store such images, and will
display such images on video screens as the Guests exit the Designated
Attraction.
2.2 RXT Pictures and Other Merchandise will be available for purchase by
the Guests at Sales Booths.
2.3 LEGOLAND shall have the right in its sole discretion to approve or
disapprove all RXT Picture formats and all Other Merchandise. Samples shall be
provided by RXT to LEGOLAND upon request.
2.4 LEGOLAND and Polaroid will each provide appropriate logo to
incorporate into the RXT Picture frames or folders and Other Merchandise as
agreed by the parties.
2.5 Any inventory of RXT Pictures, frames, folders or Other Merchandise
shall be the property and sole responsibility of RXT.
3. Imaging Systems
3.1 Each Imaging System shall meet the specifications set out in Exhibit
A.
3.2 Hardware, software, licenses, backup equipment and related system
maintenance services and upgrades in connection with the Imaging Systems shall
be provided by RXT at no charge. RXT will provide on-site backup equipment as
required based on the frequency of repairs to eliminate the possibility of any
Imaging System being out of service. All equipment which is visible shall
conform to the prevailing design standards at the Park. All equipment, whether
or not visible, will conform to safety and housekeeping standards as established
by LEGOLAND.
3.3 RXT shall provide LEGOLAND with specifications of all ergonomic and
power requirements and any other infrastructure requirements necessary to enable
RXT to carry out its obligations hereunder, and LEGOLAND shall supply such
requirements or permit RXT access to install such requirements itself.
3.4 Imaging Systems must be left powered on at all times, 24 hours a day,
7 days a week, 365 days a year. LEGOLAND will permit all Imaging Systems to
remain powered on at all times. RXT shall instruct personnel to leave each
Imaging System in sleep mode at the end of each business day. [ILLEGIBLE]
3.5 All media required for the Imaging Systems shall be purchased by RXT
exclusively from Polaroid at the prices set out in Exhibit B, with terms of 2%
30, net 45 days. As mutually agreed upon See Exhibit B. /s/ DLG
4. Sales Booths
4.1 LEGOLAND will provide at each Designated Ride a Sales Booth for RXT's
use, space in which to install one or more cameras and an agreed number of video
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displays, a telephone line and electrical power, heating and lighting as
required. All of the foregoing will be provided at LEGOLAND's expense, provided
that RXT will pay charges directly related to its use of the telephone.
4.2 RXT will pay all expenses incurred in the installation of the Imaging
Systems, including any special cabling, wiring, electrical power lines and
corresponding trunking/conduit above or below the ground for such cables, as
well as all expenses in connection with outfitting the Sales Booths as required
by LEGOLAND. RXT will provide any poles required to enable the mounting of a
camera and its enclosure, fittings and flash units.
4.3 RXT will be open for business in accordance with the provisions of
Exhibit C, Minimum Standards of Operation.
5. Sales Revenues
5.1 RXT will generate End of Day ("EOD") sales reports and such other
auditing and accounting information as may be agreed by the parties each
business day and shall provide copies of the same to LEGOLAND and Polaroid. In
addition, each Monday RXT shall submit a Weekly Gross Sales Report in the format
designated by LEGOLAND for the week ending the previous Sunday.
5.2 At the end of each business day RXT will deposit all receipts with
LEGOLAND and LEGOLAND will be responsible for all deposit and security
arrangements in connection with such receipts.
5.3 The parties will share the Gross Sales revenues as follows:
LEGOLAND 20%
RXT 70%
Polaroid 10%
5.4 LEGOLAND will remit the appropriate share of Gross Sales revenues to
RXT and Polaroid as set out in Section 5.3 by credit transfer to their
respective accounts every fourteen (14) days, or by other methods as agreed.
5.5 RXT shall preserve for at least one (1) year all original books and
records disclosing information regarding Gross Sales as LEGOLAND requires,
including without limitation cash register tapes, sales slips, sales checks, tax
reports, bank deposit records, sales journals and other supporting data. During
the term of this Agreement, RXT shall upon twenty-four (24) hours' notice from
LEGOLAND or Polaroid present such records at LEGOLAND's management office or to
Polaroid's representative for examination or audit. Upon termination or
expiration of this Agreement, RXT shall upon ten (10) days' notice from LEGOLAND
or Polaroid present such records at LEGOLAND's or Polaroid's business address as
specified herein for examination or audit. In either case, if such examination
or audit discloses a discrepancy of 3% or more, RXT will promptly pay the
requesting party the cost of the audit and the deficiency in fees, which
deficiency shall be payable to both LEGOLAND and Polaroid in any event.
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6. Staffing
6.1 RXT will hire, train, supervise and pay all personnel required to
operate the Imaging Systems and Sales Booths. All LEGOLAND standards of
excellence for Park personnel shall be met by RXT's personnel. LEGOLAND shall
have the right to veto the employment of any potential RXT hire, or require the
termination of any RXT personnel, provided such veto or requirement is in
compliance with applicable law.
6.2 RXT will provide its personnel with technical, sales and supervisory
training. RXT personnel will also be required to attend LEGOLAND orientation and
training programs, and will be required to work towards Guest satisfaction and
to answer Guest inquiries to the same standard as Park personnel. RXT personnel
shall be required to comply with the LEGOLAND Employee Guidebook and the
Standards of Conduct set out in Exhibit D.
6.3 All RXT personnel must adhere to LEGOLAND costume and grooming
standards as in effect for Park personnel. LEGOLAND will provide all costumes
and uniforms at RXT's expense.
7. Special Events
7.1 RXT's appointment by Polaroid to provide Imaging Systems at the
Designated Rides is a non-exclusive appointment within the Park. Polaroid
retains right of first refusal on all photographic or other imaging services
within the Park, whether to provide the services directly or through a third
party approved by LEGOLAND.
7.2 No less than thirty (30) days before any new attraction opens for
which LEGOLAND requires photographic or other imaging services, or thirty (30)
days or such shorter time as is practicable in the case of special photographic
services for special events, LEGOLAND shall so notify Polaroid with a request
for quote on providing such services. Polaroid shall respond to such request for
quote within five (5) business days of receipt.
7.3 LEGOLAND shall have the right to require RXT to operate the Imaging
Services and Sales Booths at any special events which may occur outside of
normal Park hours of operation at no additional charge to LEGOLAND or Polaroid
provided that RXT has the opportunity to sell the RXT Pictures and Other
Merchandise on standard terms as set out in this Agreement.
8. Warranty
8.1 RXT warrants to LEGOLAND and Polaroid that the Imaging Systems will be
kept in good working order at all times, that downtime during hours when the
Park is open for business shall be no more than eight (8) hours per month, and
that Imaging C Systems will at all times be operated in a safe and lawful
manner.
8.2 RXT further warrants that all RXT Pictures, frames, folders and Other
Merchandise shall be of good quality and free of defects in materials or
workmanship. Any RXT Pictures, frames, folders or Other Merchandise which do not
comply with the
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foregoing shall be replaced with items that do so comply. Any Guest who requests
a refund for defective RXT Pictures, frames, folders or Other Merchandise shall
be promptly issued such refund.
9. Limitation of Liability
NO PARTY TO THIS AGREEMENT SHALL BE LIABLE IN ANY EVENT FOR LOSS OF
PROFITS OR GOODWILL OR OTHER FINANCIAL LOSS OR FOR SPECIAL, INDIRECT,
INCIDENTAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE
AND EVEN IF ANOTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Indemnification
10.1 RXT shall indemnify and hold LEGOLAND and Polaroid harmless from and
against and defend any claim, suit or proceeding, and pay any settlement amounts
or damages arising out of any claim that the Imaging System or any other
products provided by RXT hereunder infringe upon any copyright, trade secret,
patent or other intellectual property right of a third party. RXT shall have no
obligations under this Section and shall not be liable for any claim of
infringement arising from: (i) modification made to its products by anyone other
than RXT, or (ii) use of its products outside the scope of this Agreement.
10.2 Each party to this Agreement shall indemnify and hold the other
harmless from and against, and defend any claim, suit or proceeding, and pay any
settlement amounts or damages, arising out of claims by third parties: (i) that
arise or result from a breach or failure by the indemnifying party to perform
its obligations under this Agreement in accordance with its terms and
conditions, or (ii) for death, personal injury or damage to personal, tangible
property resulting from the wrongful acts or negligence of the indemnifying
party's employees.
10.3 A party seeking indemnification under this Agreement shall (i)
promptly notify the indemnifying party in writing of the claim, suit or
proceeding for which indemnification is sought, (ii) permit the indemnifying
party to control such suit or proceeding, and reasonably cooperate with the
indemnifying party in the defense or settlement of the claim, suit or
proceeding, and (iii) have the right to proceed for its separate defense at its
own expense.
11. Intellectual Property
11.1 RXT owns and shall retain all intellectual property rights relating
to the Imaging Systems, including without limitation patent, copyright,
trademark and trade secret rights, provided however that LEGOLAND owns any and
all intellectual property rights in and to any characters, visual
representations, logos, slogans, trademarks, and promotional materials created
or provided by LEGOLAND or its agents for use in connection with the Imaging
Systems.
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11.2 Neither LEGOLAND nor Polaroid agree hereby to accept RXT's trade
secrets. Prior to disclosing any trade secrets to LEGOLAND or Polaroid, RXT must
obtain their written consent.
12. Insurance
12.1 RXT shall maintain in effect insurance with the following coverages:
12.1.1 Comprehensive or commercial general liability policy
including contractual liability and broad form property damage coverage,
affording protection on an occurrence basis for claims arising out of bodily
injury, death, and property damage, and having limits of not less than $500,000
for damage to property arising out of one occurrence, with a $2,000,000
aggregate limit of liability or $500,000 combined Single Limit per occurrence
and $2,000,000 Combined Single Limit, aggregate, and
12.1.2 Workers' Compensation Insurance as required by the laws of
the state of California and Employer's Liability insurance with a $100,000
limit.
12.2 RXT shall furnish to LEGOLAND certificates of insurance issued by the
company or companies providing such insurance, evidencing that such policies are
in effect and naming LEGOLAND as an additional insured thereunder and providing
that no such insurance may be cancelled without at least ten (10) days' written
notice to LEGOLAND.
12.3 LEGOLAND shall maintain in effect comprehensive or commercial general
liability insurance including contractual liability and broad form property
damage coverage, affording protection on an occurrence basis for claims arising
out of bodily injury, death, and property damage, and having limits of not less
than $500,000 for damage to property arising out of one occurrence, with a
$2,000,000 aggregate limit of liability or $500,000 combined Single Limit per
occurrence and $2,000,000 Combined Single Limit, aggregate.
13. Term and Termination
13.1 This Agreement shall become effective on the date that the
Sponsorship Agreement between LEGOLAND and Polaroid becomes effective, and shall
remain in effect for a term of three (3) years from the date of Opening.
Thereafter, this Agreement will automatically renew for an additional two (2)
year period unless any party gives written notice of non-renewal no less than
thirty (30) days prior to the end of the initial term.
13.2 This Agreement may be terminated by either LEGOLAND or Polaroid in
the event that RXT is in breach of its material obligations hereunder and such
breach continues despite written notice to both the party alleged to be in
breach and the other non-breaching party specifying the alleged breach in detail
and giving thirty (30) days for cure.
13.3 Upon expiration or earlier termination, RXT shall remove the Imaging
Systems and any other equipment, machinery, trade fixtures, equipment or
supplies
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located in the Park which RXT owns, and repair any damage caused by such
removal. In the event that such removal and repair does not occur within five
(5) working days after such termination or expiration, LEGOLAND shall have the
right to effect such removal and repair and store such items, all at RXT's risk
and expense.
13.4 The following provisions shall survive termination or expiration of
this Agreement and remain in force according to their terms: Sections 5.5, 8.2,
9, 10, 11, 13.3, 14.1 and 15.
14. Compliance
14.1 RXT shall be responsible for obtaining and maintaining in force any
licenses, permits and the like required by any governmental or regulatory agency
or authority in order for RXT to carry out its obligations hereunder. If RXT is
deemed to be in violation of any applicable law, ordinance or code by reason of
RXT's activities or any modification made by RXT to the Park or equipment, RXT
shall immediately cure such violation at its own expense and pay any fines or
penalties attributable to such violation. If RXT fails to do so, LEGOLAND may in
its sole discretion (a) cure such violation and pay such fines or penalties at
RXT's risk and expense, or (b) terminate this Agreement without notice or
liability to RXT.
14.2 RXT shall not harm the Park, nor commit waste, nor create any
nuisance, nor make any use of the Park which is unlawful or offensive in the
sole determination of LEGOLAND, nor do any act tending to injure the reputation
of LEGOLAND. RXT shall abide by all rules and regulations established by
LEGOLAND.
14.3 RXT shall not make any alterations or additions nor make any holes in
the walls, partitions, ceilings or floors, nor permit the painting or placing of
exterior signs, placards or other advertising media, banners, pennants, awnings,
aerials, antennas or the like without on each occasion obtaining prior written
permission of LEGOLAND. RXT shall not suffer any mechanic's lien to be filed
against the Park by reason of any work, labor, services, or materials performed
at or furnished to the Park or to RXT.
15. Non-Solicitation
During the term of this Agreement and for a period of six (6) months after
termination or expiration hereof, none of the parties hereto shall, directly or
indirectly, interfere with the business of any other party hereto in any manner,
including, without limitation, soliciting or inducing any employee or
independent contractor to terminate or breach an employment, contractual or
other relationship with such other party.
RXT agrees to the policy stating that RXT may not hire a LEGOLAND employee
for a period of sixty (60) days from their employment termination date with
LEGOLAND. Exceptions to this policy may be made with the approval of the
Merchandise Manager and the appropriate director.
RXT agrees to a condition of employment, stating those employees of
LEGOLAND and RXT cannot be employed concurrently with LEGOLAND and RXT.
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16. General
16.1 This Agreement shall not be assigned by any party hereto without the
prior written consent of the others.
16.2 Notices shall be given in writing to the addresses first set out
above or such other address as either party may designate in writing from time
to time. All notices may be sent (i) by recognized overnight courier or (ii) by
fax or email and confirmed by first class mail. All notices shall be deemed to
have been given and received on the earlier of actual delivery or five (5) days
from the date of postmark.
16.3 This Agreement constitutes the entire understanding of the parties
with respect to the subject matter hereof, may be modified only in a writing
signed by both parties, and shall supersede any and all communications,
negotiations, correspondence, course of dealings and other agreements between
the parties regarding such subject matter. The terms and conditions of this
Agreement shall prevail notwithstanding any conflict with the terms and
conditions of any purchase order, acknowledgment, invoice or other instrument
submitted by any party.
16.4 Any waiver of a default in performance hereunder shall be deemed a
waiver of the particular instance only and shall not be deemed consent to
continuing default. If any provision of this Agreement is found to be invalid,
illegal or unenforceable, a modified provision shall be substituted which
carries out as nearly as possible the original intent of the parties and the
remaining provisions shall in no way be affected thereby.
16.5 The parties hereto are independent contractors and shall not be
deemed to be partners, joint venturers or agents of the other. Neither party
shall have the right, power or authority to bind the other in any way.
16.6 This Agreement shall be governed by the laws of the State of
California, excluding its choice of law rules. Any and all disputes arising out
of or related to this Agreement, if not resolved by good faith negotiation by
the parties hereto, shall be referred to the state or federal courts of
California, where jurisdiction and venue shall be deemed proper and exclusive.
16.7 The remedies set out in this Agreement shall be the sole and
exclusive remedies of the parties for any actions arising in connection with
this Agreement and each party hereby waives any other remedy, whether in law or
at equity.
16.8 Section headings are for convenience only.
List of Exhibits
Exhibit A Imaging Systems Specifications
Exhibit B Media Pricing
Exhibit C Minimum Standards of Operation
Exhibit D Standards of Conduct
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IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
POLAROID CORPORATION LEGOLAND CALIFORNIA
By: /s/ Sandra Lawrence By: /s/ William P. Havizuk
Name: Sandra Lawrence Name: William P. Havizuk, Jr.
Title: Corporate Vice President Title: President
RX TECHNOLOGY, INC.
By: /s/ Donald Rex Gay
Name: Donald Rex Gay
Title: President
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EXHIBIT A
Imaging System Specifications
RX Technology
General System Description
Image System $146,245.00
R-EPOS 8,289.00
Monitors 2,211.00
Printers 7,990.00
Camera System 20,281.00
Flash Unit and Controller 32,995.00
Freight 1,200.00
Total Basic System $219,211.00
Specific configurations for each of the two systems to be furnished will vary.
Systems will require multiple monitors, printers, flash units and other
incidental equipment. Specifications subject to change without notice.
Warranties and Licenses apply as outlined in warranty/license documents. The use
of RX Technology, Inc. hardware and software does not imply the sale of any
rights to the technology, rights to reproduce the hardware or software, rights
to market or sell the hardware or software, without the prior written consent
and approval of RX Technology, Inc. specifically and exclusively.
Systems to be installed in conjunction with the Dragon Roller Coaster, The
Joust, at LEGOLAND.
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EXHIBIT B
Media Pricing
RX Technology will agree to purchase all media required for the Imaging Systems
at LEGOLAND from Polaroid subject to the following conditions:
1. Polaroid will be able to furnish all required media in a timely manner. If
Polaroid is not able to meet requested and agreed upon delivery schedules,
RX Technology may purchase media from a secondary source to meet sales
requirements.
2. Polaroid will supply media at prices equal to or below the price that RX
Technology currently receives under existing purchasing agreements and
contracts.
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EXHIBIT C
Minimum Standards of Operation
RXT will be open for business, fully staffed, each day that the Park is
open. Absences in excess of 1/2 hour in length on any day on which the Park is
open are inexcusable unless approved in advance in writing by the Merchandise
Manager or the Retail Director. Every documented unexcused absence will result
in a $100.00 fine payable by RXT to LEGOLAND.
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EXHIBIT D
Standards of Conduct
The following represent minimum standards of employee conduct while working
on-site in LEGOLAND.
o All RXT employees working with Guests must wear the approved LEGOLAND
costume.
o ALL RXT employees working with Guests must comply with all other published
LEGOLAND grooming guidelines.
o No eating, drinking or chewing gum is permitted in view of Guests.
o No sitting down is permitted unless working with a Guest.
o All areas in RXT's control must be returned to an orderly, clean, "as
before opening" state of operation (all trash and empty cartons removed)
at the end of each day.
o Current days and hours of operation must be posted at closing every day.
Every documented violation of any of the above will result in a $25.00 fine
payable by RXT to LEGOLAND. In addition, the following will also result in a
$25.00 fine:
o Three (3) documented violations per month of Section 5.1 of the Services
Agreement.
o Any repeat occurrences of safety violations, as noted during scheduled
safety walk through.
The Retail Director must approve any exceptions in writing.
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FIRST AMENDMENT TO SERVICES AGREEMENT
This amendment (the "Amendment") is entered into as of this 30 day of
March, 1999, by and among POLAROID CORPORATION ("Polaroid"), a Delaware
corporation, located at 784 Memorial Drive, Cambridge, MA 02139, LEGOLAND
CALIFORNIA ("Legoland"), a California corporation with an amusement park (the
"Park") located at One Lego Drive, Carlsbad, CA 92008 and RX TECHNOLOGY ("RXT"),
a Nevada corporation located at 2264 7th Street, Manderville, LA 70471.
WITNESSETH
WHEREAS, RXT entered into a Services Agreement (the "Agreement") with
Polaroid and Legoland, dated as of December 10, 1998, in connection with RXT
providing certain photographic services (the "Services") at the Park; and
WHEREAS, KBK Financial, Inc. ("KBK"), a Delaware corporation, located at
301 Commerce Street, 2200 City Center II, Fort Worth, Texas 76102, has loaned
funds to RXT which is secured by, among other things, the Imaging System (as
defined in the Agreement) and other equipment (collectively, the "Equipment")
used by RXT in providing the Services (KBK's loan to RXT is hereinafter called
the "Loan"); and
WHEREAS, the parties hereto desire to amend the Agreement to provide KBK
with certain rights in the Imaging Systems and other Equipment in the event RXT
defaults on the Loan; and
NOW, THEREFORE in consideration of the foregoing premises and the mutual
covenants contained therein, the parties agree as follows:
1. An additional Subsection 5.6 shall be added to the Agreement and shall
read:
5.6 In the event RXT defaults on the Loan Documents (as defined
below) prior to the expiration or other termination of the
Agreement, and KBK (as defined below) promptly notifies LEGOLAND of
this fact, LEGOLAND shall thereafter place the share of Gross Sales
that is owed and owing to RXT pursuant to Section 5 of the Agreement
in an escrow fund pending either (i) final determination by KBK and
RXT as to what should be done with such funds, or (ii) receipt of an
appropriate court order directing Legoland on how to distribute
RXT's share of the Gross Sales.
2. Subsection 13.3 in the Agreement is hereby amended to add the following
language at the end:
Notwithstanding anything to the contrary herein, upon the
occurrence of an event of default under the documents (collectively,
the "Loan Documents") evidencing, governing and securing certain
loan or loans made by KBK Financial, Inc. ("KBK") to RXT which is
secured by, among other things, the Imaging
<PAGE>
System and other equipment used by RXT in providing its services
hereunder (collectively, the "Equipment"), and KBK promptly notifies
LEGOLAND of such default at the expiration or prior termination of
the Agreement, KBK shall be entitled to promptly remove the
Equipment from the Park, and KBK shall quit and surrender the Sales
Booth(s) in the Park in good condition, reasonable wear and tear
excepted. Unless LEGOLAND and KBK otherwise agree if KBK fails to
remove the Equipment from the Park within five (5) days after KBK
receives written notice of the termination of this Agreement, then
KBK shall be deemed to have abandoned such property and title to the
same shall at that time vest in LEGOLAND. Any costs and expenses
incurred by LEGOLAND in removing such abandoned property (including
the reasonable value of the services rendered by Park employees in
connection therewith) shall be paid to LEGOLAND by KBK promptly
following demand therefor.
3. All other terms and conditions of all three Agreements remain the same.
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties
hereto on the day and year first hereinabove written.
LEGOLAND CALIFORNIA
By: /s/ Carol [ILLEGIBLE]
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Name: Carol [ILLEGIBLE]
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Title: Retail Director
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POLAROID CORPORATION
By:
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Name:
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Title:
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RX TECHNOLOGY, INC.
By: /s/ Donald Rex Gay
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Name: Donald Rex Gay
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Title: President
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EXHIBIT 10.18
Six Flags Great Adventure
Medusa
<PAGE>
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made as of this 22nd day of January, 1999 ,by
and between SIX FLAGS GREAT ADVENTURE, a division of Six Flags Theme Parks Inc.
having offices at Route 537, Jackson, NJ 08527 ("Six flags"), and RX TECHNOLOGY,
having offices at PO Box 9112, Mandeville, LA 70470 ("Licensee").
WITNESSETH
WHEREAS, Six Flags owns, operates or manages the theme amusement facility
which is open to the general public and known as Six Flags Great Adventure in
Jackson, NJ (the "Park").
WHEREAS, Licensee desires to operate retail concessions known as RX
Technology, (the "Attraction/Concession") d/b/a Batman & Robin Photo, to sell
custom photos and related items (the "Goods/Services") in the Park as set forth
herein;
WHEREAS, Six Flags desires to grant Licensee a license to operate the
Attraction/Concession in the Park, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, Six Flags and Licensee agree as follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination,
Six Flags grants Licensee a license to operate the Attraction/Concession in the
Park in such location of the Park as is set forth on Exhibit A hereto during the
period of time (the "Term") commencing April 2, 1999 (the "Commencement Date")
and terminating at the end of the Park's 2001 operating season (the "Termination
Date").
2. OPERATION.
A. Hours of Operation.
Licensee agrees to operate the Attraction/Concession during the
hours and days, including Sundays and holidays, that the Park is open for
business in accordance with schedules prepared by Six Flags which Six Flags may
modify' in Six Flags' sole discretion at any time on twenty-four (24) hours
notice to Licensee and such additional hours as are required by Six Flags (the
"Operating Hours"). Licensee acknowledges that Six Flags will suffer great harm
if Licensee breaches the agreement set forth in this subsection, the amount of
which would be difficult to determine. Therefore, Licensee agrees to pay Six
Flags liquidated damages of $100.00 for each Park operating day that Licensee
opens the Attraction/Concession five (5) minutes after the opening time of the
Park's Operating Hours and/or closes the Attraction/Concession any time before
the closing time of the Park's Operating Hours, or before traffic has been
cleared by park security, whichever is later. Upon notice thereof by Six Flags
and such liquidated damages amount shall be increased an additional $100.00 for
each successive violation of Park Operating Hours upon notice thereof by Six
Flags, up to a maximum liquidated damages amount of $1000.00.
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B. Approval of Goods/Services.
Licensee agrees to submit samples of all merchandise,
specifications, drawings and other information with respect to Goods/Services
for sale to customers in the Park in connection with the Attraction/Concession,
for Six Flags' approval in advance of sale of the same. Licensee agrees to make
such changes to the Goods/Services, at its sole cost and expense, as Six Flags
shall reasonably determine. Licensee also agrees to coordinate with the Park in
coding each of Licensee's Goods/Services and inputting the same in the cash
register for tracking purposes. To the extent requested by Six Flags, Licensee
shall comply with Six Flags' point of sale and other information systems
requirements.
C. Price of Goods/Services.
(i) Licensee agrees to submit to Six Flags for its review and
approval, a retail price list of all Licensee's Goods/Services for sale to
customers of the Park (the "Approved Price List") at least two (2) weeks prior
to Commencement Date or any proposed change in any previously approved price
list. Licensee agrees to make changes to the Approved Price List as Six Flags
shall reasonably request. Licensee shall be responsible for all costs and
expenses associated with production and printing of the Price List and any
changes thereto, and such costs shall not be deducted from Net Revenue (as
hereinafter defined).
(ii) Licensee agrees to make changes to the Approved Price
List (the "Revised Price List") at any time during the Term if Six Flags
determines, in its sole discretion that an adjustment is appropriate. Licensee
shall be responsible for all costs and expenses associated with production and
printing of the Revised Price List, and such costs shall not be deducted from
Net Revenue (as hereinafter defined).
(iii) Licensee agrees that it shall not make its
Goods/Services available to any party free of charge or at a discounted price
unless Licensee is engaging in samling activities approved by Six Flags.
Notwithstanding the foregoing, Licensee will not offer discounts on its
Goods/Services as Six Flags shall require and as Six Flags shall offer in
locations owned by Six Flags, etc. Licensee shall, at all times, charge
customers, including without limitation, family members, employees and business
associates, the price set forth on the Approved Price List for its
Goods/Services except as otherwise expressly set forth herein.
D. Methods of Sale Payment and Return Policies.
(i) The Goods/Services shall be available for sale to
customers of the Park and/or customers requesting from or related to a Park sale
as follows: by mall, telephone order and at point of purchase (each, a "Method
of Sale"). Licensee agrees to follow Park procedures or acceptance of mail
and/or telephone order sales. A Method of Sale shall be discontinued at the
discretion of Six Flags.
(ii) The following forms of payment for Licensee's
Goods/Services will be accepted: MasterCard, Visa, American Express and Discover
credit cards (collectively, the "Credit Cards"), checks, and cash (each, a "Form
of Payment"). Six Flags may, in its sole
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discretion, discontinue and, if applicable, require Licensee to discontinue any
Form of Payment for Goods/Services sold hereunder. Conversely, Six Flags may, in
its sole discretion, require Licensee to accept such additional forms of payment
as may be accepted by Six Flags in the future; and in so doing, Licensee agrees
to submit to such reasonable rules/restrictions with respect thereto. Payment
for the Goods/Services shall be in accordance with the provisions of Exhibit B -
Payment/Return Agreement, which is attached hereto and incorporated herein.
E. Reports and Records.
(i) Upon commencement of Licensee's daily operations, Licensee
shall pick up a cash till from the Park's cash control facility, and within one
(1) hour after the close of each Park day, Licensee shall deliver to Park's cash
control facility the following: (a) remaining cash till, (b) a daily report of
the day's operations on Six Flags' "Daily Sales Report" form, and (c) the day's
daily gross receipts, including without limitation credit card sales drafts,
credit memos and all other materials evidencing sales transactions during such
day (collectively, the "Deposits"). Such Deposits are received subject to audit
by Six Flags as set forth herein and Six Flags may correct and credit or debit
Licensee for any inaccuracies or errors in Licensee's computation of Deposits.
Six Flags may refuse to accept or revoke acceptance of any Deposits, including
any sales drafts or credit adjustments, which are illegible or which fail to
comply with the terms of this Agreement, including, but not limited to, any
federal or state law.
(ii) Licensee shall retain copies of sales drafts and other
materials evidencing sales transactions related to sale of Goods/Services for a
period of 3 years from date of transaction. This Section shall survive the
termination of the Agreement.
F. Compliance with Laws.
Licensee agrees that at all times during the Term it shall be
in compliance with all laws, rules and regulations with respect to operation of
the Attraction/Concession in the Park, including, without limitation, all
environmental and employment laws, rules and regulations. Licensee agrees that
it shall be responsible for obtaining, at its sole cost and expense, all
licensing and/or permits required in connection with operation of the
Attraction/Concession in the Park.
G. Employees.
(i) Licensee acknowledges that it has no authority to employ
persons on behalf of Six Flags, and no employees or agents of Licensee shall be
deemed to be agents or employees of Six Flags.
(ii) Without Six Flags' prior written consent, Licensee shall
not, until after the second anniversary of the end of the Term, solicit for the
purpose of hiring or employ, directly or indirectly, any employee employed by,
or independent contractor engaging in business with, Six Flags, in each case,
during the Term. This subsection of the Agreement shall survive until the second
anniversary of the end of the Term.
(iii) Licensee represents and warrants that it shall, at its
sole cost and expense, recruit, train, supervise and furnish the services of at
least 2 persons per day to operate the,
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and perform services in connection with the Attraction/Concession as set forth
in Exhibit C attached hereto and incorporated herein ("Licensee's Employees")
during Operating Hours. Licensee acknowledges that Six Flags will suffer great
harm if Licensee breaches the agreement set forth in this subclause, the amount
of which would be difficult to determine. Therefore, Licensee agrees to pay Six
Flags liquidated damages of $250.00 for each Park operating day that Licensee
fails to furnish the services, 1 trained persons per day to operate the
Attraction/Concessions and/or fails to operate the Attraction/Concessions during
the Operating Hours.
(iv) Licensee shall be fully responsible for all Licensee's
Employees, including without limitation, responsibility for all salaries and
other compensation, withholding taxes, worker's compensation insurance, union
dues, if applicable, and other required payments in connection with such
employees and shall be in compliance with all laws, rules and regulations with
respect thereto.
(v) Each prospective employee of Licensee shall complete an
employment application, the form of which must be approved by Six Flags, prior
to beginning work in the Park.
(vi) Licensee agrees to use best efforts to cause its
employees to attend Park training/orientation programs as may be required by Six
Flags and comply with Park rules and regulations, including without limitation
submission to drug testing, as may be required. Licensee further agrees to cause
its employees to wear such uniforms at Licensee's expense as shall be approved
in advance by Six Flags. Licensee agrees that all such uniforms shall be
returned in good condition, normal wear and tear excepted, to Six Flags at the
end of Term. Licensee agrees to pay Six Flags for any damage to, or loss of,
such uniforms. Six Flags reserves the right to off set the amounts thereof from
Licensee's share of Net Revenues.
(vii) Licensee agrees to verify, at its sole cost and expense,
the references of Licensee's Employees, including without limitation, prior
positions of employment, reasons for leaving prior positions, age, education,
criminal records, immigration status, and right to work in the United States and
use due diligence to determine if any of Licensee's Employees have provided
false information or omitted significant information with respect to their
backgrounds and/or prior employment.
(viii) Licensee represents and warrants that it shall not, to
Licensee's knowledge, employ any person to work in the Park who has a criminal
history without Six Flags' knowledge and approval with respect to said
employment. Licensee's knowledge, for the purpose described in the immediately
preceding sentence, is the knowledge that Licensee would have known had Licensee
performed a reference check of the type performed by Six Flags. Licensee
acknowledges that great harm can be suffered by Six Flags if a Licensee's
employee is discovered to have a criminal record that could have been discovered
with a criminal history background check of the type performed by Six Flags with
respect to all prospective employees of Six Flags. The parties agree that it
will be difficult to determine the damages suffered by Six Flags in the event of
Licensee's failure to undertake such background checks. Accordingly, the parties
agree that in the event Licensee employs an individual for work in the Park for
whom Licensee has not, prior to hiring such person, undertaken a criminal
history background check of the type performed by Six
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Flags, then Licensee shall pay Six Flags liquidated damages of $1,000.00 with
respect to each such employee of Licensee regardless of whether the background
check would have revealed any evidence of criminal history.
(ix) At the request of Six Flags, Licensee shall make
available to Six Flags all information obtained with respect to its employees,
including, without limitation, criminal history background checks.
(x) Licensee agrees to terminate employment at the Park for
any Licensee Employee working in the Park who: (a) is subsequently discovered to
have a criminal history and, after being advised of the same, Six Flags does not
approve said employment, (b) fails to comply with Park rules or (c) made
material misstatements or omissions on their employment application. Licensee
agrees to indemnify Six Flags from and against any claims by Licensee's
Employees arising from or related to such dismissals.
3. FACILITY.
A. Rights/Responsibilities.
(i) In connection with Licensee's operation and management of
the Attraction/Concession, Six Flags agrees that Licensee shall be entitled use
of and/or access to: (a) the facility at which the Attraction/Concession is
operated (the "Facility"), (b) adjacent portions of the Facility, as may be
necessary for the operation and maintenance of the Attraction/Concession, and
(c) common ways and areas within the Park for incinerator or trash purposes,
loading and unloading supplies and installation, repair and maintenance of
Equipment and/or other elements related to the Attraction/Concession.
(ii) Six Flags will be responsible for heating, ventilation,
air conditioning, plumbing electrical and telephone expenses, related to the
operation of the Attraction/Concession in the Facility. Six Flags also agrees to
provide Licensee the following: (i) passes to enter the Park for Licensee's
Employees in the performance of their duties, and (ii) Licensee Employee access
to the Park employee parking areas on a first-come, first-serve basis to be used
in the performance of their duties.
(iii) Licensee will be responsible for depositing all trash in
Six Flags' designated trash dumpsters, cleaning the Facility and surrounding
patios, patio chairs and area and removing trash from said areas, the regular
maintenance of the Facility, including the replacement of light bulbs, tubes and
ballasts related to the operation of the Attraction/Concession in the Facility.
B. Alterations.
(i) Upon approval by Licensee in writing, Six Flags shall have
the right, but not the obligation, to make alterations, modifications,
additions, improvements or updates AT Licensee's sole cost and expense, to the
Facility and/or the Equipment, as hereinafter defined (collectively, the
"Alterations"); provided, however, that Licensee shall have been deemed to
approve Alterations if: (i) the Alterations are reasonably required by Six
Flags: for safety, quality or financial control reasons, or if new technology
and improvements are made to the same type of Facility and/or
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Equipment in the industry in the industry and/or (ii) required by any applicable
laws, rules or regulations. All such Alterations shall be made in a good and
workmanlike manner. Licensee agrees to pay Six Flags for the reasonable cost of
such Alterations within thirty (30) days of receipt of an invoice therefor.
(ii) Licensee agrees to make alterations, modifications,
additions, improvements or updates, at its sole cost and expense (including any
necessary design and engineering expenses), to the Facility and/or the
Equipment, as hereinafter defined (collectively, the "Alterations"), as shall be
mutually agreed to by the parties and in accordance with the Design Policy
(attachment). Six Flags' design requirements policy (the "Design Policy") (a
copy of the Design Policy in effect as of the date hereof is attached hereto and
incorporated herein), as Six Flags may amend from time to time upon notice to
Licensee]; provided, however, that Licensee shall be required to make
Alterations if: (i) the Alterations are reasonably required by Six Flags: for
safety, quality or financial control reasons, or if new technology and
improvements are made to the same type of Facility and/or Equipment in the
industry; and/or (ii) required by any applicable laws, rules or regulations. All
such Alterations shall be made in a good and workmanlike mariner.
(iii) Licensee covenants that it will not make, or suffer or
permit to be made, any Alterations in, on, or to the Facility and/or the
Equipment without first: (a) notifying Six Flags in writing sufficiently in
advance of the commencement thereof to enable Six Flags to post or record or
both, appropriate and effective notices of non-responsibility, (b) obtaining the
written consent of Six Flags thereto, which consent Six Flags shall not
unreasonably withhold provided that the proposed Alterations are of high quality
and in harmony with the overall design and appearance of the Park, and necessary
to operate the Attraction/Concession in a safe and efficient manner, (c)
obtaining the written approval of Six Flags as to all contractors,
subcontractors, and materialmen who will perform work or services or supply
materials in connection therewith and (d) obtaining the written consent of Six
Flags with respect to the proposed commencement and completion date of such
Alterations.
C. Maintenance and Repair.
Licensee agrees to properly maintain and keep in good repair
and condition the Facility and/or the Equipment, at its sole cost and expense.
The Facility and/or the Equipment shall be maintained in keeping with the
being and overall aesthetics of the Park. In the event any portion of the
Facility and/or the Equipment is inoperative or a component thereof has failed
or is defective, Licensee shall repair the same no later than 24 hours of
Licensee's knowledge of the same or, in the case of Equipment, Licensee shall
secure comparable equipment (the "Replacement Equipment") and deliver the same
to the Park until such time as the Equipment is repaired. Failure of Licensee to
comply with the provisions of this subsection shall constitute default
hereunder.
D. Relocation
Licensee agrees that Six Flags shall have the right to
relocate Licensee to another Facility in the Park, for any reason, provided that
Six Flags agrees to exercise reasonable care to minimize interference in or to
Licensee's operations and further provided that Six Flags
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agrees to be responsible for Licensee's reasonable moving and installation costs
associated with the same.
E. Ownership.
(i) It is understood and agreed that the Facility and the
improvements thereto, whether made by Licensee or Six Flags hereunder, shall
remain the property of Six Flags.
(ii) It is further understood and agreed that the Equipment
and improvements thereto, whether made by Licensee or Six Flags hereunder, shall
remain the property of Licensee; provided, however, that if such improvements
have been made by Six Flags and Six Flags has been paid by Licensee for said
improvements as set forth herein, then such improvements shall remain the
property of Licensee, except Six Flags' Trademarks the trademarks and other
indicia of Six Flags, including an Alternate Name (hereinafter defined) ("Six
Flags' Trademarks") and the trademarks of Six Flags' affiliates, including
Warner Bros. and DC Comics ("Affiliates' Trademarks") shall be the property of
Six Flags and its affiliates and in the event of termination hereunder Six
Flags' Trademarks and its Affiliates' Trademarks shall be removed therefrom and
returned to Six Flags at Licensee's sole cost and expense. This Section shall
survive the termination of this Agreement.
F. Interference with Park Operations.
Licensee understands that this Agreement may not be asserted
to affect or impede Six Flags' normal Park operations, including without
limitation, upgrading Park equipment, building and/or facilities, buying/selling
Park games or attractions, entering into agreements with other parties or
locating or changing other facilities, equipment, walkways or signage into or
surrounding the Facility, each without the consent of Licensee. Licensee shall
have no exclusive rights with respect to the sale and/or operation of
attractions and/or concessions in the Park similar in nature or type to the
Attraction/Concessions unless specifically set forth in Exhibit D hereto, which
is incorporated herein.
4. EQUIPMENT.
A. Description.
(i) Licensee agrees to provide, at its sole cost and expense,
all equipment, supplies, furnishings, displays, and other signage, cash
registers, credit card processing equipment and any other materials necessary to
operate the Attraction/Concession (the "Equipment"). A general description of
the Equipment is set forth in Exhibit E, attached hereto and incorporated
herein. Notwithstanding the foregoing, Licensee agrees that it shall use only
Six Flags provided cash register, credit card processing equipment
(collectively, "Six Flags' Equipment"), as appropriate, for all transactions
and, in consideration therefore, Licensee shall pay Six Flags no later than
thirty (30) days of receipt of an invoice therefor.
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B. Delivery, Installation and Removal.
(i) Licensee agrees that it shall be responsible for the
shipment, installation and, promptly following the end of the Term, the removal,
of the Equipment, including parts therefor and/or Replacement Equipment (as
hereinafter defined), at its sole cost and expense. Licensee agrees that time is
of the essence with respect to this Agreement and the business of the Park is
significantly affected by Licensee's ability to have the Equipment installed and
operating on schedule and that the business, revenues and profits of the Park
will be affected in a materially adverse manner if the Equipment is not ready
(in good working order) for operation on the Commencement Date. Licensee agrees
to ship to and install the Equipment in the Park by March 19, 1999.
(ii) Six Flags shall have the right, but not the obligation, to test
and inspect the Equipment and the installation and operation of the Equipment
during the Term. Licensee agrees, at its sole cost and expense, to remedy any
problems with the Equipment and installation thereof, upon Six Flags' request,
including without limiting the foregoing, problems associated with defective
design, engineering, workmanship, failure of factory construction, materials or
any component parts.
C. Additional Equipment.
Licensee agrees to install and/or supply additional Equipment,
as determined by mutual agreement of the parties, at no additional cost to Six
Flags.
5. PAYMENT TO LICENSEE.
A. Licensee shall collect, record and submit the Deposits of the
Attraction/Concession to Six Flags and Six Flags shall pay Licensee the
following share of In-Park Net Revenue and mail telephone order Net Revenue (as
hereinafter defined) during each operating season of the Term as follows:
Year Licensee % of Net Revenue
---- --------------------------
1999 62% of In Park Net Revenue
2000 62% of In Park Net Revenue
2001 62% of In Park Net Revenue
B. "Net Revenue" means gross revenue of the Attraction/Concession
during the applicable period less the sales tax paid or payable in respect
thereto or otherwise paid. Licensee agrees that Six Flags shall have the right
to deduct the following from Licensee's share of the Net Revenue: (i) cash
shortages, (ii) credit card, check processing and other transaction costs and
charges, including charge backs and return check amounts and fees related
thereto, (iv) the cost of goods taken from Six Flags' warehouse, to the extent
permitted by Six Flags, or otherwise and not paid for, (v) the cost of leased
Park equipment, if any, each during the applicable period, (vi) the cost
associated with the damage or loss of uniforms as set forth in more detail in
Section 2 G (vi) hereof
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and, (vii) the cost of any bill or charge which is the basis or which may be the
basis for a lien against the Facility as set forth in more detail in Section 10A
(vii) hereof.
C. Licensee's share of the Net Revenue will be calculated at the end
of the week. For payment purposes, a week shall be defined as the seven (7) day
period beginning Monday and ending on and including Sunday. Payments shall be
directed as set forth in this Agreement or as Licensee may otherwise direct in
writing and shall be payable 9 days from Six Flags' calculation thereof. Six
Flags shall have no further monetary liability or obligation to Licensee.
Payments shall be made to Licensee at the address indicated in the first
paragraph of this Agreement or otherwise as requested in writing by Licensee.
D. Notwithstanding Six Flags' deduction of sales tax from Net
Revenue, Licensee represents and warrants that all payments by Six Flags to
Licensee of Licensee's share of Net Revenue hereunder are exempt from any United
States federal, state and local taxes or other assessments, including any
withholding taxes. Licensee shall be solely responsible for, and shall pay when
due, assessments arising from or in connection with the receipt by Licensee of
such Net Revenue.
6. AUDIT RIGHTS.
Until all claims and rights of Six Flags shall have been fully
ascertained, fixed and paid Licensee shall maintain, in accordance with
generally accepted accounting principles, separate and accurate records of the
gross receipts of the Attraction/Concession at the Park showing in detail all
business transacted by Licensee. Six Flags shall have the right, at all
reasonable times, to examine and inspect such records as well as any other
business records of Licensee pertaining to the operation of the
Concession/Attraction. This Section shall survive the termination of this
Agreement.
7. EARLY TERMINATION
8. CHANGE IN FINANCIAL CONDITION.
Licensee agrees to notify Six Flags promptly of any
significant/material change in its financial condition.
9. TRADEMARKS.
A. Licensee hereby grants Six Flags the non-exclusive royalty-free
right and license to use Licensee's trademarks, trade names, service marks,
logos and symbols, including RX TECHNOLOGY. d/b/a Batman & Robin Ride Photo
("Licensee's Trademarks") for the Term of the Agreement in connection with the
Concession/Attraction in the Park. Licensee's Trademarks are and shall remain
Licensee's sole and exclusive property. Six Flags agrees to include a trademark
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symbol (TM) on the first and most prominent reference to Licensee's Trademarks
and a protective trademark legend in materials as shall be required by Licensee
hereunder.
B. Six Flags reserves the right to create an alternate name and/or
logo (collectively, the "Alternate Name") for the Concession/Attraction. Six
Flags shall own all right, title and interest in and to such Alternate Name, and
all goodwill with respect thereto shall inure to the benefit of Six Flags.
Licensee agrees that any Alternate Name shall be the exclusive property of Six
Flags.
C. Six Flags' Trademarks are and shall remain the sole and exclusive
property of Six Flags, and Affiliates' Trademarks are and shall remain the sole
and exclusive property of Six Flags' affiliates, and Licensee shall not use nor
permit others to use Six Flags' Trademarks, including the Alternate Name, and
Affiliates' Trademarks for any purpose without the prior written consent of Six
Flags nor do anything which could in any way conflict with Six Flags' or its
affiliates' use or ownership of such trademarks.
10. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS.
A. Licensee represents and warrants that:
(i) Licensee is, and will during the term of this Agreement
be, solvent and able to meet its obligations hereunder as and when they become
due;
(ii) Licensee shall not use, or suffer or permit any person or
persons to use, the Equipment and/or Facility for any purpose other than as set
forth herein without the prior written consent of Six Flags, or in any unlawful
manner or for any unlawful purpose;
(iii) Licensee shall comply with, and use its best efforts to
cause its agents and employees to comply with all rules and regulations of the
Park as may be in effect from time to time. Licensee confirms that it has been
provided with a copy of the rules and regulations of the Park;
(iv) Licensee will not offer or provide any Goods/Services in
or from the Attraction/Concession or elsewhere in the Park, without the prior
express written authorization of Six Flags. Any uncertainty with respect to the
Goods/Services which Licensee is authorized to offer or provide shall be
resolved in the manner which most limits and restricts Licensee's authority, and
any reasonable interpretation of such authority by Six Flags shall be binding
upon Licensee;
(v) Licensee shall maintain, at its sole cost and expense
during the Term of this Agreement, a valid business license and any other
necessary permits or licenses and shall provide proof of same to Six Flags;
(vi) the Attraction/Concession, including the Facility and the
Equipment with respect thereto, will be fit and safe for its intended commercial
use, shall be free from defects, shall comply with all applicable laws,
ordinances and regulations, including building, electrical and/or other codes,
and will meet the operation objectives set forth herein;
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(vii) Licensee shall promptly pay all bills and charges
relating to the Attraction/Concession in the Park, including any Alterations to
the Equipment and/or the Facility, and shall protect and indemnify Six Flags and
the Park against all such bills and charges and liens relating thereto. In the
event that Licensee desires to contest any bill or charge which is the basis or
which may be the basis for a lien against the Facility constituting the
Attraction/Concession or the Park or both, Licensee shall, within five (5) days
of notice therefor, obtain a bond of, or deposit collateral with, a responsible
corporate surety or depository to protect against any such lien in the amount of
any such bill estimated costs and expenses, including without limitation,
attorney's fees and interest. If Licensee fails to post such bond or collateral
within the aforementioned time period, Six Flags may, without prejudice to any
other right or remedy of Six Flags herein have the option to: (a) pay any such
claim, bill or charge on Licensee's behalf, and Licensee shall reimburse Six
Flags on demand for the amount of any such payment or (b) have the right to off
set the amount of said claim, bill or charge from the portion of Licensee's Net
Revenue due hereunder. Should any claim or lien be filed or recorded affecting
the Facility or the Park or both, or should any action affecting the title
thereto be commenced, Licensee shall give Six Flags written notice thereof
promptly after the same becomes known to Licensee, and Licensee shall thereafter
remedy the same with respect to the Facility or the Park or both;
(viii) Licensee's Trademarks, and/or any advertising,
promotion or publicity materials supplied Six Flags by Licensee hereunder will
not violate, infringe upon or give rise to any adverse claim with respect to any
common law or other right whatsoever, including, without limitation, any
copyright, trademark, service mark, right of privacy or publicity or contract
right of any party or violate any other law; and
(ix) Except as otherwise expressly permitted herein, Licensee
shall not have the right to use or permit the use of any of Six Flags'
Trademarks, including any depiction of the Park or Affiliates' Trademarks
without Six Flags' prior written consent identifying the use consented to, which
consent may be granted or withheld in the absolute discretion of Six Flags. This
Section shall survive the termination of the Agreement.
11. ASSIGNMENT.
The obligations of Licensee herein are personal in nature and this
Agreement and the obligations of Licensee hereunder shall not be assigned or
otherwise transferred by Licensee, in whole or in part, to any third party
without the prior written consent of Six Flags. Six Flags may assign this
Agreement to any affiliate of Six Flags. For purposes of this Agreement, the
term "assigned" or "assignment" shall include, without limitation, a
consolidation or merger of Licensee with or into another party, a reorganization
or a sale of all or substantially all of the assets of Licensee to another
party, and/or transfer of a controlling interest in Licensee's business in or to
another party.
12. INDEMNITY.
Licensee covenants that it will protect, defend, hold harmless and
indemnify Six Flags, its directors, officers, employees, agents, subsidiaries,
affiliates, partners and parent companies from and against any and all expenses,
claims, actions, liabilities, attorney's fees and costs, damages and losses of
any kind or nature whatsoever (including, without limitation of the
11
<PAGE>
foregoing, death of or injury to persons and damage to property), actually or
allegedly resulting from or connected with the operation of the Facility and/or
the Concession/Attraction (including, without limitation of the foregoing, goods
sold, work done, services rendered or products utilized therein, advertising and
promotion therefor, lack of repair in or about the area occupied or arising out
of any actual or alleged infringement of any patent or claim of patent,
copyright, trademark, service mark, or trade name) or from the omission or
commission of any act, lawful or unlawful, or breach of this Agreement by
Licensee or its agents or employees, whether or not such act is within the scope
of the employment of such agents or employees. This Section shall survive the
termination of the Agreement.
13. INSURANCE.
A. To insure Licensee's performance of the obligations and
warranties as set forth herein, but not by way of limitation, Licensee agree, at
its expense, to procure and maintain Comprehensive General Liability against
claims for bodily injury, personal injury or death and property damage,
Contractual Liability, Products Liability, Automobile Liability against claims
for bodily injury, personal injury or death and property damage, and Worker's
Compensation Insurance, including an employer liability endorsement
(collectively, the "Insurance") each covering claims occurring upon, in or about
the Park, and on, in or about the adjoining streets, sidewalks and passageways
and identifying this Agreement, the Park and Six Flags Theme Parks Inc. as being
named as additional insured on the Insurance policies described herein,
including any renewals of such Insurance. The Insurance shall apply separately
to each insured against whom a claim is made or suit is brought. The Insurance
shall remain in full force and effect for the Term of this Agreement and one (1)
year thereafter, and all such Insurance shall include a waiver of subrogation
against Six Flags. This Section shall survive the termination of the Agreement.
B. The Insurance shall be written by a company rated "A" or better
by Best Insurance Reports, or by such other company consented to in writing by
Six Flags. The policy of Insurance will provide, inter alia, for thirty (30)
days advance notice to Six Flags and Licensee of any proposed policy
modification or cancellation. Upon any cancellation and/or modification of any
Insurance policy required hereby, and prior to the effective date thereof,
Licensee shall deliver replacement insurance to Six Flags. Licensee shall
forward the Certificate of Insurance form attached hereto and incorporated
herein as Exhibit G to its insurer for execution and transmit such executed
Certificate to Six Flags promptly after execution of this Agreement, and
Licensee shall also supply Six Flags with its official Certificate of Insurance
promptly after execution of this Agreement for its records.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out of
a single occurrence and $3,000,000 for all claims in the aggregate.
D. All Insurance policies required to be maintained shall be primary
and shall not require contribution from any coverage maintained by Six Flags,
and shall not contain, without Six Flags' prior written consent, any special or
non-customary exclusions.
E. Licensee's shall further, upon request, furnish Six Flags with a
certificate from see s insurance carrier certifying that Licensee has obtained
Worker's Compensation insurance
12
<PAGE>
upon its employees, or an opinion of counsel satisfactory to Six Flags that such
coverage is not required.
F. Licensee understands that Six Flags' rights and Licensee's
obligations hereunder shall not be limited or affected by the provisions of this
Section 13.
14. BREACH.
In the event of breach of any provision of this Agreement by
Licensee or in the event Licensee should become insolvent, file a voluntary
petition in bankruptcy, have a receiver, liquidator or trustee in bankruptcy
appointed over its affairs, have a significant material adverse change in its
financial condition, Six Flags may, at its option, then or at any time
thereafter while said breach continues, upon fifteen (15) days prior written
notice to Licensee, terminate this Agreement and the license and privileges
granted hereby and be relieved of all further obligation hereunder arising after
the date of termination. In the event of termination hereunder, Licensee shall
then quit and surrender the premises as set forth in this Agreement and the
license and privileges granted hereby shall then terminate; provided, however,
that Licensee shall remain liable for all obligations under this Agreement, and
Six Flags may, in addition to any remedy herein provided, recover from Licensee
any damages to which it may be entitled in law or equity. This Section shall
survive the termination of this Agreement.
15. NOTICES.
All notices required or permitted to be given hereunder shall be
in writing and personally delivered or sent by courier or registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
To Six Flags: SIX FLAGS GREAT ADVENTURE
ROUTE 537
JACKSON, NJ 08527
Attn: Bill Muirhead
Fax: (732) 928-0839
copy to: Premier Parks.
11501 Northeast Expressway
Oklahoma City, Ok 73131
Attn: General Counsel
Fax: (405-475-2555)
To Licensee: RX TECHNOLOGY
d/b/a/ Batman & Robin Ride Photo
2264 Seventh Street
Mandeville, LA 70471
Attn: D. Rex Gay
Fax: (504-727-9412)
13
<PAGE>
or to such other addresses as the parties may direct by written notice given as
herein above provided. Notice shall be deemed given when received as evidenced
by the return receipt or the date such notice is first refused, if that be the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
16. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, Licensee
may, subject to any indebtedness of Licensee to Six Flags, promptly remove
Licensee's Equipment from the Park, except that Six Flags' Trademarks or Six
Flags' Affiliates' Trademarks shall be removed from the Equipment and remain at
the Park, and Licensee shall quit and surrender the Facility in the Park in good
condition, reasonable wear and tear excepted. Unless the parties otherwise
agree, if Licensee fails to remove the Equipment from the Park within five (5)
days after termination of this Agreement, then Licensee shall be deemed to have
abandoned such property and title to the same shall at that time vest in Six
Flags. Any costs and expenses incurred by Six Flags in removing such abandoned
property (including the reasonable value of the services rendered by Park
employees in connection therewith) shall be paid to Six Flags by Licensee
promptly following demand therefor. This Section shall survive the termination
of this Agreement.
17. GOVERNING LAW.
A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State of
New Jersey (the "Specified State") and that the laws of the Specified State
shall govern the construction, interpretation and enforceability of this
Agreement. Should any dispute arise in connection with the construction,
interpretation, performance or enforcement of the provisions of this Agreement,
Each of the parties hereto agree that any such action shall be brought only in
the courts located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the relationship of the parties hereto, (ii) agree that any
such action, suit or proceeding shall be brought in any state or federal court
of competent jurisdiction sitting in the federal court district in the Specified
State, (iii) submits to the jurisdiction of such courts and (iv) to the fullest
extent permitted by law, agree that it will not bring any action, suit or
proceeding in any forum other than as provided herein (but nothing herein shall
affect the right of the Six Flags to bring any action, suit or proceeding in any
other forum to the extent necessary to enforce its rights under this Agreement).
18. RELATIONSHIP OF THE PARTIES.
Licensee is an independent contractor. Nothing contained in or done
pursuant to this Agreement shall be construed as creating a partnership, agency,
joint employer, joint venture or landlord-tenant relationship. Except as
otherwise expressly provided in this Agreement, no party shall become bound,
with respect to third parties, by any representation, act or omission of the
other.
19. FORCE MAJEURE.
14
<PAGE>
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God. In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
20. PUBLICITY.
A. Six Flags shall, at its discretion, develop, direct and produce
any and all advertising and promotion in connection with the
Concession/Attraction in the Park for the purposes of advertising, promoting,
publicizing and merchandising the Concession/Attraction in the Park. Licensee
agrees to cooperate, as necessary, when requested to provide any advertising or
promotion with respect to the Concession/Attraction.
B. Six Flags shall have the right to use Licensee's Trademarks and
the names of any person or entity rendering services on or associated with the
Concession/Attraction, as well as any such person or entity's biography,
photographic or non-photographic likeness and recorded voice.
C. Licensee shall not have the right to have or cause to have
sponsors with respect to the Concession/Attraction without the prior written
approval of Six Flags.
D. Licensee agrees that Six Flags may obtain sponsors for the
Concession/Attraction which may include affixing signage in or around the
Attraction/Concession, and any proceeds Six Flags derives in connection
therewith shall be solely that of Six Flags.
21. PROPRIETARY INFORMATION.
Licensee agrees that this Agreement and all information regarding
the business operations, policies and practices of Six Flags ("Proprietary
Information") acquired or learned in connection with the activities conducted
under this Agreement shall be deemed confidential and shall be kept in strict
confidence under appropriate safeguards. The term Proprietary Information, as
used herein, does not include any information that is or becomes generally
available to the public other than as a result of disclosure in violation of
this Agreement. This Section shall survive the termination of the Agreement.
22. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
15
<PAGE>
23. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules
hereto) constitutes the entire agreement between the parties with respect to the
matters which are the subject hereof and supersedes all prior and
contemporaneous agreements and undertakings of the parties pertaining to the
subject matter hereof. This Agreement may not be modified except by written
instrument duly executed by the parties hereto.
16
<PAGE>
IN WITNESS WHEREOF, this License Agreement has been duly executed by the parties
hereto on the day and year first hereinabove written.
SIX FLAGS GREAT ADVENTURE
a division of Six Flags Theme Parks Inc.
By: /s/ Leonard Turtora
------------------------------
Name Leonard Turtora
Title: Director of Finance
LICENSEE:
RX TECHNOLOGY
d/b/a/ Batman & Robin Ride Photo
By: /s/ D. Rex Gay
------------------------------
Name: D. Rex Gay
Title: Chairman/CEO
S-1
<PAGE>
Exhibit A
Location(s)
Locations shall be determined by Six Flags in its sole discretion and may
be changed from time to time in the reasonable discretion of Six Flags.
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) Licensee shall comply with Six Flags' credit card
procedures (the "Credit Card Procedures") (a list of the Credit Card Procedures
in effect as of the date hereof is attached hereto and is incorporated herein),
as Six Flags may amend them from time to time upon notice to Licensee, with
respect to acceptance of Credit Cards as payment for any Goods/Services.
(ii) Licensee agrees that it shall not: (A) discriminate in
favor of any Credit Card accepted for payment over another, (B) require a
minimum transaction amount or impose a surcharge as a condition for honoring
Credit Cards, (c) impose a requirement on Credit Card holders to provide any
personal information as a condition for honoring Credit Cards unless otherwise
required by the Credit Card Procedures, (D) make or require a photocopy of a
Credit Card, (E) make a Credit Card sale where only part of the consideration
due is paid by use of such Credit Card, or (F) accept a Credit Card for any
purpose which is prohibited by the Credit Card Procedures.
(iii) Licensee shall not make a Credit Card sale to any person
if: (A) the Credit Card being presented has expired according to the expiration
date shown on such Credit Card, (B) the sale has been declined for
authorization, (c) Licensee has reasonable grounds to believe the Credit Card
being presented is counterfeit, fraudulent or stolen, or (D) the signature on
the Credit Card does not appear to be the same as the signature on the sales
draft or the spelling of the signature on the sales draft is different from the
spelling of the name on the Credit Card. Licensee shall use reasonable efforts
to retrieve any credit card from the customer when instructed by a service
provider in response to an authorization or other inquiry.
(iv) Licensee agrees to display symbols of the Credit Cards,
supplied by Six Flags hereunder, at its Facility in the Park to effectively
inform customers of the Park that the Credit Cards are honored by Licensee.
(b) Returns and Adjustments.
(i) All disputes between Licensee and any Credit Card holder
respecting any Credit Card transaction hereunder shall be settled between
Licensee and such Credit Card holder. Licensee agrees that in the event of a
Credit Card dispute, Licensee shall reasonably address the Credit Card holder's
concern in a good faith manner.
(ii) Licensee shall maintain a fair and consistent policy for
exchange and return of Goods/Services and for the adjustment of amounts due on
Credit Card transactions and such policy shall be the same as available to cash
customers. Licensee shall make
<PAGE>
no cash refunds or payments to Credit Card holders for returns or adjustments on
Credit Card sales.
(iii) When a refund or payment is due to a Credit Card holder
for return or adjustment, Licensee shall prepare, execute and deliver to Six
Flags or cause to be delivered to Six Flags a legible credit adjustment memo on
a form provided or approved by Six Flags and deliver to the Credit Card holder a
copy of the completed form. Each credit adjustment memo shall be imprinted with
or contain the following: (A) Six Flags' name and merchant account number, (B)
city and address where the credit or adjustment occurred, (c) Credit Card
holder's name and Credit Card number, (D) Credit Card expiration date, (B) the
date of the return or adjustment and the date of the initial transaction, if
available, (F) the amount of the credit, and (vii) a brief description of the
Goods/Services returned.
(iv) With respect to each credit adjustment memo presented to
Six Flags and/or transmitted hereunder, Licensee represents and warrants that:
(A) the credit adjustment memo represents an amount lawfully due to a Credit
Card holder for the return or adjustment of Goods/Services previously purchased
with the Credit Card, (B) a sales draft relating to and including the amount of
the credit memo was previously presented to Six Flags and/or transmitted
hereunder, (c) the credit adjustment memo does not duplicate information
concerning the same transaction in any other credit slip unless Six Flags
requests a resubmission, (D) the signature appearing on the credit adjustment
memo is that of an authorized employee of Licensee, and (E) Licensee has
complied fully with the terms of this Agreement.
(c) Failure to Comply.
In the event Licensee fails to comply with the Credit Card
Procedures or the terms of this Exhibit B for a given Credit Card transaction
and said sales draft is returned to Six Flags, or in the event Goods/Services
are returned by the customer that paid by Credit Card, or in the event
Goods/Services are not received by customer or any defense or problem is made or
presented by customer questioning the validity or authorization of the
transaction, Licensee agrees that Six Flags may, in its sole discretion: (i)
deduct the amount of said Credit Card transaction from Licensee's share of the
revenue from the Attraction/Concession due and owing Licensee, if any, or (ii)
bill Licensee in the amount of said Credit Card transaction, and Licensee shall
pay Six Flags the same within five (5) days of receipt therefor, or (iii) demand
payment from Licensee in the amount of said Credit Card transaction and Licensee
shall pay Six Flags immediately upon its receipt of Six Flags' demand. Failure
of Licensee to pay Six Flags as set forth herein for any outstanding Credit Card
transactions shall constitute a breach of the Agreement.
<PAGE>
(d) Termination of Acceptance.
In the event Six Flags' agreement with respect to the Credit
Cards terminates or Six Flags, in its sole discretion, determines that it does
not want Licensee to accept Credit Cards as payment for Goods/Services
hereunder, Licensee agrees to discontinue acceptance of Credit Cards and remove
the Credit Card symbols from the Facility upon notification by Six Flags.
2. CHECK.
(i) Acceptance.
Licensee represents and warrants that it shall comply with Six
Flags' current check authorization procedures (the "Check Authorization
Procedures") (a copy of the TeleCheck Authorization Procedures in effect as of
the date hereof has been received by Licensee and is incorporated herein), as
Six Flags may amend from time to time upon notice to Licensee, prior to
acceptance of a check as payment for Goods/Services. Notwithstanding the
foregoing, Licensee agrees that it shall not contact TeleCheck directly, as set
forth in Section 3 of the Check Authorization Procedures but shall contact the
Merchandise office at the Park at ext. 2407 to obtain authorization from
TeleCheck.
(b) Returns and Adjustments.
(i) All disputes between Licensee and any customer respecting
any check transaction hereunder shall be settled between Licensee and such
customer. Licensee agrees that in the event of a dispute, Licensee shall
reasonably address the customer's concern in a good faith manner.
(ii) Licensee shall maintain a fair and consistent policy for
exchange and return of merchandise and for the adjustment of amounts due on
check transactions and such policy shall be the same as available to cash and
credit customers.
(iii) When a refund or payment is due to a customer for return
or adjustment, Licensee shall prepare, execute and deliver to Six Flags or cause
to be delivered to Six Flags a legible Refund Document as provided by Six Flags.
(iv) With respect to each legible Refund Document presented to
Six Flags hereunder, Licensee represents and warrants that: (A) the Refund
Document represents an amount lawfully due customer for the return or adjustment
of Goods/Services previously purchased with a check, (B) a sales draft relating
to and including the amount of the Refund Document was previously presented to
Six Flags and/or transmitted hereunder, (c) the Refund Document does not
duplicate information concerning the same transaction in any other Refund
Document unless Six Flags requests a resubmission, (D) the signature appearing
on the Refund Document is that of Licensee, and (E) Licensee has complied fully
with the terms of this Agreement.
(c) Failure to Comply.
<PAGE>
In the event Licensee fails to comply with the Check
Authorization Procedures for a given check and said check is returned to Six
Flags, or in the event Goods/Services are returned by the customer that paid by
check, or in the event Goods/Services are not received by customer or any
defense or problem is made or presented by customer questioning the validity or
authorization of the transaction, Licensee agrees that Six Flags may, in its
sole discretion: (A) deduct the amount of said check from Licensee's share of
the revenue from the Attraction/Concession due and owing Licensee, if any, or
(B) bill Licensee in the amount of said check, and Licensee shall pay Six Flags
the same within five (5) days of receipt therefor, or (c) demand payment from
Licensee in the amount of said check and Licensee shall pay Six Flags
immediately upon its receipt of Six Flags' demand. Failure of Licensee to pay
Six Flags as set forth herein for any outstanding checks shall constitute a
breach of the Agreement.
(d) Termination of Acceptance.
In the event Six Flags' agreement with TeleCheck terminates
and Six Flags does not wish to continue acceptance of checks in the Park or Six
Flags, in its sole discretion, determines that it does not want Licensee to
accept checks as payment for Goods/Services hereunder, Licensee agrees to
discontinue acceptance of checks upon notification by Six Flags.
3. CASH.
(a) Acceptance.
Licensee represents and warrants that it shall cause all cash
received by or on Licensee's behalf for sale of Goods/Services hereunder to be
rung in the cash register or other Six Flags approved cash collection equipment
and deposited in such cash register or other equipment at the time of sale.
Licensee agrees that it shall not accept cash for a mail or telephone order
transaction.
<PAGE>
(b) Returns and Adjustments.
(i) All disputes between Licensee and any customer respecting
any cash transaction hereunder shall be settled between Licensee and such
customer. Licensee agrees that in the event of a dispute, Licensee shall
reasonably address the customer's concern in a good faith manner.
(ii) Licensee shall maintain a fair and consistent policy for
exchange and return of merchandise and for the adjustment of amounts due on cash
transactions and such policy shall be the same as available to credit customers.
(iii) When a refund or payment is due to a customer for return
or adjustment, Licensee shall prepare, execute and deliver to Six Flags or cause
to be delivered to Six Flags a legible Refund Document.
(iv) With respect to each legible Refund Document presented to
Six Flags hereunder, Licensee represents and warrants that (A) the Refund
Document represents an amount lawfully due customer for the return or adjustment
of Goods/Services previously purchased in cash, (B) a sales draft relating to
and including the amount of the Refund Document was previously presented to Six
Flags and/or transmitted hereunder, (c) the Refund Document does not duplicate
information concerning the same transaction in any other Refund Document unless
Six Flags requests a resubmission, (D) the signature appearing on the Refund
Document is that of Licensee, and (E) Licensee has complied fully with the terms
of this Agreement.
(v) Licensee agrees that in the event Goods/Services hereunder
are returned on a day that said Goods/Services were not purchased, Six Flags
may, in its sole discretion: (A) deduct the amount of said return from
Licensee's share of the revenue from the Attraction/Concession due and owing
Licensee, if any; (B) bill Licensee in the amount of said return and Licensee
shall pay Six Flags the same within five (5) days of receipt therefor or (c)
demand payment from Licensee in said amount and Licensee shall pay Six Flags
immediately upon receipt of Six Flags' demand. Failure of Licensee to pay Six
Flags as set forth herein for any amount outstanding shall constitute a breach
of the Agreement.
<PAGE>
Credit Card Procedures
Licensee represents and warrants that it shall follow the following Credit
Card Procedures, as may be amended from time to time by Six Flags upon notice to
Licensee:
1. Each Credit Card sale shall be evidenced by a legible sales draft
(the "Draft") on a form approved by Six Flags, indicating the full amount due
for Goods/Services sold hereunder.
2. Each Draft shall be imprinted by Licensee, or show evidence of
the electronic equivalent obtained through use of a terminal which reads the
magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) Six Flags'
name and merchant account number, (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including the
account number, name and expiration date of the Credit Card, (iv) the date the
transaction takes place and the price of the Goods/Services, (v) total amount of
the transaction, including all applicable taxes, (vi) description of
Goods/Services, and (vii) signature of the Credit Card holder.
4. Licensee shall compare the signature on the Draft with the
signature on the Credit Card to ascertain that they are the same, and if the
Credit Card has a photograph of the Credit Card holder, verify that the Credit
Card holder and the person presenting the Credit Card appear to be the same
person. If Licensee believes there is a discrepancy in the signature or if the
photographic identification is uncertain, Licensee shall contact the service
provides for instructions.
5. If the signature panel on the Credit Card is blank, Licensee
shall do the following: (i) review positive identification to determine that the
user is the Credit Card holder; such identification must consist of a current
official government identification document (such as a passport or driver's
license) that bears the Credit Card holder's signature, (ii) indicate such
positive identification (including any serial number and expiration date) on the
Draft and (iii) require the Credit Card holder to sign the signature panel of
the Credit Card prior to completing the transaction.
6. On mail and telephone order sales, if any, Licensee shall print
on the Draft the information required in Paragraph 3 of these Credit Card
Procedures and, in addition, the following: (i) the customer's name and account
number, (ii) whether the order was placed by mail (M.O.) or telephone (T.O.),
and (iii) whether or not authorization is obtained. With respect to mail and
telephone order sales, Licensee does not need to secure the Credit Card holder's
signature or Credit Card imprint. Licensee understands that telephone and mail
order transactions are permitted at Licensee's sole risk; namely, that any
defense or problem raised by a customer questioning the validity or
authorization of the transaction may be made.
7. For each Credit Card sale, Licensee shall deliver or cause to be
delivered a copy of the completed sales draft to the customer, evidencing the
full amount due for the Goods/Services.
<PAGE>
8. Licensee shall not complete a sales transaction without first
obtaining an authorization from the designated service provider for the total
amount of the transaction. Licensee shall print legibly on the Draft the
authorization/approval code, evidencing any authorization so obtained.
<PAGE>
Exhibit C
Employees
Licensee's Employees shall include the following:
No. of Employees Title Function Location
- ---------------- ----- --------- --------
<PAGE>
Exhibit D
Exclusive Rights
If exclusive rights are agreed upon, describe carefully here. If not, delete the
bracketed text in the Agreement, delete this Exhibit and re-title Exhibits E and
F as D and E, respectively. Re-title references to these Exhibits in text of
Agreement also.
N/A
<PAGE>
Exhibit E
Equipment
Description
-----------
Portable Themed Building
RX Technology Video Equipment
Multi-shot flash System, Multiple shot flash burst
RX Technology Super Sensor to trigger picture taking
RX Technology Trigger Control Unit
Video Printers
RX Technology POS Sales Station
RX Technology Imaging Computer System
RX Technology Camera Equipment at Pole
<PAGE>
Exhibit F
Early Termination
<PAGE>
Exhibit G
SIX FLAGS GREAT ADVENTURE
ROUTE 537, P.O. BOX 120
Telephone #(732) 928-2000 Fax #(732) 833-0204
CERTIFICATE OF INSURANCE
COMPANIES AFFORDING COVERAGE
COMPANY COMPANY
LETTER A LETTER D
COMPANY COMPANY
LETTER B LEITER E
COMPANY COMPANY
LETTER C LETTER F
COVERAGES
THIS CERTIFICATE IS TO CERTIFY TO FRONTIER CITY ______ OR ANY SUBSIDIARIES
HEREAFTER REFERRED TO AS "SIX FLAGS' THAT POLICIES DESCRIBED BELOW HAVE BEEN
ISSUED TO THE INSURED BY THE UNDERSIGNED AND ARE IN FULL FORCE AND EFFECT AT
THIS TIME. IF ANY CHANGES ARE MADE IN THE POLICIES WHICH EFFECT THE INTEREST OF
SIX FLAGS OR IF ANY OF THE POLICIES ARE CANCELED AT THE REQUEST OF EITHER
PARTY, WRITTEN NOTICE WILL BE GIVEN BY THE INSURANCE COMPANY TO SIX FLAGS
AT LEAST THIRTY (30) DAYS PRIOR TO THE EFFECTIVE DATE THEREOF
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
CO. TYPE OF INSURANCE POLICY EFFE. EXP. LIMITS IN THOUSANDS
LTR. NUMBER DATE DATE
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
WORKERS COMPENSATION STATUTORY
EMPLOYERS LIABILITY (NOTE 1) EA. ACCIDENT $____
CERTIFICATE HOLDER NAMED ALT DISEASE-POLICY LIMIT $____
EMPLOYER DISEASE EA. EMPLOYEE $____
- --------------------------------------------------------------------------------------------------
GENERAL LIABILITY (NOTE 2) GENERAL AGG. $____
COMPREHENSIVE GENERAL LIABILITY PRODUCT-COMP/OPS AGG. $____
CLAIMS MADE OCCURRENCE PERSONAL & ADV INJURY $____
CERT. HOLDER NAMED ADDNL. INSURED EACH OCCURRENCE $____
WAIVER OF SUBROGATION WAIVED
AGAINST CERT. HOLDER FIRE DAMAGE
HOLD HARMLESS AGREEMENT WITH CERT. (ANY ONE FIRE) $____
HOLDER INSURED MEDICAL EXPENSE
PROFESSIONAL LIABILITY (ANY ONE PERSON) $____
- --------------------------------------------------------------------------------------------------
AUTO LIABILITY COMBINED SINGLE LIMIT $____
ANY AUTO BODILY INJURY
ALL OWNED (PER PERSON) $____
SCHEDULED AUTOS BODILY INJURY
CERT. HOLDER NAMED ADDNL. INSURED (PER ACCIDENT) $____
WAIVER OF SUBROGATION AGAINST
SIX FLAGS PROPERTY DAMAGES $____
- --------------------------------------------------------------------------------------------------
CARE, CUSTODY AND CONTROL (NOTE 4) EACH OCCURRENCE $____
(IF APPLICABLE) AGGREGATE $____
ALL RISK DEDUCTIBLE $____
LEGAL LIABILITY FORM
- --------------------------------------------------------------------------------------------------
EXCESS LIABILITY (NOTE 5) EACH OCCURRENCE $____
UMBRELLA AGGREGATE $____
OTHER THAN UMBRELLA FORM DEDUCTIBLE $____
- --------------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS /LOCATIONS/RESTRICTIONS
- --------------------------------------------------------------------------------------------------
PRODUCER/AGENT INSURED
I DO HEREBY CERTIFY THAT THE INSURERS LISTED HEREIN ARE
AUTHORIZED TO TRANSACT BUSINESS IN AND FOR THE STATE OF DATE ISSUED___________
_____ AND CARRY A. M. BEST RATINGS OF ____________________________
____________________________
AUTHORIZED REPRESENTATIVE REVERSE SIDE MUST BE COMPLETED
(OVER)
_____________________________
- --------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
POLICIES LISTED ON REVERSE SIDE INCLUDE COVERAGE FOR: CHECK ONE
YES NO
<S> <C> <C>
NOTE (1) WORKERS COMPENSATION AND EMPLOYER'S LIABILITY
(A) VOLUNTARY COMPENSATION ENDORSEMENT? ______ ______
(B) DOES POLICY INCLUDE "WAIVER OF SUBROGATION ENDORSEMENT"
AS REQUIRED BY CONTRACT WITH SIX FLAGS? ______ ______
(C) ALTERNATE EMPLOYER ENDORSEMENT IN FAVOR OF SIX FLAGS? ______ ______
(D) COVERAGE IS AFFORDED IN THE STATES OF:
______________________________________
NOTE (2) COMPREHENSIVE GENERAL LIABILITY
(A) COVERAGE WRITTEN ON A COMPREHENSIVE FORM? ______ ______
(B) PRODUCTS OR COMPLETED OPERATIONS COVERAGES INCLUDED? ______ ______
(C) IS POLLUTION COVERAGE INCLUDED? ______ ______
(D) CONTRACTUAL LIABILITY COVERING HOLD HARMLESS AGREEMENT
IN CONTRACT WITH SIX FLAGS? ______ ______
(E) WAIVER OF SUBROGATION ENDORSEMENT AGAINST SIX FLAGS ______ ______
(F) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ______ ______
(G) HAVE THERE EVER BEEN ANY PROFESSIONAL LIABILITY ACTIONS
AGAINST THE INSURED? IF YES, PLEASE EXPLAIN.___________ ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
HAVE THERE BEEN ANY SETTLEMENTS? IF YES, PLEASE EXPLAIN. ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
HAVE THERE BEEN ANY JUDGEMENTS? IF YES, PLEASE EXPLAIN. ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
NOTE (3) AUTO LIABILITY
(A) ALL OWNED, HIRED AND NON-OWNED VEHICLES? ______ ______
(B) WAIVER OF SUBROGATION AGAINST SIX FLAGS? ______ ______
(C) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ______ ______
NOTE (4) CARE, CUSTODY AND CONTROL
(A) IS COVERAGE INCLUDED FOR DAMAGES TO SIX FLAGS PROPERTY WHILE
BEING RAISED, LIFTED OR LOWERED WHILE USING CRANE, BOOMS OR
HOISTS? ______ ______
NOTE (5) UMBRELLA FORM
(A) IS COVERAGE EXCESS OVER PRIMARY COMMERCIAL LIABILITY AND
EMPLOYERS LIABILITY? ______ ______
(B) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ______ ______
(C) WAIVER OF SUBROGATION AGAINST SIX FLAGS ? ______ ______
</TABLE>
<PAGE>
INSERT 1
1. TEXAS FLAGS, LTD., a Texas limited partnership, of which Six Flags Over
Texas, Inc., a Delaware corporation, is the general partner, having offices at
2201 Road to Six Flags, Arlington, TX 76010.
2. SIX FLAGS OVER GEORGIA, LTD., a Georgia limited partnership, of which Six
Flags Over Georgia, Inc., a Delaware corporation, is the general partner, having
offices at 7561 Six Flags Parkway, Austell, GA 30001.
3. SIX FLAGS ST. LOUIS, fk/a SIX FLAGS OVER MID-AMERICA, a division of Six
Flags Theme Parks Inc., a Delaware corporation, having offices at P.O. Box 60,
Eureka, MO 63025.
4. SIX FLAGS ASTROWORLD, a division of Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 9001 Kirby Drive, Houston, TX 77054.
5. SIX FLAGS WATERWORLD, d/b/a Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 9001 Kirby Drive, Houston, TX 77054.
6. SIX FLAGS GREAT ADVENTURE, a division of Six Flags Theme Parks Inc., a
Delaware corporation, having offices at Route 537, Jackson, NJ 08527.
7. SIX FLAGS MAGIC MOUNTAIN, a division of Six Flags Theme Parks Inc., a
Delaware corporation, having offices at 2101 Magic Mountain Parkway, Valencia,
CA 91355.
8. SIX FLAGS HURRICANE HARBOR, d/b/a Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 2101 Magic Mountain Parkway, Valencia, CA 91355.
9. SIX FLAGS GREAT AMERICA, a division of Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 542 North Route 21, Gurnee, IL 60031.
10. SIX FLAGS HURRICANE HARBOR, d/b/a Six Flags Theme Parks Inc., a Delaware
Corporation, having offices at 1800 E. Lamar, Arlington, TX 76006.
11. SAN ANTONIO THEME PARK, L.P., a Delaware limited partnership, of which Six
Flags San Antonio, L.P., a Delaware limited partnership, is the general partner,
having offices at 17000 IH 10 West, San Antonio, TX 7869-0290.
12. SIX FLAGS THEME PARKS INC., a Delaware corporation, having offices at 400
Interpace Parkway, Building C, Third Floor, Parsippany, NJ 07054-1191.
<PAGE>
AMENDMENT ONE TO LEASE AGREEMENT
(RX TECHNOLOGY)
This amendment (the "Amendment") is entered into as of this 25 day of
March, 1999, by and between SIX FLAGS THEME PARKS INC. ("Six Flags"), a Delaware
corporation, located at 400 Interpace Parkway, Building C, Third Floor,
Parsippany, NJ 07054-1191, on behalf of itself and its division Six Flags Great
Adventure located in Jackson, New Jersey (the "Park"), and RX TECHNOLOGY ("RX"),
a Nevada corporation located at 2264 7th Street. Manderville, LA 70471.
WITNESSETH
WHEREAS, RX entered into a License Agreement (the "Agreement") with the
Park dated as of January 14, 1999, in connection with the operation of Ride
Photo Shops (the "Shops") at the Park; and
WHEREAS, KBK Financial, Inc. ("KBK"), a Delaware corporation, located at
301 Commerce Street, 2200 City Center II, Fort Worth, Texas 76102, has loaned
funds to RX which is secured by, among other things, the Equipment (as defined
in the Agreement) used by RX in the Shops (KBK's loan to RX is hereinafter
called the "Loan"); and
WHEREAS, Six Flags and RX desire to amend the Agreement to provide KBK
with certain rights in the Equipment in the event RX defaults on the Loan; and
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained therein, Six Flags and RX agree as follows:
1. Section 16 of the Agreement entitled "Surrender of Premises" is hereby
amended to add the following language at the end:
Notwithstanding anything to the contrazy herein, upon the
occurrence of an event of default under the documents (collectively,
the "Loan Documents") evidencing, governing and securing certain
loan or loans made by KBK Financial. Inc. ("KBK") to RX which is
secured by, among other things, the Equipment, and KBK promptly
notifies Six Flags of such default, at the expiration or prior
termination of the Agreement, KBK shall be entitled to promptly
remove the Equipment from the Parks, except that Six Flags'
Trademarks at Six Flags' Affiliates' Trademarks shall be removed
from the Equipment and remain at the Park, and KBK shall quit and
surrender the Ride Photo Shop in the Park in good condition,
reasonable wear and tear excepted. Unless Six Flags and 1(3K
otherwise agree if KBK fails to remove the Equipment from the Park
within five (5) days after KBK receives writtten notice of the
termination of this Agreement, then KBK shall be deemed to have
abandoned such property and title to the same shall at that time
vest in Six Flags. Any costs and expenses incurred by Six Flags in
removing such abandoned property (including the reasonable value of
the
<PAGE>
services rendered by Park employees in connection therewith) shall
be paid to Six Flags by KBK promptly following demand therefor.
2. An additional Section 24 shall be added to the Agreement and shall read
as follows:
24. RX Loan Default
In the event RX defau1ts on the Loan Documents prior to the
expiration or other termination of the Agreement, and KBK promptly
notifies Six Flags of this fact, the Park shall thereafter place the
share of Net Revenue that is owed and owing to RX pursuant to
Section 5 of the Agreement in an escrow fund pending either (i)
final determination by KBK and RX as to what should be done with
such funds, or (ii) receipt of an appropriate court order directing
Six Flags on how to distribute the Net Revenue.
3. All other terms and conditions of all the Agreements remain the same.
IN WITNESS WHEREOF, this Amendment has been duly executed by the
parties hereto on the day and year first hereinabove written.
SIX FLAGS THEME PARKS INC.
By: [ILLEGIBLE]
-------------------------
Name: [ILLEGIBLE]
-----------------------
Title: [ILLEGIBLE]
-----------------------
RX TECHNOLOGY, INC.
By: /s/ Donald Rex Gay
-------------------------
Name: Donald Rex Gay
-----------------------
Title: President
----------------------
<PAGE>
EXHIBIT 10.20
Marine World
Roar
<PAGE>
AMENDMENT ONE TO LICENSE AGREEMENT
This amendment (the "Amendment") is entered into as of this 12 day of
April, 1999, by and between PARK MANAGEMENT CORP., INC., ("Park Management"), a
California corporation, located at 2001 Marine World, Vallejo, California
94589-4006 on behalf of itself and its division Six Flags Marine World (the
"Park"), and RX TECHNOLOGIES ("RX"), a Nevada corporation located at 2264 7th
Street, Manderville, LA 70471.
WITNESSETH
WHEREAS, RX entered into a License Agreement (the "Agreement") with the
Park dated as of February 18, 1999, in connection with the operation of Ride
Photo Shops (the "Shops") at the Park; and
WHEREAS, KBK Financial, Inc. ("KBK"), a Delaware corporation, located at
301 Commerce Street, 2200 City Center II, Fort Worth, Texas 76102, has loaned
funds to RX which is secured by. among other things, the Equipment (as defined
in the Agreement) used by RX in thc Shops (KBK's loan to RX is hereinafter
called the "Loan"); and
WHEREAS, Park Management and RX desire to amend the Agreement to provide
KBK with certain rights in the Equipment in the event RX defaults on the Loan;
and
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained therein, Park Management and RX agree as follows:
1. Section 15 of the Agreement entitled "Surrender of Premises" is hereby
amended to add the following language at the end:
Notwithstanding anything to the contrary herein, upon the
occurrence of an event of default under the documents (collectively,
the "Loan Documents") evidencing, governing and securing certain
loan or loans made by KBK Financial, Inc. ("KBK") to RX which is
secured by, among other things, the Equipment, and KBK promptly
notifies Park Management of such default, at the expiration or prior
termination of the Agreement KBK shall be entitled to promptly
remove the Equipment from the Parks, except the Trademarks of Park
Management or its Affiliates shall be removed from the Equipment and
remain at the Park, and KBK shall quit and surrender the Ride Photo
Shop in the Park in good condition, reasonable wear and tear
excepted. Unless Park Management and KBK otherwise agree if KBK
fails to remove the Equipment from the Park within five (5) days
after KBK receives written notice of the termination of this
Agreement, then KBK shall be deemed to have abandoned such property
and title to the same shall at that time vest in Park Management.
Any costs and expenses incurred by Park Management in removing such
abandoned property (including the reasonable value of the services
rendered by Park employees in connection therewith) shall be paid to
Park Management by KBK promptly following demand therefor.
<PAGE>
2. An additional Section 23 shall be added to the Agreement and shall read
as follows:
23. RX Loan Default
In the event RN defaults on the Loan Documents prior to the
expiration or other termination of the Agreement, and KBK promptly
notifies Park Management of this fact, the Park shall thereafter
place the Attraction Fee that is owed and owing to RN pursuant to
Section 5 of the Agreement in an escrow fund pending either (i)
final determination by KBK and RX as to what should be done with
such funds, or (ii) receipt of an appropriate court order directing
Park Management on how to distribute the Attraction Fee.
3. All other terms and conditions of all three Agreements remain the same.
----------
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties
hereto on the day and year first hereinabove written.
PARK MANAGEMENT R CORP., INC.
By: /s/ Thomas J. Mehrmann
------------------------------------
Name: Thomas J. Mehrmann
Title: Vice President & General Manager
RX TECHNOLOGIES, INC.
By: /s/ Donald Rex Gay
------------------------------------
Name: Donald Rex Gay
Title: President
<PAGE>
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made as of this 18th day of February, 1999, by
and between PARK MANAGEMENT CORP., INC., a California Corporation, having
offices at, 2001 Marine World Parkway, Vallejo, California 94589-4006 ("Park
Management"), and RX Technologies, having offices at P.O. Box 9112, Mandeville,
LA 704709112 ("Licensee").
WITNESSETH
WHEREAS, Six Flags Marine World owns operates or manages the theme
amusement facility which is open to the general public and is officially known
as "SIX FLAGS MARINE WORLD";
WHEREAS, Licensee desires to operate a retail concession known as ROAR
Ride Photo (the "Attraction") to sell Park guests the food concession services
("Services") in the Park; and
WHEREAS. Park Management desires to grant Licensee a license to operate
the Attraction in the Park. subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained therein, Park Management and Licensee agree as follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination, Park
Management grants Licensee a license to operate the Attraction in the Park
during the period of time (the "Term") commencing. April 23, 1999 (the
"Commencement Date"), and terminating with the end of the Park's 2001 operating
season (the `Termination Date").
2. OPERATION.
A. Hours of Operation.
Licensee agrees to operate the Attraction during the hours and
days including, Sundays and Holidays that the Park is open for business (the
"Operating Hours").
B. Price of Services.
(i) Licensee agrees that the price for the Attraction will be per
Attachment # A, (the Approved Price List").
(ii) Licensee agrees to make changes to the Approved Price List (the
"Revised Price List") at any time during the Term if Park Management determines
that an adjustment is appropriate and Licensee approves such an adjustment
(iii) Licensee agrees that it shall not make its Services available
to any party free of charge or at a discounted price. Licensee shall, at all
times, charge customers, including, without limitation, family members and
business associates, the price set forth on the Approved Price list for its
Services except as otherwise expressly set forth herein.
C. Method of Sale; Payment Policy.
(i) The services shall be available for sale to Guests of the Park
only at the point of sale. Salesmanship and marketing of services shall be
approved by and meet Park Management standards and not detract from the guest
experience. Park Management shall determine acceptable forms of payment in its
sole discretion. The Licensee will staff the cashiers and maintain tight cash
handling procedures.
1
<PAGE>
(ii) The parties agree that prior to operating they will establish a
procedure for daily reconciliation of that day's receipts for the Attraction. If
Licensee disagrees with the Park as to the venues collected on a specific date,
then it shall give written notice to the Park's Merchandise Manager within
forty-eight (48) hours of notification of revenues collected.
(iii) The Licensee will provide to Park Management, receipt tapes to
be used in conjunction with sales reconciliation to be used as proof of purchase
in conjunction with the sale of the Attraction by Park Management's personnel.
(iv) Licensee understands that the revenue opportunity is directly
correlated with the ride operating. If the ride is down, it is understood there
will be no revenue opportunity. Staffing should be adjusted accordingly. Minor
downtime may occur without notice for short periods. Licensee should be ready at
anytime the ride is ready to return to operation. There is no implied or actual
remuneration agreed to or expected for any length of downtime on the ride
whether such downtime is planned or unplanned.
D. Compliance with Laws.
Licensee agrees that at all times during the term it shall be in
compliance with all laws, rules and regulations with respect to operation of the
Attraction in the Park, including without limitation, all environmental, safety,
and employment laws, rules and regulations.
E. Employees.
(i) Licensee acknowledges that it has no authority to employ persons
on behalf of Park Management and no employees or agents of Licensee shall be
deemed to be employees or agents of Park Management.
(ii) Licensee represents and warrants that it shall, at its sole
cost and expenses, recruit, train, supervise and furnish the services of a staff
of persons and adequate to provide service equal to the demand of park traffic.
(iii) Licensee shall be fully responsible for all Licensee's
employees, including, without limitations, responsibility of all salaries and
other compensation, withholding taxes, workers compensation insurance, and other
required payments in connection with such employees, and shall be in compliance
with all laws, rules and regulations with respect thereto.
(iv) Each prospective employee of Licensee shall complete an
employment application, the form of which must be approved by Park Management,
prior to beginning work in the Park.
(v) Licensee agrees that its employees must attend Park orientation
programs as required by Park Management and must comply with the Park's rules
and regulations, including, without limitation, submission to drug testing, as
maybe required. Licensee further agrees to cause its employees to wear such
uniforms as shall be approved in advance by Park Management. If Park Management
furnishes uniforms to Licensee, Licensee agrees that such uniforms shall be
returned in good condition, normal wear and tear excepted, to Park Management at
the end of the Term. Licensee agrees to pay Park Management for any damage to,
or loss of, such uniforms.
(vi) At the request of Park Management. Licensee shall make
available to Park Management all information obtained with respect to its
employees, including, without limitation, criminal history background checks.
(vii) Licensee agrees to terminate employment at the park for any
employee working in the Park who: (a) is subsequently discovered to have a
criminal history, and, after being advised of the same, Park Management does not
approve said employment, (b) fails to comply with Park rules, or (c) made
material misstatements or omissions on his/her employment application. Licensee
agrees to
2
<PAGE>
indemnify Park Management from and against any claims by Licensee employees
arising from such dismissals.
3. FACILITY.
A. Rights/Responsibilities.
Park Management agrees to provide Licensee employee ID passes to
enter the Park for Licensee's employees in the performance of their duties, and
(ii) Licensee employee access to the Park employee parking areas on a first-come
first-serve basis to be used in the performance of their duties.
B. Maintenance and Repair.
Licensee agrees to properly maintain and keep in good repair and
condition the Facility ("Facility") and/or the equipment within the Attraction,
at its sole cost and expense, except as otherwise expressly set forth herein.
The Facility and/or the Equipment shall be maintained in keeping with the
themeing and overall aesthetics of the Park.
C. Relocation.
Licensee agrees that Park Management shall have the right to
relocate Licensee to another facility in the Park for any reason, provided that
the Licensee approves such relocation, that Park Management agrees to exercise
reasonable care to minimize interference in or to Licensee's operations, and
that Park Management agrees to be responsible for Licensee's reasonable moving
and installation costs associated with the same.
D. Ownership.
It is further understood and agreed that the Equipment and
improvements thereto, whether made by Licensee or Park Management hereunder,
shall remain the property of Licensee; provided however, that if such
improvements have been paid for by Park Management, then such improvements shall
remain the property Park Management.
E. Interference with Park Operations.
Licensee understands that this agreement may not be asserted to
affect or impede Park Management's normal operations.
4. EQUIPMENT.
A. Rights/Responsibilities.
(i) Licensee agrees to provide, at its sole cost and expense, all
equipment and supplies necessary to operate the Attraction (the "Equipment").
(ii) Park Management agrees to provide, at its sole cost and
expense, the installation of sufficient lighting for the Attraction. Licensee
agrees to provide, at its sole cost and expense. the installation of signage for
the Attraction.
B. Delivery, Installation and Removal.
(i) Licensee agrees that it shall be responsible for the shipment,
installation and promptly following the end of the Term, the removal, of the
Equipment at its sole cost and expense except as specifically set forth herein.
3
<PAGE>
(ii) Park Management shall have the right, but not the obligation to
test and inspect the Equipment and the installation and operation of the
Equipment during the Term. Licensee agrees, at its sole cost and expense, to
remedy any problems with the Equipment and installation thereof, upon Park
Management's request, including, without limiting the foregoing, problems
associated with defective design, engineering, workmanship, failure of factory
construction, materials or any components.
C. Additional Equipment/Improvements.
(i) Licensee agrees to install and/or supply additional Equipment,
as determined by mutual agreement of the parties, at no additional cost to Park
Management.
(ii) Licensee agrees to provide signage for the Attraction, leveling
of the surface, and all arrangements and supervision for the construction of a
concrete surface to accommodate the placement of the Attraction. Park Management
will supply to the Licensee, a quote outlining the costs of such construction to
accommodate the Attraction for approval of the Licensee, prior to the
commencement of Construction.
(iii) Licensee agrees to pay to Park Management, an amount equal to
the cost of the construction of the concrete surface to accommodate the
Attraction, as agreed upon by both parties and outlined in the quote provided to
the Licensee as described above.
(iv) Licensee agrees to provide the installation of crowd control
barriers, at its sole cost and expense, sufficient to control the access of
guests to the Attraction.
5. PAYMENT.
A. Revenue and Payment Allocation
Park Management shall collect and record the receipts of the
Attraction. Park Management shall pay Licensee a fee (the "Attraction Fee")
equal to sixty-two percent (62%) of Gross Revenue as set forth below.
B.Gross Revenue.
"Cross Revenue" means gross revenue of the Attraction from point of
purchase sales in the Park during the applicable period. Licensee agrees Park
Management shall have the right to deduct the following from Licensee's share of
the In-Park Gross Revenue: (I) the cost of goods taken from Park Management's
warehouse, to the extent permitted by Park Management, or otherwise, and not
paid for, (ii) the cost of leased Park equipment, if any, (iii) the cost
associated with the damage or loss of uniforms as set forth in more detail in
Section 2(E)(v), (iv) the cost of any bill or charge which is the basis or may
be the basis for a lien against the Facility. Licensee is expected to use all
warehouse systems in the Park.
C. Weekly Calculation.
Park Management will calculate Licensee's share of the Gross Revenue
at the end of the week. Payments shall be directed as set forth in this
Agreement or as Licensee may otherwise direct in writing and shall be payable
nine (9) days from Park Management's calculation thereof. Park Management shall
have no further monetary liability or obligation to Licensee. Payments shall be
made to Licensee at the address indicated in the first paragraph of this
Agreement or as otherwise requested in writing by Licensee.
4
<PAGE>
D.Taxes.
Licensee represents and warrants that all payments from Park
Management to Licensee of Licensee's share of Gross Revenue hereunder are exempt
from any United States federal, state and local taxes or other assessments,
including any withholding taxes. Licensee shall be solely responsible for, and
shall pay when due, assessments arising from or in connection with the receipt
by Licensee of such Gross Revenue.
E. Operating Expenses.
Park Management shall pay all expenses in connection with sales,
cash collection and cash control Licensee shall pay all other operating expenses
of the Attraction.
6. AUDIT RIGHTS.
Until all claims and rights of Licensee have been fully ascertained, fixed
and paid, Park Management shall maintain, in accordance with generally accepted
accounting principles, separate and accurate records of the gross receipts of
the attraction showing in detail the business transacted by Park Management.
Licensee shall have the right, at all reasonable times, to examine and inspect
such records as well as any other business records of Park Management pertaining
to the operation of the Attraction. This section shall survive the termination
of this Agreement.
7. CHANGE IN FINANCIAL CONDITION.
Licensee agrees to notify Park Management promptly of any
significant/material change in its financial condition and/or banking
relationships.
8. TRADEMARKS.
Park Management reserves the right to create an alternative name and/or
logo (collectively, the "Alternate Name") for the Attraction. Park Management
shall exclusively own all right, title and interest in and to such Alternate
Name and all goodwill with respect thereto shall inure to the benefit of Park
Management.
9. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS.
Licensee represents and warrants that:
A. Licensee is, and will during the Term of this Agreement be,
solvent and able to meet its obligations hereunder as when they become due.
B. Licensee shall not use, or suffer or permit any person or persons
to use, any Equipment and/or Facility for any purposes other than set forth
herein without the prior written consent of Park Management, or in any unlawful
manner or for any unlawful purpose.
C. Licensee shall comply with, and use its best efforts to cause its
agents and employees to comply with; all rules and regulations of the Park as
may be in effect from time to time.
D. Licensee will not offer or provide any Services in or from the
Attraction or elsewhere in the Park, without the prior express written
authorization of Park Management. Any uncertainty with respect to the Services
which Licensee is authorized to offer or provide shall be resolved in the manner
which most limits and restricts Licensee's authority, and any reasonable
interpretation of such authority by Park Management shall be binding upon
Licensee.
5
<PAGE>
E. The Attraction, including the Equipment, will be fit and safe for
its intended commercial use, shall be free from defects, shall comply with all
applicable laws, ordinance and regulations.
10. ASSIGNMENT.
The obligations of Licensee herein are personal in nature, and this
Agreement and the obligations of Licensee hereunder shall not be assigned or
otherwise transferred by Licensee, in whole or in part, to any third party
without the prior written consent of Park Management. Park Management may assign
this Agreement to any affiliate of Park Management. For purposes of this
Agreement, the term "assigned" or assignment" shall include, without Limitation,
a consolidation or merger of Licensee with or into another party, a
reorganization or a sale of all or substantially all of the assets of Licensee
to another party, and/or transfer of a controlling interest in Licensee's
business in or to another party.
11. INDEMNITY.
Licensee covenants that it will protect, defend, hold harmless and
indemnify Park Management, its directors, officers, employees, agents,
subsidiaries, affiliates, partners and parent companies harmless from and
against any and all expenses, claims, actions, liabilities, attorney's fees and
costs, damages and losses of any kind or nature whatsoever (including, without
limitation of the foregoing, death or injury to persons and damage to property),
actually or allegedly resulting from or connected with the operations of the
Facility and/or the Attraction (including, without limitation of the foregoing,
goods sold, work done, services rendered or products utilized therein,
advertising and promotion thereof, lack of repair in or about the area occupied
or arising out of or alleged infringement of any patent or claim of patent,
copyright, trademark, service mark or trade name) or from the omission or
commission of any act, lawful or unlawful, or breach of this Agreement by
Licensee or its agents or employees, whether or not such act is within the scope
of employment of such agents or employees. This section shall survive the
termination of the Agreement.
12. INSURANCE.
A. To insure Licensee's performance of the obligations and
warranties set forth herein but no way of limitation, Licensee agrees, at its
expense, to procure and maintain Comprehensive General Liability against claims
for bodily injury, personal injury or death and property damage, Contractual
Liability, Products Liability, Automobile Liability against claims for bodily
injury, personal injury or death and property damage, and Workers' Compensation
Insurance, including any employer liability endorsement (collectively the
"Insurance"), each covering claims occurring upon, in or about the park, and on,
in or about the adjoining streets, sidewalks and passageways, and identifying
this Agreement, the Park and Park Management as being named additional insured
on the Insurance policies described herein, including any renewals of such
Insurance. The Insurance shall remain in full force and effect for the effect of
the Term of this Agreement and one (1) year thereafter, and all such Insurance
shall include a waiver of subrogation against Park Management. This section
shall survive the termination of this Agreement.
B. The insurance shall be written by a company rated "A" or better
by Best Insurance Reports or by such other company consented to in writing by
Park Management. The policy of Insurance shall provide, inter alia, for thirty
- -- (30) days advance notice to Park Management and Licensee of any proposed
modification or cancellation. Upon any cancellation and/or any modification of
any Insurance policy required hereby, and prior to the effective date thereof,
Licensee shall deliver replacement Insurance to Park Management. Licensee shall
forward a Certificate of Insurance promptly after the execution of this
Agreement to Park Management for its reports.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least Three Million Five Hundred Thousand US
Dollars (US $3,500,000) for any claim arising
6
<PAGE>
out of a single occurrence and least Three Million Five Hundred Thousand US
Dollars (US $3,500,000) for all claims in the aggregate.
D. All insurance polices required to be maintained shall be primary
and shall not require contribution from any coverage maintained by Park
Management, and shall not contain, without Park Management's prior written.
E. Licensee shall further, upon request, furnish Park Management
with a certificate from Licensee's insurance carrier certifying that Licensee
has obtained Workers' Compensation Insurance upon its employees, or in an
opinion of counsel satisfactory to Park Management that such coverage is not
required.
F. Licensee understands that Park Management's rights and Licensee's
obligations hereunder shall not be limited or affected by the provisions of this
Section.
13. BREACH.
In the event of breach of any provision of the Agreement by Licensee
or in the event Licensee should become insolvent, file a voluntary petition for
bankruptcy, have a receiver, liquidator, or trustee in bankruptcy appointed over
its affairs, or have a significant material adverse change in its financial
condition, Park Management may, at its option, then or at any time thereafter
while said breach continues, upon fifteen (15) days written notice to Licensee,
terminate this Agreement and the licenses and privileges granted hereby and be
relieved of all further obligation hereunder arising after the date of
termination. In the event the termination hereunder, Licensee shall then quit
and surrender the premises as set forth in this Agreement and the license and
privileges granted hereby shall then terminate; provided, however, that Licensee
shall remain liable for all obligations under this Agreement, and Park
Management may, in addition to any remedy herein provided, recover from Licensee
any damages to which it may be entitled in law or equity, this section shall
survive the termination of this Agreement.
14. NOTICES.
All notices required or permitted to be give hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To Park Management; Park Management
2001 Marine World Parkway Way
Vallejo, California
94589-4006
Attention: Pam Marquez,
Merchandise Manager
To Licensee: RX Technologies
P.O. Box 9112
Mandeville, LA
70470-9112
Attention: D. Rex Gay, President & CEO
Or to such other addresses as the parties may direct by written notice given as
herein above provided. Notice shall be deemed given when received as evidenced
by the return receipt or the date such notice is first refused, if that by the
case.
15. SURRENDER OF PREMISES.
7
<PAGE>
At the expiration or prior termination of this Agreement, Licensee
may. subject to any indebtedness of Licensee to Park Management, promptly remove
Licensee's Equipment from the Park. Unless the parties otherwise agree, if
Licensee fails to remove the Equipment from the park within fifteen (15) days
after the termination of this Agreement, the Licensee shall be deemed to have
abandoned such property, and title to the same shall at that time vest in Park
Management. Licensee promptly following demand therefore shall pay any costs and
expenses incurred by Park Management in removing such abandoned property
(including the reasonable value of services rendered by Park employees in
connection therewith) to Park Management. This section shall survive the
termination of this Agreement.
16. GOVERNING LAW.
A. Each of the parties agree that this Agreement shall be deemed to
have been made, entered into, executed and delivered in the State of California
(the "Specified State"), and that the laws of the Specified State shall govern
the construction, interpretation and enforceability of this Agreement. Should
any dispute arise in connection with the construction, interpretation,
performance or enforcement of the provisions of this Agreement, each of the
parties hereto agrees that any such action shall be brought only in the courts
of the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily with and upon the advice of
competent counsel, (i) submit to personal jurisdiction in the Specified Stare
over any suit, action or proceeding by any person arising from or relation to
this Agreement and the relationship of the parties hereto, (ii) agree that any
such action, suit or proceeding shall be brought in any state or federal court
of competent jurisdiction sitting in the federal court district in the Specified
State, (iii) submits to the jurisdiction of such courts and (iv) to the fullest
extent permitted by law, agree that it will not bring any action, suit or
proceeding in any forum other than provided herein (but nothing herein shall
affect the right of Park Management to bring any action, suit or proceeding in
any other forum to the extent necessary to enforce its rights under this
Agreement).
17. RELATIONSHIP OF THE PARTIES.
Licensee is an independent contractor. Nothing contained in or done
pursuant to this Agreement shall be construed as creating a partnership, agency,
joint employer, joint venture or landlord-tenant relationship. Except as
otherwise expressly provided in this Agreement, no party shall become bound,
with respect to third parties, by any representation, act or omission of the
other.
18. FORCE MAJEURE
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God. In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exit, the rights and
obligations of either party shall continue in full force.
19. PUBLICITY.
A. Park Management shall, at its discretion, develop, direct and
produce any and all advertising and promotion in connection with the Attraction
in the Park for the purpose of advertising, promoting, publicizing and
merchandising the Attraction in the Park. Licensee agrees to cooperate, as
necessary, when requested to provide any advertising or promotion with respect
to the Attraction.
B. Park Management shall have the right to use the Licensee's
Trademarks and the names of any person or entity rendering services on or
associated with the Attraction, as well as any such person or entity's
biography, photographic or non-photographic likeness and recorded voice.
8
<PAGE>
C. Licensee shall not have the right to have or cause to have
sponsors with respect to the Attraction without the prior written approval of
Park Management.
20. PROPRIETARY INFORMATION.
Licensee agrees that this Agreement and all information regarding
the business operations, policies and practices of Park Management or its
affiliates' ("Proprietary Information") acquired or learned in connection with
the activities conducted under this Agreement shall be deemed confidential and
shall be kept in strict confidence under appropriate safeguards. The term
"Proprietary information as used herein, does not include any information that
i5 or becomes generally available to the public other than of a disclosure in
violation of this Agreement. This section shall survive the termination of this
Agreement.
21. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent is
held invalid, will not be invalidated or affected thereby.
22. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules hereto) constitutes
the entire agreement between the parties with respect to the matters that are
subject hereof and supersedes all prior and contemporaneous agreements and
undertakings of the parties pertaining to the subject matter hereof. The
Agreement may not be modified except by written instrument duly executed by the
parties hereto.
IN WITNESS THEREOF, this Licensee/Licensee Agreement has been duly executed by
the parties hereto on the day and year first herein above written.
Licensee: Six Flags Marine World
RX TECHNOLOGIES PARK MANAGEMENT, INC.
By: /s/ D. Rex Gay By: /s/ Thomas J. Mehrmann
------------------------ ----------------------------------
Name: D. Rex Gay Name: Thomas J. Mehrmann
Title: President & CEO Title: Vice President & General Manager
9
<PAGE>
EXHIBIT 10.21
Parque De La Costa
Boomerang
<PAGE>
AGREEMENT
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
This Agreement is between: RX Technology, Inc. of
P.O. Box 24700
New Orleans, LA 70184
Phone: (504) 887-9412
and
Tren de la Costa, S.A.
(For Park de la Costa)
J.B. de la Salle 653 Piso 2
(1642) San Isidro
Provincia de Buenos Aires
Argentina
(54-1) 732-6023
This Agreement concerns the furnishing of a photosystem(s) by RX Technology,
Inc. to Parque de la Costa (The Park) for rides known as:
Flume Ride
Roller Coaster Ride
1. GENERAL STATEMENT
All profits produced by the use of the photosystem(s) supplied by RX
Technology, Inc., less taxes, if applicable, are to be divided between RX
Technology, Inc. and The Park as mutually agreed.
2. TERMS
2.1 The length of this Agreement is to be 3 years with renewal option
for Tren del la Costa for 2 more years. RX Technology, Inc. agrees
to ensure that the photosystem(s) is updated, to the best of its
ability, as more advanced technology becomes available. The Park
agrees to ensure that the ride(s) is kept updated as appropriate.
2.2 The profit share is to be calculated as detailed by the example in
Section 5. The Park should make documentary evidence as to the print
media used.
2.3 The Park will use its own banking method and security when
depositing monies taken in payment of the photographs sold. A credit
transfer to RX Technology, Inc.'s bank account, as instructed, will
take place the First and the Fifteenth of each month. The transfer
shall consist of RX Technology, Inc.'s share of the sale less
applicable taxes.
- Page 1 of 6 -
<PAGE>
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
2.4 The selling price of the photographs shall be fixed by The Park with
a minimum price of $3 (three) for each photograph. The minimum price
of $3 (three) can only be used from Monday to Thursday, during
school period, in Buenos Aires Providence or Capital Federal.-For
the rest of the days, the minimum price shall be $4 (four) for each
photograph. - Any picture sold at $3 will not apply to 600 per day
percentages as outlined in Section 5.
2.5 Upon termination of this Agreement, RX Technology, Inc. shall remove
its equipment that is described under Section 3.2. at its own
expense.
3. EQUIPMENT DESCRIPTION AND INSTALLATION
3.1 Items to be Supplied by The Park
3.1.1 The Park is to supply a photosystem sales building for the
ride(s). It must be equipped with signs, heating, lighting,
electricity, and other furnishings necessary to accommodate
equipment requirements.
3.1.2 The Park is required to provide a suitable pole(s) to enable
the mounting of a camera and its enclosure, fittings and flash
units.
3.1.3 The Park is to provide electrical power, cables and the
necessary trunking/conduit above or below the ground, for the
video and power cables.
3.1.4 The Park is to provide a direct telephone line to the sales
building for its use and that of RX Technology, Inc. The Park
is to pay for its installation and rental. RX Technology, Inc.
is to pay for calls directly associated with software changes
and maintenance.
3.1.5 The Park is to provide electricians to lay cables, put up
lights, etc. under R.X Technology, Inc.'s instruction and
supervision.
3.2 Items to be Supplied by RX Technology, Inc.
3.2.1 RX Technology, Inc. will provide a suitable Theme Park
photosystem(s) comprising:
3.2.1.1 A suitable high quality video camera;
3.2.1.2 Printers; type and number to be decided upon;
3.2.1.3 Color display monitors; type and number to be decided
upon;
3.2.1.4 Electronic point of sales units; number to be decided
upon;
3.2.1.5 A suitable trigger source to detect the ride; and
3.2.1.6 Suitable flash/lighting units.
3.2.2 Installation of the system(s).
3.2.3 Maintenance of RX Technology, Inc.'s photosystem(s)
components.
3.2.4 RX Technology, Inc. must supply any backup equipment needed
and maintain the photosystem functionality.
- Page 2 of 6 -
<PAGE>
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
4. GENERAL POINTS
4.1 The Park must provide insurance coverage for the building, fixtures,
fittings, staff and general public. RX Technology, Inc. is to
provide insurance for its equipment.
4.2 The Park is to make available to RX Technology, Inc. a suitable
technical person(s) who will be instructed in the operation of the
system and who will be available to provide an immediate response to
any technical problems, which may occur during normal operation.
He/she should be from an electrical/computing background and already
be employed by The Park. He/she will be required to communicate with
RX Technology, Inc. should any problem arise. RX Technology, Inc. is
to make available to the Park a suitable technical person, based in
Argentina, who will provide support to the system.
4.3 RX Technology, Inc. must supply equipment maintenance and repair.
4.4 Paper rolls for sales register of the photosystem site(s) are to be
ordered and paid by the Park.
4.5 RX Technology Inc. must install the equipment within six (6) weeks
from the date of reception by RX Technology of a formal
communication of Tren de la Costa that premises are ready to install
the system.
4.6 Tren de la Costa has the option to cancel this contract, if sales of
pictures for the last 12 consecutive months are below 100,000. First
year of operation is assured.
5. PERCENTAGE CALCULATION
The percentages are as follows:
For sales below 600 pictures per day for the two rides (300 pictures per
ride)
PDC: 40% RX: 60%
For sales equal or above 600 pictures per day for the two rides (300
pictures per ride)
PDC: 60% RX: 40%
The percentage will be applied over the Sales after all applicable taxes (Net of
V.A.T. and Gross Sales Tax-- I.V.A. e Ingresos Brutos).
There will be a monthly calculation of the amount to be paid to RX. As an
example we can assume a month with 5 operating days:
- --------------------------------------------------------------------------------
Sales Net Price Net Sales Payable to Payable to
Pictures ($) RX ($) RX(%)
- --------------------------------------------------------------------------------
Day 1 250 3.00 750.00 450.00 60%
Day 2 300 3.00 900.00 540.00 60%
Day 3 400 3.00 1,200.00 720.00 60%
Day 4 601 3.00 1,803.00 721.20 40%
Day 5 700 3.00 2,100.00 840.00 40%
- --------------------------------------------------------------------------------
Month Total 2,251 6,753.00 3,271.20 48%
- --------------------------------------------------------------------------------
- Page 3 of 6 -
<PAGE>
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
6. PROPERTY RIGHTS
6.1 RX Technology, Inc. will retain ownership of those parts of the
photosystem(s) that it supplied, as listed under Section 3.2, at all
times throughout the duration of this Agreement and afterwards.
6.2 The Park will retain ownership of those parts of the photosystem(s)
that it supplied, as listed under Section 3.1, at all times
throughout the duration of this Agreement and afterwards.
7. ON-SITE INSTALLATION RESPONSIBILITIES
The Park will take responsibility for the following:
7.1 Purchase and install a pole for the video camera. It should
accommodate the camera enclosure, lights and remote controlled
pan/tilt units. RX Technology, Inc. will install the camera and
related equipment on the pole.
7.2 Supply electrical power to the camera pole with the breaker switch
located in the sales building area.
7.3 Supply a conduit of at least 3 inches in internal diameter and
install it between the sales building and the camera site.
7.4 Install a photosensor(s) on the ride track and run the trigger
signal wire to the sales building. The Park should ensure that the
photocells are clean, correctly aligned and properly adjusted at all
times.
7.5 The Park should install all wiring to and within the sales building
area and set up display monitors. Video equipment, e.g., video
printers, video monitors, sales stations, etc., will need separate
circuit breakers as detailed in guidelines provided by RX
Technology, Inc. (RX Technology, Inc. will install computers,
imaging system, camera and related equipment.)
7.6 The Park should ensure that the photo building provides proper air
flow and ventilation to printers, monitors and computer room.
8. SYSTEM OPERATION
8.1 Specialized technical knowledge is not necessary for basic operation
of the system. A staff member who is knowledgeable of video
equipment, electrical installation and basic computer concepts
should be available during installation and daily operation.
- Page 4 of 6 -
<PAGE>
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
8.2 System operation consists of turning on the equipment in the
morning, checking for its proper functioning and then selling the
pictures. Each sale station should be individually staffed.
8.3 The Park's appointed manager for the site(s) should become familiar
with all aspects of system operation.
8.4 He/she will be the contact person for communicating with RX
Technology, Inc. personnel.
8.5 RX Technology, Inc. will train the Park's staff in system operation.
The Park's staff should familiarize themselves with and adhere to
equipment manuals and maintenance guidelines.
9. RUNNING COSTS
All running cost expenditures are results from the sale of the
photographs.
9.1 The Park Running Costs
9.1.1 Wages for all counter sales staff specifically used for the
sale of photographs taken on the ride(s).
9.1.2 The telephone line installed in the sales building that is
linked to the photosystem(s) control unit, as detailed in
Section 3.1.4 of this Agreement.
9.1.3 The Park must conduct all routine accounting procedures. These
procedures include submission of taxes to state and local
agencies and the preparation of the First and the Fifteenth of
monthly sales and profit figures. Running costs should be
deducted from the total sale of the ride(s) photographs, after
depositing said monies into its bank account.
9.1.4 The Park is to provide a suitable presentation folder for the
photographs. This folder should facilitate the sales staff
with fast insertion of the photograph.
9.2. RX Technology Running Costs
9.2.1 RX Technology, Inc. must supply The Park with print media for
the video printers and is to be the sole supplier of all video
printer paper.
9.2.2 RX Technology, Inc. must supply any backup equipment needed
and maintain the photosysrem functionality.
10. ACCEPTANCE
10.1 This Agreement, when signed by both parties as indicated herein,
shall constitute the entire Agreement relating to the supply of a
ride photosystem(s) and shall supersede all prior representations or
contracts relating thereto and not incorporated in this Agreement.
No modification or waiver of this Agreement shall be valid unless
made in writing and signed by an authorized officer or
representative of each party.
- Page 5 of 6 -
<PAGE>
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
11. FORCE MAJEURE
Neither party shall be liable to the other for delay or failure to comply
with the provisions of this Agreement when such is caused by strikes,
other labor difficulties, wars, fires, floods, explosions, earthquakes,
government regulations, shortages in material, or any other reasonable
cause beyond either party's control.
12. GOVERNING LAW AND JURISDICTION
12.1 This Agreement shall be governed by, and construed in accordance
with, the laws of the Republic of Argentina.
12.2 Each of the Parties hereby irrevocably submits to the jurisdiction
of Buenos Aires Courts in any action or proceeding arising out of or
relating to this Agreement.
13. STAMP TAXES
Stamp taxes on this Agreement will be supported by each Party by
halves.
The total amount for the contract is estimated at $500,000.
Signed for and on behalf of: Signed for and on behalf of:
R.X Technology, Inc. Tren de la Costa, S.A.
P.O. Box 24700 (For Park de la Costa)
New Orleans, LA 70184 J.B. de la Salle 653 Piso 2
(1642) San Isidro
Provincia de Buenos Aires
Argentina
Signed /s/ Donald Rex Gay Signed /s/ [ILLEGIBLE]
------------------------ ----------------------------------
Title President Title
------------------------- ------------------------------------
Print Name Donald Rex Gay Print Name
-------------------- ------------------------------
Dated 5-30-97 Dated 1/6/97
------------------------- -----------------------------------
- Page 6 of 6 -
<PAGE>
EXHIBIT 10.22
Parque De La Costa
Dragon
<PAGE>
AGREEMENT
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
This Agreement is between: RX Technology, Inc. of
P.O. Box 24700
New Orleans, LA 70184
Phone: (504) 887-9412
and
Tren de la Costa, S.A.
(For Park de la Costa)
J.B. de la Salle 653 Piso 2
(1642) San Isidro
Provincia de Buenos Aires
Argentina
(54-1) 732-6023
This Agreement concerns the furnishing of a photosystem(s) by RX Technology,
Inc. to Parque de la Costa (The Park) for rides known as:
Flume Ride
Roller Coaster Ride
1. GENERAL STATEMENT
All profits produced by the use of the photosystem(s) supplied by RX
Technology, Inc., less taxes, if applicable, are to be divided between RX
Technology, Inc. and The Park as mutually agreed.
2. TERMS
2.1 The length of this Agreement is to be 3 years with renewal option
for Tren del la Costa for 2 more years. RX Technology, Inc. agrees
to ensure that the photosystem(s) is updated, To the best of its
ability, as more advanced technology becomes available. The Park
agrees to ensure that the ride(s) is kept updated as appropriate.
2.2 The profit share is to be calculated as detailed by the example in
Section 5. The Park should make documentary evidence as to the print
media used.
2.3 The Park will use its own banking method and security when
depositing monies taken in payment of the photographs sold. A credit
transfer to RX Technology, Inc.'s bank account, as instructed, will
take place the First and the Fifteenth of each month. The transfer
shall consist of RX Technology, Inc.'s share of the sale less
applicable taxes.
- Page 1 of 6 -
<PAGE>
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
2.4 The selling price of the photographs shall be fixed by The Park with
a minimum price of $3 (three) for each photograph. The minimum price
of $3 (three) can only be used from Monday to Thursday, during
school period, in Buenos Aires Providence or Capital Federal.-For
the rest of the days, the minimum price shall be $4 (four) for each
photograph. - Any picture sold at $3 will not apply to 600 per day
percentages as outlined in Section 5.
2.5 Upon termination of this Agreement, RX Technology, Inc. shall remove
its equipment that is described under Section 3.2. at its own
expense.
3. EQUIPMENT DESCRIPTION AND INSTALLATION
3.1 Items to be Supplied by The Park
3.1.1 The Park is to supply a photosystem sales building for the
ride(s). It must be equipped with signs, heating, lighting,
electricity, and other furnishings necessary to accommodate
equipment requirements.
3.1.2 The Park is required to provide a suitable pole(s) to enable
the mounting of a camera and its enclosure, fittings and flash
units.
3.1.3 The Park is to provide electrical power, cables and the
necessary trunking/conduit above or below the ground, for the
video and power cables.
3.1.4 The Park is to provide a direct telephone line to the sales
building for its use and that of RX Technology, Inc. The Park
is to pay for its installation and rental. RX Technology, Inc.
is to pay for calls directly associated with software changes
and maintenance.
3.1.5 The Park is to provide electricians to lay cables, put up
lights, etc. under R.X Technology, Inc.'s instruction and
supervision.
3.2 Items to be Supplied by RX Technology, Inc.
3.2.1 RX Technology, Inc. will provide a suitable Theme Park
photosystem(s) comprising:
3.2.1.1 A suitable high quality video camera;
3.2.1.2 Printers; type and number to be decided upon;
3.2.1.3 Color display monitors; type and number to be decided
upon;
3.2.1.4 Electronic point of sales units; number to be decided
upon;
3.2.1.5 A suitable trigger source to detect the ride; and
3.2.1.6 Suitable flash/lighting units.
3.2.2 Installation of the system(s).
3.2.3 Maintenance of RX Technology, Inc.'s photosystem(s)
components.
3.2.4 RX Technology, Inc. must supply any backup equipment needed
and maintain the photosystem functionality.
- Page 2 of 6 -
<PAGE>
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
4. GENERAL POINTS
4.1 The Park must provide insurance coverage for the building, fixtures,
fittings, staff and general public. RX Technology, Inc. is to
provide insurance for its equipment.
4.2 The Park is to make available to RX Technology, Inc. a suitable
technical person(s) who will be instructed in the operation of the
system and who will be available to provide an immediate response to
any technical problems, which may occur during normal operation.
He/she should be from an electrical/computing background and already
be employed by The Park. He/she will be required to communicate with
RX Technology, Inc. should any problem arise. RX Technology, Inc. is
to make available to the Park a suitable technical person, based in
Argentina, who will provide support to the system.
4.3 RX Technology, Inc. must supply equipment maintenance and repair.
4.4 Paper rolls for sales register of the photosystem site(s) are to be
ordered and paid by the Park.
4.5 RX Technology Inc. must install the equipment within six (6) weeks
from the date of reception by RX Technology of a formal
communication of Tren de la Costa that premises are ready to install
the system.
4.6 Tren de la Costa has the option to cancel this contract, if sales of
pictures for the last 12 consecutive months are below 100,000. First
year of operation is assured.
5. PERCENTAGE CALCULATION
The percentages are as follows:
For sales below 600 pictures per day for the two rides (300 pictures per
ride)
PDC: 40% RX: 60%
For sales equal or above 600 pictures per day for the two rides (300
pictures per ride)
PDC: 60% RX: 40%
The percentage will be applied over the Sales after all applicable taxes (Net of
V.A.T. and Gross Sales Tax-- I.V.A. e Ingresos Brutos).
There will be a monthly calculation of the amount to be paid to RX. As an
example we can assume a month with 5 operating days:
- --------------------------------------------------------------------------------
Sales Net Price Net Sales Payable to Payable to
Pictures ($) RX ($) RX(%)
- --------------------------------------------------------------------------------
Day 1 250 3.00 750.00 450.00 60%
Day 2 300 3.00 900.00 540.00 60%
Day 3 400 3.00 1,200.00 720.00 60%
Day 4 601 3.00 1,803.00 721.20 40%
Day 5 700 3.00 2,100.00 840.00 40%
- --------------------------------------------------------------------------------
Month Total 2,251 6,753.00 3,271.20 48%
- --------------------------------------------------------------------------------
- Page 3 of 6 -
<PAGE>
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
6. PROPERTY RIGHTS
6.1 RX Technology, Inc. will retain ownership of those parts of the
photosystem(s) that it supplied, as listed under Section 3.2, at all
times throughout the duration of this Agreement and afterwards.
6.2 The Park will retain ownership of those parts of the photosystem(s)
that it supplied, as listed under Section 3.1, at all times
throughout the duration of this Agreement and afterwards.
7. ON-SITE INSTALLATION RESPONSIBILITIES
The Park will take responsibility for the following:
7.1 Purchase and install a pole for the video camera. It should
accommodate the camera enclosure, lights and remote controlled
pan/tilt units. RX Technology, Inc. will install the camera and
related equipment on the pole.
7.2 Supply electrical power to the camera pole with the breaker switch
located in the sales building area.
7.3 Supply a conduit of at least 3 inches in internal diameter and
install it between the sales building and the camera site.
7.4 Install a photosensor(s) on the ride track and run the trigger
signal wire to the sales building. The Park should ensure that the
photocells are clean, correctly aligned and properly adjusted at all
times.
7.5 The Park should install all wiring to and within the sales building
area and set up display monitors. Video equipment, e.g., video
printers, video monitors, sales stations, etc., will need separate
circuit breakers as detailed in guidelines provided by RX
Technology, Inc. (RX Technology, Inc. will install computers,
imaging system, camera and related equipment.)
7.6 The Park should ensure that the photo building provides proper air
flow and ventilation to printers, monitors and computer room.
8. SYSTEM OPERATION
8.1 Specialized technical knowledge is not necessary for basic operation
of the system. A staff member who is knowledgeable of video
equipment, electrical installation and basic computer concepts
should be available during installation and daily operation.
- Page 4 of 6 -
<PAGE>
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
8.2 System operation consists of turning on the equipment in the
morning, checking for its proper functioning and then selling the
pictures. Each sale station should be individually staffed.
8.3 The Park's appointed manager for the site(s) should become familiar
with all aspects of system operation.
8.4 He/she will be the contact person for communicating with RX
Technology, Inc. personnel.
8.5 RX Technology, Inc. will train the Park's staff in system operation.
The Park's staff should familiarize themselves with and adhere to
equipment manuals and maintenance guidelines.
9. RUNNING COSTS
All running cost expenditures are results from the sale of the
photographs.
9.1 The Park Running Costs
9.1.1 Wages for all counter sales staff specifically used for the
sale of photographs taken on the ride(s).
9.1.2 The telephone line installed in the sales building that is
linked to the photosystem(s) control unit, as detailed in
Section 3.1.4 of this Agreement.
9.1.3 The Park must conduct all routine accounting procedures. These
procedures include submission of taxes to state and local
agencies and the preparation of the First and the Fifteenth of
monthly sales and profit figures. Running costs should be
deducted from the total sale of the ride(s) photographs, after
depositing said monies into its bank account.
9.1.4 The Park is to provide a suitable presentation folder for the
photographs. This folder should facilitate the sales staff
with fast insertion of the photograph.
9.2. RX Technology Running Costs
9.2.1 RX Technology, Inc. must supply The Park with print media for
the video printers and is to be the sole supplier of all video
printer paper.
9.2.2 RX Technology, Inc. must supply any backup equipment needed
and maintain the photosysrem functionality.
10. ACCEPTANCE
10.1 This Agreement, when signed by both parties as indicated herein,
shall constitute the entire Agreement relating to the supply of a
ride photosystem(s) and shall supersede all prior representations or
contracts relating thereto and not incorporated in this Agreement.
No modification or waiver of this Agreement shall be valid unless
made in writing and signed by an authorized officer or
representative of each party.
- Page 5 of 6 -
<PAGE>
BOLSA DE COMERCIO DE BAHIA BLANCA
INSTRUMENTO
1713
REGISTRADO
11. FORCE MAJEURE
Neither party shall be liable to the other for delay or failure to comply
with the provisions of this Agreement when such is caused by strikes,
other labor difficulties, wars, fires, floods, explosions, earthquakes,
government regulations, shortages in material, or any other reasonable
cause beyond either party's control.
12. GOVERNING LAW AND JURISDICTION
12.1 This Agreement shall be governed by, and construed in accordance
with, the laws of the Republic of Argentina.
12.2 Each of the Parties hereby irrevocably submits to the jurisdiction
of Buenos Aires Courts in any action or proceeding arising out of or
relating to this Agreement.
13. STAMP TAXES
Stamp taxes on this Agreement will be supported by each Party by
halves.
The total amount for the contract is estimated at $500,000.
Signed for and on behalf of: Signed for and on behalf of:
R.X Technology, Inc. Tren de la Costa, S.A.
P.O. Box 24700 (For Park de la Costa)
New Orleans, LA 70184 J.B. de la Salle 653 Piso 2
(1642) San Isidro
Provincia de Buenos Aires
Argentina
Signed /s/ Donald Rex Gay Signed /s/ [ILLEGIBLE]
------------------------ ----------------------------------
Title President Title
------------------------- ------------------------------------
Print Name Donald Rex Gay Print Name
-------------------- ------------------------------
Dated 5-30-97 Dated 1/6/97
------------------------- -----------------------------------
- Page 6 of 6 -
<PAGE>
EXHIBIT 10.23
Silverwood
Tremors
<PAGE>
AGREEMENT
This Agreement is between: RX Technology (SM)
P.O. Box 9112
Mandeville, LA 70470-9112
United States of America
Phone:(504) 727-9412
and
Silverwood
26225 North Hwy. 95
Athol, ID 83801
United States of America
Phone (208) 683-3400
This Agreement concerns the furnishing of a photosystem(s) by RX Technology(SM)
to "The Park" for a ride(s) known as:
Tremmors - "Roller Coaster"
1. Responsibilities
1.1 RX Techno1ogy(SM)
A. Provide a Theme Park photosystem(s) each comprising of:
1) Complete photo-imaging system
2) Video camera(s),
3) Printers,
4) Color display monitors,
5) Electronic Point of Sale (POS) units,
6) Cash registers,
7) A suitable trigger source to detect the ride and
8) Suitable flash/lighting units.
B. Provide video cables from the camera pole to the
photobuilding.
C. Provide backup equipment for unexpected equipment malfunction,
thereby avoiding prolonged delay in repair. Backup equipment
required to be determined by RX Technology(SM).
D. Properly and completely install the photosystem(s).
E. Provide technical support and maintenance to ensure proper
functioning of the photosystem, to the best of its ability.
F. Provide complete initial training of the staff, including
support after opening.
Initial: [ILLEGIBLE]
- Page 1 of 6 -
<PAGE>
G. Provide generic white folders for the photographs. Folders
must allow fast insertion of the photographs by the sales
staff.
H. Provide "The Park" with operational and troubleshooting
guides.
I. Supply the print media and ink cartridges for the video
printers. RX Technology(SM) to be the sole supplier of all
video printer paper.
J. Supply register paper rolls and ink cartridges for sales
register printers.
1.2 "The Park"
A. Provide liability and general business insurance coverage for
the photobuildings and its contents.
B. Conduct all routine accounting procedures. These procedures
include any submission of taxes to state and local agencies
and the preparation of weekly sales and revenue figures.
C. Staff and operate all RX Technology(SM)" photosystem
operations.
D. Provide a suitable building, its themeing and signage. Provide
signage for photo sales.
E. Supply electrical wiring from the sales building to the camera
pole with the breaker switch located in the sales area.
F. Supply electrical wiring to the sales building and separate
circuit breakers as detailed in guidelines provided by RX
Technology(SM).
G. Provide an electrician or other park employee or contractor to
lay and pull cables, put up lights, etc. under instruction and
supervision of RX Technology(SM).
H. Provide and install a direct telephone line to the sales
building.
I. Purchase and install a suitable pole(s) - for the camera,
flash units and trigger sensor.
J. Supply trunking/conduit of at least 2 inches in internal
diameter and install it between the sales building and the
camera site, above or below the ground.
Initial: [ILLEGIBLE]
- Page 2 of 6 -
<PAGE>
2. Terms and Conditions
A. The length of this Agreement is to be for a period of 3 years. RX
Technology(SM) agrees to ensure that the photosystem(s) is updated,
to the best of its ability. "The Park" agrees to ensure that the
ride(s) is kept updated as appropriate.
B. In the event a ride is closed RX Technology(SM) and the Park may
elect to reposition the system. Modification and changes required
will be negotiated at the then current time and materials charges.
C. Both parties agree that neither shall be held liable for loss of
income due to ride or system malfunction.
D. "The Park" will use its own banking method and security when
depositing monies taken in payment of the photographs sold. RX
Technology(SM) share of the revenue will be sent on a weekly basis
to RX Technology(SM) at P.O. Box 1117, Fort Worth, TX 76101.
E. The selling price of the photographs shall be determined by mutual
agreement between "The Park" and RX Technology(SM). It is agreed
that the selling price can vary throughout the season.
F. Due to any unforeseen circumstances if ridership results in less
than an average of 100 prints per day over a 2 week period, RX
Technology(SM) retains the option to withdraw the photosystem.
G. Upon termination of this Agreement, RX Technology(SM) shall remove
its property from park grounds.
H. Upon termination of the summer season RX Technology(SM) shall remove
its property from park grounds and re-install and test at the
beginning of the next season. We will perform routine maintenance on
the equipment and update as required.
I. WHEREAS, KBK Financial, Inc. ("KBK"), a Delaware corporation,
located at 301 Commerce Street, 2200 City Center II, Fort Worth,
Texas 76102, has loaned funds to RX which is secured by, among other
things, the Equipment (as defined in the Agreement) used by RX in
the Shop (KBK's loan to RX is hereafter called the "Loan"); and
WHEREAS, Silverwood and RX desire to amend the Agreement to provide
KBK with certain rights in the Equipment in the event RX defaults on
the Loan;
NOW, THEREFORE, Silverwood and RX agree as follows:
Notwithstanding anything to the contrary herein, upon the occurrence
of an event of default under the documents (collectively, the "Loan
Documents:") evidencing, governing and securing certain loan or
loans made by KBK, Financial, Inc. ("KBK") to RX which is secured
by, among other things, the Equipment owned and provided by RX (the
"RX Equipment"), and KBK promptly notifies Silverwood of such
default, at the expiration or
Initial: [ILLEGIBLE]
- Page 3 of 6 -
<PAGE>
prior termination of the Agreement, KBK shall be entitled to
promptly remove the RX Equipment from the Parks, except that
Silverwood' Trademarks of Silverwood' Affiliates' Trademarks shall
be removed from the RX Equipment and remain at the Park, and KBK
shall quit and surrender the photobuildings in the Park in good
condition, reasonable wear and tear expected. Unless Silverwood and
KBK otherwise agree, if KBK fails to remove the RX Equipment from
the Park within five (5) days after KBK receives written notice of
the termination of this Agreement, then KBK shall be deemed to have
abandoned such property and title to the same shall at that time
vest in Silverwood. Any costs and expenses incurred by Silverwood in
removing such abandoned property (including the reasonable value of
the services rendered by the Park employees in connection therewith)
shall be paid to Silverwood by KBK promptly following demand
therefor.
In the event RX defaults on the Loan Documents prior to the
expiration or other termination of the Agreement, and KBK promptly
notifies Silverwood of this fact, the Park shall thereafter place
the share of Gross Revenue that is owed and owing to RX pursuant to
Section 4 of the Agreement in an escrow fund pending either (I)
final determination by KBK and RX as to what should be done with
such funds, or (ii) receipt of an appropriate court order directing
Silverwood on how to distribute RX's share of the Gross Revenue.
3. General Statement
A. All revenue produced by the use of the photosystem(s) supplied by RX
Technology(SM) are to be divided between RX Technology(SM) and "The
Park" as agreed.
B. RX Technology(SM) agrees to license the use of its technology in
"The Park" with no additional fees other than those described in
this Agreement.
C. Installation dates of the photosystem equipment on the
aforementioned rides is to be determined based upon availability of
the sales building and completion of construction and electrical
requirements. Target opening date is Spring 1999.
4. Revenue Distribution
The gross revenue calculation is to be based on the formula used in the
following example:
THESE $ AMOUNTS ARE USED AS AN EXAMPLE ONLY
Total Sale $8.50
-less 7% sales tax -$ .55
------
Retail Sales Price $7.95
55% Payment to "The Park" -$4.37
RX Technology (RX pays for print media) $3.58
Initial: [ILLEGIBLE]
- Page 4 of 6 -
<PAGE>
5. Property Rights
A. RX Technology(SM) will retain ownership of those parts of the
photosystem(s) that it supplies at all times throughout the duration
of this Agreement and afterwards.
B. "The Park" will retain ownership of those parts of the
photosystem(s) that it supplied, as detailed in this Agreement, at
all times throughout the duration of this Agreement and afterwards.
6. System Operation
A. "The Park" understands and agrees to leave the RX Technology(SM)
photosystem equipment on at all times; 24-hours a day, 7 days a week
-- including days when "The Park" is not open to the public.
Temperature must remain constant at all times as fluctuations are
extremely harmful to the photosystem. Staff will be instructed to
leave the system in a "sleep" mode before leaving each day.
B. Proper care and handling of the RX Technology(SM) photosystem will
prevent unnecessary malfunctions. It is imperative that our manuals
and guides be closely adhered to at all times by all Park staff at
all times.
7. Acceptance
A. This Agreement, when signed by both parties as indicated herein,
shall constitute the entire Agreement relating to the supply of a
ride photosystem(s) and shall supersede all prior representations or
contracts relating thereto and not incorporated in this Agreement.
No modification or waiver of this Agreement shall be valid unless
made in writing and signed by an authorized officer or
representative of each party.
B. "The Park" has been made aware of this Agreement and grants the
authority to engage in aforementioned business activities with RX
Technology(SM). A representative of "The Park" shall acknowledge
this Agreement by signing where indicated below.
8. Notices
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or
certified mail, postage prepaid, return receipt requested, addressed as
listed below.
Initial: [ILLEGIBLE]
- Page 5 of 6 -
<PAGE>
9. Force Majeure
Neither party shall be liable to the other for delay or failure to comply
with the provisions of this Agreement when such is caused by strikes,
other labor difficulties, wars, fires, floods, explosions, earthquakes,
government regulations, shortages in material, or any other reasonable
cause beyond either party's control.
Signed for and on behalf of: Signed for and on behalf of:
RX Technology(SM) Inc. Silverwood
P.O. Box 9112 26225 North Highway 95
Mandeville, LA 70470-9112 Athol, ID 83801
Signed /s/ Donald Rex Gay Signed /s/ David Norton
-------------------------- ----------------------------------
Print Name Donald Rex Gay Print Name David Norton
---------------------- ------------------------------
Date 4-22-99 Date 4/27/99
---------------------------- ------------------------------------
Initial: [ILLEGIBLE]
- Page 6 of 6 -
<PAGE>
EXHIBIT 10.24
Visonland
Rapid River
<PAGE>
AGREEMENT
This Agreement is between: RX Technology(SM)
P.O. Box 9112
Mandeville, LA 70470-9112
United States of America
Phone: (504) 727-9412
and
Visionland
This Agreement concerns the furnishing of a photosystem(s) by RX Technology(SM)
to "The Park" for a ride(s) known as:
"River Rapids Ride"
1. Responsibilities
1.1 RX Technology(SM)
A. Provide a Theme Park photosystem(s) each comprising of:
1) Complete photo-imaging system
2) Video camera(s),
3) Printers,
4) Color display monitors,
5) Electronic Point of Sale (POS) units,
6) Cash registers,
7) A suitable trigger source to detect the ride and
8) Suitable flash/lighting units.
B. Provide video cables from the camera pole to the
photobuilding.
C. Provide backup equipment for unexpected equipment malfunction,
thereby avoiding prolonged delay in repair. Backup equipment
required to be determined by RX Technology(SM).
D. Properly and completely install the photosystem(s).
E. Provide technical support and maintenance to ensure proper
functioning of the photosystem, to the best of its ability.
Initial: [ILLEGIBLE]
- Page 1 of 5 -
<PAGE>
F. Provide complete initial training of the staff including
support after opening.
G. Provide "The Park" with operational and troubleshooting
guides.
H. Supply the print media and ink cartridges for the video
printers. RX Technology(SM) to be the sole supplier of all
video printer paper.
I. Supply register paper rolls and ink cartridges for sales
register printers.
1.2 "The Park"
A. Provide liability and general business insurance coverage for
the photobuildings and its contents.
B. Provide a suitable sales building for each photosystem - as
agreed.
C. Conduct all routine accounting procedures. These procedures
include any submission of taxes to state and local agencies
and the preparation of weekly sales and revenue figures.
D. Staff and operate all RX Technology(SM) photosystem
operations.
E. Provide themeing and signage for the sales building. Provide
signage for photo sales.
F. Provide a suitable presentation folder for the photographs.
Folders must allow fast insertion of the photographs by the
sales staff. (Samples available in Appendix "B")
G. Supply electrical wiring from the sales building to the camera
pole with the breaker switch located in the sales area.
H. Supply electrical wiring to the sales building and separate
circuit breakers as detailed in guidelines provided by RX
Technology(SM).
I. Provide an electrician or other park employee or contractor to
lay and pull cables, put up lights, etc. under instruction and
supervision of RX Technology(SM).
J. Provide and install a direct telephone line to the sales
building.
K. Purchase and install a suitable pole(s) - for the camera,
flash units and trigger sensor.
L. Supply trunking/conduit of at least 2 inches in internal
diameter and install it between the sales building and the
camera site, above or below the ground.
Initial: [ILLEGIBLE]
- Page 2 of 5 -
<PAGE>
2. Terms and Conditions
A. The length of this Agreement is to be for a period of 5 years. RX
Technology(SM) agrees to ensure that the photosystem(s) is updated,
to the best of its ability. "The Park" agrees to ensure that the
ride(s) is kept updated as appropriate.
B. In the event a ride is closed RX Technology(SM) and the Park may
elect to reposition the system. Modification and changes required
will be negotiated at the then current time and materials charges.
C. Both parties agree that neither shall be held liable for loss of
income due to ride or system malfunction.
D. "The Park" will use its own banking method and security when
depositing monies taken in payment of the photographs sold. RX
Technology(SM) share of the revenue will be sent on a weekly basis
to RX Technology(SM) at P.O. Box 9112, Mandeville, LA 70470.
E. The selling price of the photographs shall be determined by mutual
agreement between "The Park" and RX Technology(SM). It is agreed
that the selling price can vary throughout the season.
G. Upon termination of this Agreement, RX Technology(SM) shall remove
its property from park grounds.
H. Upon termination of the summer season RX Technology(SM) shall remove
its property from park grounds and re-install and test at the
beginning of the next season. We will perform routine maintenance on
the equipment and update as required.
3. General Statement
A. All revenue produced by the use of the photosystem(s) supplied by RX
Technology(SM) are to be divided between RX Technology(SM) and "The
Park" as agreed.
B. RX Technology(SM) agrees to license the use of its technology in
"The Park" with no additional fees other than those described in
this Agreement.
C. Installation dates of the photosystem equipment on the
aforementioned rides is to be determined based upon availability of
the sales building and completion of construction and electrical
requirements. Target opening date is Spring 1999.
Initial: [ILLEGIBLE]
- Page 3 of 5 -
<PAGE>
4. Revenue Distribution
The gross revenue calculation is to be based on the formula used in the
following example:
THESE FIGURES ARE USED AS AN EXAMPLE ONLY
Total Sale
$8.50
-less 7% sales tax -$ .55
------
------
Retail Sales Price $7.95
40% Payment to "The Park" -$3.18
RX Technology (RX pays for print media) $4.77
5. Property Rights
A. RX Technology(SM) will retain ownership of those parts of the
photosystem(s) that it supplies at all times throughout the duration
of this Agreement and afterwards.
B. "The Park" will retain ownership of those parts of the
photosystem(s) that it supplied, as detailed in this Agreement, at
all times throughout the duration of this Agreement and afterwards.
6. System Operation
A. "The Park" understands and agrees to leave the RX Technology(SM)
photosystem equipment on at all times; 24-hours a day, 7 days a week
-- including days when "The Park" is not open to the public.
Temperature must remain constant at all times as fluctuations are
extremely harmful to the photosystem. Staff will be instructed to
leave the system in a "sleep" mode before leaving each day.
B. Proper care and handling of the RX Technology(SM) photosystem will
prevent unnecessary malfunctions. It is imperative that our manuals
and guides be closely adhered to at all times by all Park staff at
all times.
Initial: [ILLEGIBLE]
- Page 4 of 5 -
<PAGE>
7. Acceptance
A. This Agreement, when signed by both parties as indicated herein,
shall constitute the entire Agreement relating to the supply of a
ride photosystem(s) and shall supersede all prior representations or
contracts relating thereto and not incorporated in this Agreement No
modification or waiver of this Agreement shall be valid unless made
in writing and signed by an authorized officer or representative of
each party.
B. "The Park" has been made aware of this Agreement and grants the
authority to engage in aforementioned business activities with RX
Technology(SM). A representative of "The Park" shall acknowledge
this Agreement by signing where indicated below.
8. Notices
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or
certified mail, postage prepaid, return receipt requested, addressed as
listed below.
9. Force Majeure
Neither party shall be liable to the other for delay or failure to comply
with the provisions of this Agreement when such is caused by strikes,
other labor difficulties, wars, fires, floods, explosions, earthquakes,
government regulations, shortages in material, or any other reasonable
cause beyond either party's control.
Signed for and on behalf of: Signed for and on behalf of:
RX Technology(SM) Inc. Visionland
P.O. Box 9112
Mandeville, LA 70470-9112
Signed /s/ Donald Rex Gay Signed /s/ GR Langford
------------------------- ----------------------------------
Print Name Donald Rex Gay Print Name GR Langford
--------------------- ------------------------------
Date 2-4-99 Date 2/4/99
-------------------------- -----------------------------------
Initial: [ILLEGIBLE]
- Page 5 of 5 -
<PAGE>
EXHIBIT 10.25
Kennywood
Front Gate
<PAGE>
AGREEMENT
This Agreement is between: RX TechnologySM
P.O. Box 9112
Mandeville, LA 70470-9112
United States of America
Phone: (504) 727-9412
and
Kennywood Entertainment Partners, L.P. ("The Park")
4800 Kennvwood Boulevard
West Mifflin, PA 15122-2399
This Agreement conceRXs the fuRXishing of a photosystem(s) by RX TechnologySA"
to "The Park" for a ride(s) known as:
1. Log Jammer
2. Front gate system utilizing digital cameras to
co-exist with ride photo system
1.Responsibilities
1.1 RX TechnologySM
A. Provide a Theme Park photosystem(s) each comprising of:
1) Complete photo-imaging system
2) Video camera(s),
3) Printers,
4) Color display monitors,
5) Electronic Point of Sale (POS) units,
6) Cash registers,
7) A suitable trigger source to detect the ride and
8) Suitable flash/lighting units.
B. Provide video cables from the camera pole to the
photobuilding.
C. Provide backup equipment for unexpected equipment malfunction,
thereby avoiding prolonged delay in repair. Backup equipment
required to be determined by RX TechnologySM
D. Properly and completely install the photosystem(s).
E. Provide technical support and maintenance to ensure proper
functioning of the photosystem, to the best of its ability.
F Provide complete initial training of the staff, including
support after opening.
-Page l of 6-
<PAGE>
G. Provide generic white folders for the photographs. Folders
must allow fast insertion of the photographs by the sales
staff.
H. Provide "The Park" with operational and troubleshooting
guides.
I. Supply the print media and ink cartridges for the video
printers. RX TechnologySM to be the sole supplier of all
video printer paper.
J. Supply register paper rolls and ink cartridges for sales
register printers.
1.2 "The Park"
A. Provide liability and general business insurance coverage for
the photobuildings and its contents.
B. Conduct all routine accounting procedures. These procedures
include any submission of taxes to state and local agencies
and the preparation of weekly sales and revenue figures.
C. Staff and operate all RX TechnologySM photosystem operations.
D. Provide a suitable building, its themeing and signage. Provide
signage for photo sales.
E. Supply electrical wiring from the sales building to the camera
pole with the breaker switch located in the sales area.
F. Supply electrical wiring to the sales building and separate
circuit breakers as detailed in guidelines provided by RX
TechnologySM
G. Provide an electrician or other park employee or contractor to
lay and pull cables, put up lights, etc. under instruction and
supervision of RX Technology.
H. Provide and install a direct telephone line to the sales
building.
I. Purchase and install a suitable pole(s) - for the camera,
flash units and trigger sensor.
J. Supply trunking/conduit of at least 2 inches in inteRXal
diameter and install it between the sales building and the
camera site, above or below the ground.
-Page 2 of 6-
<PAGE>
2. Terms and Conditions
A. The length of this Agreement is to be for a priod of 4 years.
RX TechnologySM agrees to ensure that the photosystem(s) is
updated, to the best of its ability. "The Park" agrees to
ensure that the ride(s) is kept updated as appropriate.
B. In the event a ride is closed RX TechnologySM and the Park may
elect to reposition the system. Modification and changes
required will be negotiated at the then current time and
materials charges.
C. Both parties agree that neither shall be held liable for loss
of income due to ride or system malfunction.
D. "The Park" will use its own banking method and security when
depositing monies taken in payment of the photographs sold. RX
TechnologySM share of the revenue will be sent on a weekly
basis to RX TechnologySM at P.O. Box 1117, Fort Worth, TX
76101.
E. The selling price of the photographs shall be determined by
mutual agreement between "The Park" and RX TechnologySM It is
agreed that the selling price can vary throughout the season.
F. Due to any unforeseen circumstances if ridership results in
less than an average of 50 prints per day over a 2 week
period, RX Technology~M retains the option to withdraw the
photosystem to RX.
G. Upon termination of this Agreement, RX TechnologySM shall
remove its property from park grounds.
H. Upon termination of the summer season RX TechnologySM shall
remove its property from park grounds and re-install and test
at the beginning of the next season. We will perform routine
maintenance on the equipment and update as required.
I. WHEREAS, KBK Financial, Inc. ("KBK"), a Delaware
corporation, located at 301 Commerce Street, 2200 City Center
II, Fort Worth, Texas 76102, has loaned funds to RX which is
secured by, among other things, the Equipment (as defined in
the Agreement) used by RX in the Shop (KBK's loan to RX is
hereafter called the "Loan"); and
WHEREAS, The Park and RX desire to amend the Agreement to
provide KBK with certain rights in the Equipment in the event
RX defaults on the Loan;
NOW, THEREFORE, The Park and RX agree as follows:
Notwithstanding anything to the contrary herein, upon the
occurrence of an event of default under the documents
(collectively, the "Loan Documents:") evidencing, governing
and securing certain loan or loans made by KBK, Financial,
Inc. ("KBK") to RX which is secured by, among other things,
the Equipment owned and provided by RX (the "RX Equipment"),
and KBK promptly notifies The Park of such default, at the
expiration or prior termination of the Agreement, KBK shall
be entitled to promptly remove the RX Equipment from the Park,
except that The Park Trademarks of The Park `Affiliates'
-Page 3 of 6-
<PAGE>
Exhibit D
Exclusive Rights
If exclusive rights are agreed upon, describe carefully here. If not, delete the
bracketed text in the Agreement, delete this Exhibit and re-title Exhibits E and
F as D and E, respectively. Re-title references to these Exhibits in text of
Agreement also.
N/A
<PAGE>
Exhibit E
Equipment
Description
-----------
Portable Themed Building
RX Technology Video Equipment
Multi-shot flash System, Multiple shot flash burst
RX Technology Super Sensor to trigger picture taking
RX Technology Trigger Control Unit Video Printers
RX Technology POS Sales Station RX Technology Imaging
Computer System
RX Technology Camera Equipment at Pole
<PAGE>
Exhibit F
Early Termination
-----------------
<PAGE>
Exhibit G
SIX FLAGS GREAT ADVENTURE
ROUTE 537, P.O. BOX 120
Telephone #(732) 928-2000 Fax #(732) 833-0204
CERTIFICATE OF INSURANCE
COMPANIES AFFORDING COVERAGE
COMPANY COMPANY
LETTER A LETTER D
COMPANY COMPANY
LETTER B LETTER E
COMPANY COMPANY
LETTER C LETTER F
COVERAGES
THIS CERTIFICATE IS TO CERTIFY TO SIX FLAGS ______ OR ANY SUBSIDIARIES
HEREAFTER REFERRED TO AS "SIX FLAGS" THAT POLICIES DESCRIBED BELOW HAVE BEEN
ISSUED TO THE INSURED BY THE UNDERSIGNED AND ARE IN FULL FORCE AND EFFECT AT
THIS TIME. IF ANY CHANGES ARE MADE IN THE POLICIES WHICH EFFECT THE INTEREST OF
SIX FLAGS OR IF ANY OF THE POLICIES ARE CANCELED AT THE REQUEST OF EITHER
PARTY, WRITTEN NOTICE WILL BE GIVEN BY THE INSURANCE COMPANY TO SIX FLAGS
AT LEAST THIRTY (30) DAYS PRIOR TO THE EFFECTIVE DATE THEREOF.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
CO. TYPE OF INSURANCE POLICY EFFE. EXP. LIMITS IN THOUSANDS
LTR. NUMBER DATE DATE
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
WORKERS COMPENSATION STATUTORY
EMPLOYERS LIABILITY (NOTE 1) EA. ACCIDENT $____
o CERTIFICATE HOLDER NAMED ALT DISEASE-POLICY LIMIT $____
EMPLOYER DISEASE EA. EMPLOYEE $____
- --------------------------------------------------------------------------------------------------
GENERAL LIABILITY (NOTE 2) GENERAL AGG. $____
o COMPREHENSIVE GENERAL LIABILITY PRODUCT-COMP/OPS AGG $____
o CLAIMS MADE OCCURRENCE PERSONAL & ADV.INJURY $____
o CERT. HOLDER NAMED ADDNL. INSURED EACH OCCURRENCE $____
o WAIVER OF SUBROGATION WAIVED
AGAINST CERT. HOLDER FIRE DAMAGE
o HOLD HARMLESS AGREEMENT WITH CERT. (ANY ONE FIRE) $____
HOLDER INSURED MEDICAL EXPENSE
o PROFESSIONAL LIABILITY (ANY ONE PERSON) $____
- --------------------------------------------------------------------------------------------------
o AUTO LIABILITY COMBINED SINGLE LIMIT $____
o ANY AUTO BODILY INJURY
o ALL OWNED (PER PERSON) $____
o SCHEDULED AUTOS BODILY INJURY
o CERT. HOLDER NAMED ADDNL. INSURED (PER ACCIDENT) $____
o WAIVER OF SUBROGATION AGAINST
SIX FLAGS
- --------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Trademarks shall be removed from the RX Equipment and remain at the
Park, and KBK shall quit and surrender the photobuildings in the
Park in good condition, reasonable wear and tear expected. Unless
The Park and KBK otherwise agree, if [(BK fails to remove the RX
Equipment from the Park within five (5) days after KBK receives
written notice of the termination of this Agreement, then [(BK shall
be deemed to have abandoned such property and title to the same
shall at that time vest in the Park. Any costs and expenses incurred
by The Park in removing such abandoned property (including the
reasonable value of the services rendered by the Park employees in
connection therewith) shall be paid to The Park by [(BK promptly
following demand therefore.
In the event RX defaults on the Loan Documents prior to the
expiration or other termination of the Agreement, and [(BK promptly
notifies The Park of this fact, the Park shall thereafter place the
share of Gross Revenue that is owed and owing to RX pursuant to
Section 4 of the Agreement in an escrow fund pending either (I)
final determination by [(BK and RX as to what should be done with
such funds, or (ii) receipt of an appropriate court order directing
The Park on how to distribute RX's share of the Gross Revenue.
3. General Statement
A. All revenue produced by the use of the photosystem(s) supplied by RX
TechnologySM are to be divided between RX TechnologyA'" and "The
Park" as agreed.
B. RX TechnologySM agrees to license the use of its technology in "The
Park" with no additional fees other than those described in this
Agreement.
C. Installation dates of the photosystem equipment on the
aforementioned rides is to be determined based upon availability of
the sales building and completion of construction and electrical
requirements. Target opening date is Spring 2000.
4. Revenue Distribution
The gross revenue calculation is to be based on the formula used in
the following example:
THESE $ AMOUNTS ARE USED AS AN EXAMPLE ONLY
Total Sale $8.50
-less 7% sales tax $ .55
-----
Retail Sales Price $7.95
Less folder $ .24
Less print media $ .65
Less Photobooth sales staff $ .50
Total After Expenses $6.56
50% to The Park $3.28
50% to RX Tecbnology $3.28
-Page 4 of 6-
<PAGE>
5. Property Rights
A. RX TechnologySM will retain ownership of those parts of the
photosystem(s) that it supplies at all times throughout the duration
of this Agreement and afterwards.
B. "The Park" will retain ownership of those parts of the
photosystem(s) that it supplied, as detailed in this Agreement, at
all times throughout the duration of this Agreement and afterwards.
6. System Operation
A. "The Park" understands and agrees to leave the RX TechnologySM
photosystem equipment on at all times; 24-hours a day, 7 days a week
-- including days when "The Park" is not open to the public. Staff
will be instructed to leave the system in a "sleep" mode before
leaving each day.
B. Proper care and handling of the RX TechnologySM photosystem will
prevent unnecessary malfunctions. It is imperative that our manuals
and guides be closely adhered to by all Park staff at all times.
7. Acceptance
A. This Agreement, when signed by both parties as indicated herein,
shall constitute the entire Agreement relating to the supply of a
ride photosystem(s) and shall supersede all prior representations or
contracts relating thereto and not incorporated in this Agreement.
No modification or waiver of this Agreement shall be valid unless
made in writing and signed by an authorized officer or
representative of each party.
B. "The Park" has been made aware of this Agreement and grants the
authority to engage in aforementioned business activities with RX
Technology5M. A representative of "The Park" shall acknowledge this
Agreement by signing where indicated below.
8. Notices
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or
certified mail, postage prepaid, return receipt requested, addressed
as listed below.
-Page 5 of 6-
<PAGE>
9. Force Majeure
Neither party shall be liable to the other for delay or failure to comply
with the provisions of this Agreement when such is caused by strikes,
other labor difficulties, wars, fires, floods, explosions, earthquakes,
goveRXment regulations, shortages in material, or any other reasonable
cause beyond either party's control.
Signed for and on behalf of: Signed for and on behalf of:
RX TechnologySM Inc. Kennywood Partners, L.P.
P.O. Box 9112 4800 Kennywood Boulevard
Mandeville, LA. 70470-9112 West Mifflin, PA 15 122-2399
Slgned /s/ Donald Rex Gay Signed [ILLEGIBLE]
----------------------------- -----------------------------
Print Name Donald Rex Gay Print Name [ILLEGIBLE]
--------------------------- -------------------------
Date Dec 15, 1999 Date 12-16-99
------------------------------- -------------------------------
-Fage 6 of 6-
<PAGE>
EXHIBIT 10.26
Myrtle Beach Grand Prix
Crazy Mouse
<PAGE>
AGREEMENT
This Agreement is between: RX Technology (SM)
P.O. Box 9112
Mandeville, LA 70470-9112
United States of America
Phone: (504) 727-9412
and
North Myrtle Beach Grand Prix, LLC ("Park")
3900 Hwy 17 South
North Myrtle Beach, SC 29582
(Complete mailing address)
United States of America
Phone (843) 238-4783
272-7770
This Agreement concerns the furnishing of a photosystem(s) by RX Technology (SM)
to "The Park" for a ride(s) known as:
(1) Crazy Mouse, (2) Splash ("The Ride")
1. Responsibilities
1.1 RX Technology (SM)
A. Provide a Theme Park photosystem(s) each comprising of:
1) Complete photo-imaging system
2) Video camera(s),
3) Printers,
4) Color display monitors,
5) Electronic Point of Sale (POS) units,
6) Cash registers,
7) A suitable trigger source to detect the ride and
8) Suitable flash/lighting units.
B. Provide video cables from the camera pole to the
photobuilding.
C. Provide backup equipment for unexpected equipment malfunction,
thereby avoiding prolonged delay in repair. Backup equipment
required to be determined by RX Technology (SM).
D. Properly and completely install the photosystem(s).
E. Provide technical support and maintenance to ensure proper
functioning of the photosystem, to the best of its ability.
F. Provide complete initial training of the staff, including
support after opening.
- Page 1 of 6 -
<PAGE>
G. Provide generic white folders for the photographs. Folders
must allow fast insertion of the photographs by the sales
staff.
H. Provide "The Park" with operational and troubleshooting
guides.
I. Supply the print media and ink cartridges for the video
printers. RX Technology (SM) to be the sole supplier of all
video printer paper.
J. Supply register paper rolls and ink cartridges for sales
register printers.
1.2 "The Park"
A. Provide liability and general business insurance coverage for
the photobuildings and its contents.
B. Conduct all routine accounting procedures. These procedures
include any submission of taxes to state and local agencies
and the preparation of weekly sales and revenue figures.
C. Staff and operate all RX Technology (SM) photosystem
operations.
D. Provide a suitable building, its themeing and signage. Provide
signage for photo sales.
E. Supply electrical wiring from the sales building to the camera
pole with the breaker switch located in the sales area.
F. Supply electrical wiring to the sales building and separate
circuit breakers as detailed in guidelines provided by RX
Technology (SM).
G. Provide an electrician or other park employee or contractor to
lay and pull cables, put up lights, etc. under instruction and
supervision of RX Technology (SM).
H. Provide and install a direct telephone line to the sales
building.
I. Purchase and install a suitable pole(s) - for the camera,
flash units and trigger sensor.
J. Supply trunking/conduit of at least 2 inches in internal
diameter and install it between the sales building and the
camera site, above or below the ground.
- Page 2 of 6 -
<PAGE>
2. Terms and Conditions
A. The length of this Agreement is to be for a period of 3 years.
RX Technology (SM) agrees to ensure that the photosystem(s) is
updated, to the best of its ability. "The Park" agrees to
ensure that the ride(s) is kept updated as appropriate.
B. In the event a ride is closed RX Technology (SM) and the Park
may elect to reposition the system. Modification and changes
required will be negotiated at the then current time and
materials charges.
C. Both parties agree that neither shall be held liable for loss
of income due to ride or system malfunction.
D. "The Park" will use its own banking method and security when
depositing monies taken in payment of the photographs sold. RX
Technology (SM) share of the revenue will be sent on a weekly
basis to RX Technology (SM) at P.O. Box 1117, Fort Worth, TX
76101.
E. The selling price of the photographs shall be determined by
mutual agreement between "The Park" and RX Technology (SM). It
is agreed that the selling price can vary throughout the
season.
F. Due to any unforeseen circumstances if ridership results in
less than an average of 100 prints per day over a 2 week
period, RX Technology (SM) retains the option to withdraw the
photosystem.
G. Upon termination of this Agreement, RX Technology (SM) shall
remove its property from park grounds.
H. Upon termination of the summer season RX Technology (SM) shall
remove its property from park grounds and re-install and test
at the beginning of the next season. We will perform routine
maintenance on the equipment and update as required.
I. WHEREAS, KBK Financial, Inc. ("KBK"), a Delaware corporation,
located at 301 Commerce Street, 2200 City Center II, Fort
Worth, Texas 76102, has loaned funds to RX which is secured
by, among other things, the Equipment (as defined in the
Agreement) used by RX in the Shop (KBK's loan to RX is
hereafter called the "Loan"); and
WHEREAS, NMBGP, LLC and RX desire to amend the Agreement to
provide KBK with certain rights in the Equipment in the event
RX defaults on the Loan;
NOW, THEREFORE, NMBGP, LLC and RX agree as follows:
Notwithstanding anything to the contrary herein, upon the
occurrence of an event of default under the documents
(collectively, the "Loan Documents:") evidencing, governing
and securing certain loan or loans made by KBK, Financial,
Inc. ("KBK") to RX which is secured by, among other things,
the Equipment owned and provided by RX (the "EX Equipment"),
and KBK promptly notifies NMBGP, LLC of such default, at the
expiration or prior termination of the Agreement, KBK shall be
entitled to promptly remove the RX Equipment from the Parks,
except that NMBGP, LLC Trademarks of NMBGP, LLC Affiliates'
Trademarks shall be removed from the RX Equipment and remain
- Page 3 of 6 -
<PAGE>
at the Park, and KBK shall quit and surrender the
photobuildings in the Park in good condition, reasonable wear
and tear expected. Unless NMBGP, LLC and KBK otherwise agree,
if KBK fails to remove the RX Equipment from the Park within
five (5) days after KBK receives written notice of the
termination of this Agreement, then KBK shall be deemed to
have abandoned such property and title to the same shall at
that time vest in NMBGP, LLC. Any costs and expenses incurred
by NMBGP, LLC in removing such abandoned property (including
the reasonable value of the services rendered by the Park
employees in connection therewith) shall be paid to NMBGP, LLC
by KBK promptly following demand therefor.
In the event RX defaults on the Loan Documents prior to the
expiration or other termination of the Agreement, and KBK
promptly notifies NMBGP, LLC of this fact, the Park shall
thereafter place the share of Gross Revenue that is owed and
owing to RX pursuant to Section 4 of the Agreement in an
escrow fund pending either (I) final determination by KBK and
RX as to what should be done with such funds, or (ii) receipt
of an appropriate court order directing NMBGP, LLC on how to
distribute RX's share of the Gross Revenue.
3. General Statement
A. All revenue produced by the use of the photosystem(s) supplied
by RX Technology SM are to be divided between RX Technology
(SM) and "The Park" as agreed.
B. RX Technology (SM) agrees to license the use of its technology
in "The Park" with no additional fees other than those
described in this Agreement.
C. Installation dates of the photosystem equipment on the
aforementioned rides is to be determined based upon
availability of the sales building and completion of
construction and electrical requirements. Target opening date
is March 10, 2000.
4. Revenue Distribution
The gross revenue calculation is to be based on the formula used in the
following example:
THESE $ AMOUNTS ARE USED AS AN EXAMPLE ONLY
Total Sale $_____
-less ____% sales tax $_____
Retail Sales Price $_____
50% Payment to "The Park" - $_____
RX Technology (RX pays for print media) $_____
- Page 4 of 6 -
<PAGE>
5. Property Rights
A. RX Technology (SM) will retain ownership of those parts of the
photosystem(s) that it supplies at all times throughout the
duration of this Agreement and afterwards.
B. "The Park" will retain ownership of those parts of the
photosystem(s) that it supplied, as detailed in this
Agreement, at all times throughout the duration of this
Agreement and afterwards.
6. System Operation
A. "The Park" understands and agrees to leave the RX Technology
(SM) photosystem equipment on at all times; 24-hours a day, 7
days a week -- including days when "The Park" is not open to
the public. Temperature must remain constant at all times as
fluctuations are extremely harmful to the photosystem. Staff
will be instructed to leave the system in a "sleep" mode
before leaving each day.
B. Proper care and handling of the RX Technology (SM) photosystem
will prevent unnecessary malfunctions. It is imperative that
our manuals and guides be closely adhered to at all times by
all Park staff at all times.
7. Acceptance
A. This Agreement, when signed by both parties as indicated
herein, shall constitute the entire Agreement relating to the
supply of a ride photosystem(s) and shall supersede all prior
representations or contracts relating thereto and not
incorporated in this Agreement. No modification or waiver of
this Agreement shall be valid unless made in writing and
signed by an authorized officer or representative of each
party.
B. "The Park" has been made aware of this Agreement and grants
the authority to engage in aforementioned business activities
with RX Technology (SM). A representative of "The Park" shall
acknowledge this Agreement by signing where indicated below.
8. Notices
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or
certified mail, postage prepaid, return receipt requested, addressed as
listed below.
- Page 5 of 6 -
<PAGE>
9. Force Majeure
Neither party shall be liable to the other for delay or failure to comply
with the provisions of this Agreement when such is caused by strikes,
other labor difficulties, wars, fires, floods, explosions, earthquakes,
government regulations, shortages in material, or any other reasonable
cause beyond either party's control.
Signed for and on behalf of Signed for and on behalf of
RX Technology (SM) Inc. North Myrtle Beach Grand Prix, LLC
P.O. Box 9112 3900 Hwy 17 South
Mandeville,LA 70470-9112 North Myrtle Beach, SC 29582
Signed /s/ Donald Rex Gay Signed /s/ Robert M. Lazarus
----------------------------- -------------------------------
Print Name Donald Rex Gay Print Name Robert M. Lazarus
------------------------- ----------------------------
Date Jan 21, 2000 Date 1/17/00
------------------------------- ---------------------------------
<PAGE>
EXHIBIT 10.27
Myrtle Beach Grand Prix
Big Splash
<PAGE>
AGREEMENT
This Agreement is between: RX Technology (SM)
P.O. Box 9112
Mandeville, LA 70470-9112
United States of America
Phone: (504) 727-9412
and
North Myrtle Beach Grand Prix, LLC ("Park")
3900 Hwy 17 South
North Myrtle Beach, SC 29582
(Complete mailing address)
United States of America
Phone (843) 238-4783
272-7770
This Agreement concerns the furnishing of a photosystem(s) by RX Technology (SM)
to "The Park" for a ride(s) known as:
(1) Crazy Mouse, (2) Splash ("The Ride")
1. Responsibilities
1.1 RX Technology (SM)
A. Provide a Theme Park photosystem(s) each comprising of:
1) Complete photo-imaging system
2) Video camera(s),
3) Printers,
4) Color display monitors,
5) Electronic Point of Sale (POS) units,
6) Cash registers,
7) A suitable trigger source to detect the ride and
8) Suitable flash/lighting units.
B. Provide video cables from the camera pole to the
photobuilding.
C. Provide backup equipment for unexpected equipment malfunction,
thereby avoiding prolonged delay in repair. Backup equipment
required to be determined by RX Technology (SM).
D. Properly and completely install the photosystem(s).
E. Provide technical support and maintenance to ensure proper
functioning of the photosystem, to the best of its ability.
F. Provide complete initial training of the staff, including
support after opening.
- Page 1 of 6 -
<PAGE>
G. Provide generic white folders for the photographs. Folders
must allow fast insertion of the photographs by the sales
staff.
H. Provide "The Park" with operational and troubleshooting
guides.
I. Supply the print media and ink cartridges for the video
printers. RX Technology (SM) to be the sole supplier of all
video printer paper.
J. Supply register paper rolls and ink cartridges for sales
register printers.
1.2 "The Park"
A. Provide liability and general business insurance coverage for
the photobuildings and its contents.
B. Conduct all routine accounting procedures. These procedures
include any submission of taxes to state and local agencies
and the preparation of weekly sales and revenue figures.
C. Staff and operate all RX Technology (SM) photosystem
operations.
D. Provide a suitable building, its themeing and signage. Provide
signage for photo sales.
E. Supply electrical wiring from the sales building to the camera
pole with the breaker switch located in the sales area.
F. Supply electrical wiring to the sales building and separate
circuit breakers as detailed in guidelines provided by RX
Technology (SM).
G. Provide an electrician or other park employee or contractor to
lay and pull cables, put up lights, etc. under instruction and
supervision of RX Technology (SM).
H. Provide and install a direct telephone line to the sales
building.
I. Purchase and install a suitable pole(s) - for the camera,
flash units and trigger sensor.
J. Supply trunking/conduit of at least 2 inches in internal
diameter and install it between the sales building and the
camera site, above or below the ground.
- Page 2 of 6 -
<PAGE>
2. Terms and Conditions
A. The length of this Agreement is to be for a period of 3 years.
RX Technology (SM) agrees to ensure that the photosystem(s) is
updated, to the best of its ability. "The Park" agrees to
ensure that the ride(s) is kept updated as appropriate.
B. In the event a ride is closed RX Technology (SM) and the Park
may elect to reposition the system. Modification and changes
required will be negotiated at the then current time and
materials charges.
C. Both parties agree that neither shall be held liable for loss
of income due to ride or system malfunction.
D. "The Park" will use its own banking method and security when
depositing monies taken in payment of the photographs sold. RX
Technology (SM) share of the revenue will be sent on a weekly
basis to RX Technology (SM) at P.O. Box 1117, Fort Worth, TX
76101.
E. The selling price of the photographs shall be determined by
mutual agreement between "The Park" and RX Technology (SM). It
is agreed that the selling price can vary throughout the
season.
F. Due to any unforeseen circumstances if ridership results in
less than an average of 100 prints per day over a 2 week
period, RX Technology (SM) retains the option to withdraw the
photosystem.
G. Upon termination of this Agreement, RX Technology (SM) shall
remove its property from park grounds.
H. Upon termination of the summer season RX Technology (SM) shall
remove its property from park grounds and re-install and test
at the beginning of the next season. We will perform routine
maintenance on the equipment and update as required.
I. WHEREAS, KBK Financial, Inc. ("KBK"), a Delaware corporation,
located at 301 Commerce Street, 2200 City Center II, Fort
Worth, Texas 76102, has loaned funds to RX which is secured
by, among other things, the Equipment (as defined in the
Agreement) used by RX in the Shop (KBK's loan to RX is
hereafter called the "Loan"); and
WHEREAS, NMBGP, LLC and RX desire to amend the Agreement to
provide KBK with certain rights in the Equipment in the event
RX defaults on the Loan;
NOW, THEREFORE, NMBGP, LLC and RX agree as follows:
Notwithstanding anything to the contrary herein, upon the
occurrence of an event of default under the documents
(collectively, the "Loan Documents:") evidencing, governing
and securing certain loan or loans made by KBK, Financial,
Inc. ("KBK") to RX which is secured by, among other things,
the Equipment owned and provided by RX (the "EX Equipment"),
and KBK promptly notifies NMBGP, LLC of such default, at the
expiration or prior termination of the Agreement, KBK shall be
entitled to promptly remove the RX Equipment from the Parks,
except that NMBGP, LLC Trademarks of NMBGP, LLC Affiliates'
Trademarks shall be removed from the RX Equipment and remain
- Page 3 of 6 -
<PAGE>
at the Park, and KBK shall quit and surrender the
photobuildings in the Park in good condition, reasonable wear
and tear expected. Unless NMBGP, LLC and KBK otherwise agree,
if KBK fails to remove the RX Equipment from the Park within
five (5) days after KBK receives written notice of the
termination of this Agreement, then KBK shall be deemed to
have abandoned such property and title to the same shall at
that time vest in NMBGP, LLC. Any costs and expenses incurred
by NMBGP, LLC in removing such abandoned property (including
the reasonable value of the services rendered by the Park
employees in connection therewith) shall be paid to NMBGP, LLC
by KBK promptly following demand therefor.
In the event RX defaults on the Loan Documents prior to the
expiration or other termination of the Agreement, and KBK
promptly notifies NMBGP, LLC of this fact, the Park shall
thereafter place the share of Gross Revenue that is owed and
owing to RX pursuant to Section 4 of the Agreement in an
escrow fund pending either (I) final determination by KBK and
RX as to what should be done with such funds, or (ii) receipt
of an appropriate court order directing NMBGP, LLC on how to
distribute RX's share of the Gross Revenue.
3. General Statement
A. All revenue produced by the use of the photosystem(s) supplied
by RX Technology SM are to be divided between RX Technology
(SM) and "The Park" as agreed.
B. RX Technology (SM) agrees to license the use of its technology
in "The Park" with no additional fees other than those
described in this Agreement.
C. Installation dates of the photosystem equipment on the
aforementioned rides is to be determined based upon
availability of the sales building and completion of
construction and electrical requirements. Target opening date
is March 10, 2000.
4. Revenue Distribution
The gross revenue calculation is to be based on the formula used in the
following example:
THESE $ AMOUNTS ARE USED AS AN EXAMPLE ONLY
Total Sale $_____
-less ____% sales tax $_____
Retail Sales Price $_____
50% Payment to "The Park" - $_____
RX Technology (RX pays for print media) $_____
- Page 4 of 6 -
<PAGE>
5. Property Rights
A. RX Technology (SM) will retain ownership of those parts of the
photosystem(s) that it supplies at all times throughout the
duration of this Agreement and afterwards.
B. "The Park" will retain ownership of those parts of the
photosystem(s) that it supplied, as detailed in this
Agreement, at all times throughout the duration of this
Agreement and afterwards.
6. System Operation
A. "The Park" understands and agrees to leave the RX Technology
(SM) photosystem equipment on at all times; 24-hours a day, 7
days a week -- including days when "The Park" is not open to
the public. Temperature must remain constant at all times as
fluctuations are extremely harmful to the photosystem. Staff
will be instructed to leave the system in a "sleep" mode
before leaving each day.
B. Proper care and handling of the RX Technology (SM) photosystem
will prevent unnecessary malfunctions. It is imperative that
our manuals and guides be closely adhered to at all times by
all Park staff at all times.
7. Acceptance
A. This Agreement, when signed by both parties as indicated
herein, shall constitute the entire Agreement relating to the
supply of a ride photosystem(s) and shall supersede all prior
representations or contracts relating thereto and not
incorporated in this Agreement. No modification or waiver of
this Agreement shall be valid unless made in writing and
signed by an authorized officer or representative of each
party.
B. "The Park" has been made aware of this Agreement and grants
the authority to engage in aforementioned business activities
with RX Technology (SM). A representative of "The Park" shall
acknowledge this Agreement by signing where indicated below.
8. Notices
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or
certified mail, postage prepaid, return receipt requested, addressed as
listed below.
- Page 5 of 6 -
<PAGE>
9. Force Majeure
Neither party shall be liable to the other for delay or failure to comply
with the provisions of this Agreement when such is caused by strikes,
other labor difficulties, wars, fires, floods, explosions, earthquakes,
government regulations, shortages in material, or any other reasonable
cause beyond either party's control.
Signed for and on behalf of: Signed for and on behalf of:
RX Technology (SM) Inc. North Myrtle Beach Grand Prix, LLC
P.O. Box 9112 3900 Hwy 17 South
Mandeville,LA 70470-9112 North Myrtle Beach, SC 29582
Signed /s/ Donald Rex Gay Signed /s/ Robert M. Lazarus
----------------------------- -------------------------------
Print Name Donald Rex Gay Print Name Robert M. Lazarus
------------------------- ----------------------------
Date Jan 21, 2000 Date 1/17/00
------------------------------- ---------------------------------
<PAGE>
EXHIBIT 10.28
Six Flags Great Escape
Alpine Bobsled
<PAGE>
THIS AGREEMENT is made as of this 1st day of April 2000, by and between
The Great Escape Theme Park, LLC, a division of Premier Parks Inc., a Delaware
corporation, having offices at P.O. Box 511, Lake George, NY 12845 ("The Great
Escape"), and RX Technology Inc., a Nevada, corporation, having offices at 2264
7th Street, Mandeville, LA 70471(RX Technology).
WITNESSETH
WHEREAS, The Great Escape owns, operates or manages the theme amusement
facility which is open to the general public and known as The Great Escape and
Splashwater Kingdom (the "Park").
WHEREAS, RX Technology Inc. desires to operate a retail concession known
as RX Technology Inc. (the "Concession") to sell Digital Photographs (the
"Goods") in the Park as set forth herein:
WHEREAS, The Great Escape desires to grant RX Technology Inc. a license to
operate the Concession in the Park, subject to the terms and conditions set
forth herein.
NOW, THEREFORE in consideration of the foregoing premises and the mutual
covenants contained herein, The Great Escape and RX Technology Inc. agree as
follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination,
The Great Escape grants RX Technology Inc. a license to operate the Concession
in the Park in such locations of the Park as is set forth on Exhibit A hereto
during the period of time (the "Term") commencing April 1, 2000 (the
"Commencement Date") and terminating at the end of the Park's 2002 operating
season (the "Termination Date").
2. OPERATION.
A. Hours of Operation.
RX Technology Inc. agrees to operate the Concession during the
hours and days, including Sundays and holidays, that the Park is open for
business in accordance with schedules prepared by The Great Escape which The
Great Escape may modify in The Great Escapes' sole discretion at any time on
twenty-four (24) hours notice to RX Technology Inc. and such additional hours as
are required by The Great Escape (the "Operating Hours"). RX Technology Inc.
acknowledges that The Great Escape will suffer great harm if RX Technology Inc.
breaches the agreement set forth in this subsection, the amount of which would
be difficult to determine. Therefore, RX Technology Inc. agrees to pay The Great
Escape liquidated damages of $500.00 for each Park operating day that RX
Technology Inc. opens the Concession thirty (30) minutes after the agreed
opening time of the Concession and/or closes the Concession thirty (30) minutes
before the agreed upon closing time. Upon notice thereof by The Great Escape and
such liquidated
<PAGE>
damages amount shall be increased an additional $750.00 for each successive
violation of Park Operating Hours upon notice thereof by The Great Escape.
B. Approval of Goods/Services.
RX Technology Inc. agrees to submit samples of all products,
detailed plans, specifications, drawings and other information with respect to
Goods for sale to customers in the Park in connection with the Concession, for
The Great Escape approval in advance of sale of the same. RX Technology Inc.
agrees to make such changes to the Goods, at its sole cost and expense, as The
Great Escape shall reasonably determine. RX Technology Inc. also agrees to
coordinate with the Park in coding each of RX Technology Inc. Goods and
inputting the same in the cash register for tracking purposes. To the extent
requested by The Great Escape, RX Technology Inc. shall comply with The Great
Escape point of sale and other information systems requirements.
C. Price of Goods.
(i) RX Technology Inc. agrees to submit to The Great Escape
for its review and approval, a retail price list of all RX Technology Inc.
Goods for sale to customers of the Park (the "Approved Price List") at least two
(2) weeks prior to Commencement Date or any proposed change in any previously
approved price list. RX Technology Inc. agrees to make changes to the Approved
Price List as The Great Escape shall reasonably request. RX Technology Inc.
shall be responsible for all costs and expenses associated with production and
printing of the Price List and any changes thereto, and such costs shall not be
deducted from Net Revenue (as hereinafter defined).
(ii) RX Technology Inc. agrees to make changes to the Approved
Price List (the "Revised Price List") at any time during the Term if the parties
mutually determine that an adjustment is appropriate. RX Technology Inc. shall
be responsible for all costs and expenses associated with production and
printing of the Revised Price List, and such costs shall not be deducted from
Net Revenue (as hereinafter defined).
(iii) RX Technology Inc. agrees that it shall not make its
Goods available to any party free of charge or at a discounted price unless RX
Technology Inc. is engaging in sampling activities approved by The Great Escape,
etc. Notwithstanding the foregoing, RX Technology Inc. agrees to offer such
discounts on its Goods as The Great Escape shall require and as The Great Escape
shall offer in locations owned by The Great Escape. RX Technology Inc. shall, at
all times, charge customers, including without limitation, family members,
employees and business associates, the price set forth on the Approved Price
List for its Goods except as otherwise expressly set forth herein.
(iv) RX Technology Inc. agrees that any merchandise/products
that are held for Guests by RX Technology Inc. must be taken to Guest Relations
at Park closing each operating day for the Guest to pick up. Failure to do so
will result in a $100.00 fine for each occurrence that The Great Escape must
retrieve product held by RX Technology Inc..
D. Methods of Sale: Payment and Return Policies.
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(i) The Goods shall be available for sale to customers of the
Park as follows: by mail, telephone order, or at point of purchase (a "Method of
Sale"). A Method of Sale shall be discontinued at the discretion of The Great
Escape.
(ii) The following forms of payment for RX Technology Inc.'
Goods will be accepted: American Express, MasterCard, Visa, and Discover credit
cards (collectively, the "Credit Cards"), checks, and cash (each, a "Form of
Payment"). The Great Escape may, in its sole discretion discontinue and, if
applicable, require RX Technology Inc. to discontinue any Form of Payment for
Goods sold hereunder. Conversely, The Great Escape may, in its sole discretion,
require RX Technology Inc. to accept such additional forms of payment as may be
accepted by The Great Escape in the future; and in so doing, RX Technology Inc.
agrees to submit to such reasonable rules/restrictions with respect thereto.
Payment for the Goods shall be in accordance with the provisions of Exhibit B -
Payment/Return Agreement, which is attached hereto and incorporated herein.
E. Reports and Records.
(i) Upon commencement of RX Technology Inc.' daily operations,
RX Technology Inc. shall follow cashier procedures Exhibit B-Supplement pick up
a cash till from the Park's cash control facility, and within one (1) hour after
the close of each Park day, RX Technology Inc. shall deliver to Park's cash
control facility the following: (a) remaining cash till, (b) a daily report of
the day's operations on The Great Escape "Register Balance Form", and (c) the
day's daily gross receipts, including without limitation credit card sales
drafts, credit memos and all other materials evidencing sales transactions
during such day (collectively, the "Deposits"). Such Deposits are received
subject to audit by The Great Escape as set forth herein and The Great Escape
may correct and credit or debit RX Technology Inc. for any inaccuracies or
errors in RX Technology Inc.' computation of Deposits. The Great Escape may
refuse to accept or revoke acceptance of any Deposits, including any sales
drafts or credit adjustments, which are illegible or which fail to comply with
the terms of this Agreement, including, but not limited to, any federal or state
law.
(ii) RX Technology Inc. shall retain copies of sales drafts
and other materials evidencing sales transactions related to sale of Goods for
the Term of the Agreement from date of transaction. This Section shall survive
the termination of the Agreement.
F. Compliance with Laws.
RX Technology Inc. agrees that at all times during the Term it
shall be in compliance with all laws, rules and regulations with respect to
operation of the Concession in the Park, including, without limitation, all
environmental and employment laws, rules and regulations. RX Technology Inc.
agrees that is shall be responsible for obtaining, at its sole cost and expense,
all licensing and/or permits required in connection with operation of the
Concession in the Park.
G. Employees.
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(i) RX Technology Inc. acknowledges that it has no authority
to employ persons on behalf of The Great Escape, and no employees or agents of
RX Technology Inc. shall be deemed to be agents or employees of The Great
Escape.
(ii) Without The Great Escape prior written consent, RX
Technology Inc. shall not, until after the second anniversary of the end of the
Term, solicit for the purpose of hiring or employ, directly or indirectly, any
employee employed by, or independent contractor engaging in business with, The
Great Escape, in each case, during the Term. This subsection of the Agreement
shall survive until the second anniversary of the end of the Term.
(iii) RX Technology Inc. represents and warrants that it
shall, at its sole cost and expense, recruit, train, supervise and furnish the
services of at least {number} (#) persons to operate the, and perform services
in connection with the Concession as set forth in Exhibit C attached hereto and
incorporated herein ("RX Technology Inc.' Employees") during Operating Hours. RX
Technology Inc. acknowledges that The Great Escape will suffer great harm if RX
Technology Inc. breaches the agreement set forth in this subclause, the amount
of which would be difficult to determine. Therefore, RX Technology Inc. agrees
to pay The Great Escape liquidated damages of $250.00 for each Park operating
day that RX Technology Inc. fails to furnish the services of {number} (#)
trained persons to operate the Concession.
(iv) RX Technology Inc. shall be fully responsible for all RX
Technology Inc., Employees, including without limitation, responsibility for all
salaries and other compensation, withholding taxes, worker's compensation
insurance, union dues, if applicable, and other required payments in connection
with such employees and shall be in compliance with all laws, rules and
regulations with respect thereto.
(v) Each prospective employee of RX Technology Inc. shall
complete an employment application, the form of which must be approved by The
Great Escape, prior to beginning work in the Park.
(vi) RX Technology Inc. agrees to use best efforts to cause
its employees to attend Park training/orientation programs as may be required by
The Great Escape and comply with Park rules and regulations, including without
limitation submission to drug testing, as may be required. Pending availability
of desired Park Orientation date and time, no RX Technology Inc. employees will
be scheduled for Park orientation with out five days written notice from RX
Technology Inc..
(vii) RX Technology Inc. agrees to verify, at its sole cost
and expense, the references of RX Technology Inc.' Employees, including without
limitation, prior positions of employment, reasons for leaving prior positions,
age, education, criminal records, immigration status, and right to work in the
United States and use due diligence to determine if any of RX Technology Inc.'
Employees have provided false information or omitted significant information
with respect to their backgrounds and/or prior employment.
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(viii) RX Technology Inc. represents and warrants that it
shall not, to RX Technology Inc.' knowledge, employ any person to work in the
Park who has a criminal history without The Great Escape knowledge and approval
with respect to said employment. RX Technology Inc.' knowledge, for the purpose
described in the immediately preceding sentence, is the knowledge that RX
Technology Inc. would have known had RX Technology Inc. performed a reference
check of the type performed by The Great Escape. RX Technology Inc. acknowledges
that great harm can be suffered by The Great Escape if a RX Technology Inc.
employee is discovered to have a criminal record that could have been discovered
with a criminal history background check of the type performed by The Great
Escape with respect to all prospective employees of The Great Escape. The
parties agree that it will be difficult to determine the damages suffered by The
Great Escape in the event of RX Technology Inc.' failure to undertake such
background checks. Accordingly, the parties agree that in the extent RX
Technology Inc. employs an individual for work in the Park for whom RX
Technology Inc. has not, prior to hiring such person, undertaken a criminal
history background check of the type performed by The Great Escape, then RX
Technology Inc. shall pay The Great Escape liquidated damages of $1,000.00 with
respect to each such employee of RX Technology Inc. regardless of whether the
background check would have revealed any evidence of criminal history.
(ix) At the request of The Great Escape, RX Technology Inc.
shall make available to The Great Escape all information obtained with respect
to its employees, including, without limitation, criminal history background
checks.
(x) RX Technology Inc. agrees to terminate employment at the
Park for any RX Technology Inc. Employee working in the Park who: (a) is
subsequently discovered to have a criminal history and, after being advised of
the same, The Great Escape does not approve said employment, (b) fails to comply
with Park rules or (c) made material misstatements or omissions on their
employment application. RX Technology Inc. agrees to indemnify The Great Escape
from and against any claims by RX Technology Inc.' Employees arising from or
related to such dismissals.
(xi) The Great Escape agrees that RX Technology Inc. may offer
RX Technology Inc. Employees discounts on Park admission and food/merchandise
at the Park that The Great Escape offers its employees in accordance with Park
policy.
(xii) RX Technology Inc. has the option to provide costumes
for RX Technology Inc.'s employees. The Great Escape will approve the costumes
provided by RX Technology Inc.. RX Technology Inc. is to submit costume to The
Great Escape for approval no later then four weeks prior to Park Opening
(`Commencement Date"). RX Technology Inc. also has the option to purchase park
approved costumes from The Great Escape for {Lessee names}`s employees. Park
shoes worn by RX Technology Inc. are to be within The Great Escape guidelines.
All costume charges will be deducted from RX Technology Inc. weekly Net revenue.
It will be the responsibility of RX Technology Inc. to collect costume charges
from RX Technology Inc. employees.
3. FACILITY.
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A. Rights/Responsibilities.
(i) In connection with RX Technology Inc.' operation and
management of the Concession, The Great Escape agrees that RX Technology Inc.
shall be entitled use of and/or access to: (a) the facility at which the
Concession is operated (the "Facility"), (b) adjacent portions of the Facility,
as may be necessary for the operation and maintenance of the Concession, and (c)
common ways and areas within the Park for incinerator or trash purposes, loading
and unloading supplies and installation, repair and maintenance of Equipment
and/or other elements related to the Concession.
(ii) The Great Escape will be responsible for plumbing, and
electrical expenses related to the operation of the Concession in the Facility.
RX Technology Inc. will be responsible for all telephone call charges and photo
copy charges. The Great Escape also agrees to provide the following: entry to
the Park for RX Technology Inc.' Employees in the performance of their duties,
and access to the Park employee parking areas on a first-come, first-serve basis
to be used in the performance of their duties.
(iii) RX Technology Inc. will be responsible for cleaning the
Facility and surrounding area and removing trash from said areas, the regular
maintenance of the Facility, including the replacement of light bulbs, tubes and
ballasts related to the operation of the Concession in the Facility.
B. Construction.
(i) Prior to the construction of the Facility in the Park at
which the Concession is operated, RX Technology Inc. will submit its plans to
the Park for approval. These plans will include exterior and interior finishes
as well as RX Technology Inc. proposed signage. RX Technology Inc. will design
the exterior and interior of the Facility and the signage so that they will be
consistent with the theme of the area of the Park in which the Facility is
located and The Great Escape design requirements policy (the "Design Policy") (a
copy of the Design Policy in effect as of the date hereof is attached hereto and
incorporated herein), as The Great Escape may amend from time to time upon
notice to RX Technology Inc..
(ii) RX Technology Inc. agrees to obtain all permits,
consents, approvals and clearances with respect to any construction contemplated
hereunder and comply with all laws, rules and regulations with respect thereto,
including The Great Escape Maintenance Department rules, and shall secure The
Great Escape prior approval with respect to the following: (a) contractors,
subcontractors, designers, architects and materialmen which will perform work or
services or supply materials in connection with the construction of the
Facility, (b) dates of commencement and completion with respect to each phase of
the construction of the Facility and (c) agreements with all contractors,
subcontractors, designers, architects and materialmen. RX Technology Inc. shall
only enter into construction agreements hereunder which permit assignment to The
Great Escape and its affiliates. All construction hereunder shall be made in a
good and workmanlike manner.
(iii) The Great Escape shall have the right, but not the
obligation, to test and inspect the construction of the Facility. RX Technology
Inc. agrees, at its sole cost and expense, to remedy any problems with the
Facility, upon The Great Escape request, including without
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limiting the foregoing, problems associated with defective design, engineering,
workmanship, failure of factory construction, materials or any component parts.
(iv) RX Technology Inc. shall not place, maintain, or permit
to be placed or maintained on any exterior portion of the Facility or on the
interior side of or immediately adjacent to any glass door, wall or window of
said Facility, or otherwise display outside said Facility in the confines of the
Park, any signs, advertisements, lettering, trade, brand or service name, mark
or logo, neon lights, flood lights, colored lights, flashing lights or other
exterior lighting without prior written consent of The Great Escape, which
consent may be granted or withheld in the absolute discretion of The Great
Escape. RX Technology Inc. shall not use in, on or about said Facility, or
elsewhere in the Park, any sound producing or reproduction equipment audible
inside or outside said Facility, without the prior written consent of The Great
Escape.
C. Alterations.
Upon approval by RX Technology Inc, in writing, The Great
Escape shall have the right, but not the obligation, to make alterations,
modifications, additions, improvements or updates, at RX Technology Inc. sole
cost and expense, to the Facility and/or the Equipment, as hereinafter defined
(collectively, the "Alterations"); provided, however, that RX Technology Inc.
shall have been deemed to approve Alterations if: (i) the Alterations are
reasonably required by The Great Escape: (a) for safety, quality or financial
control reasons, or (b) if new technology and improvements are made to the same
type of Facility and/or Equipment in the industry and/or (ii) required by any
applicable laws, rules or regulations. All such Alterations shall be made in a
good and workmanlike manner. RX Technology Inc. agrees to pay The Great Escape
for the reasonable cost of such Alterations within thirty (30) days of receipt
of an invoice therefor.
(i) RX Technology Inc. agrees to make alterations,
modifications, additions, improvements or updates, at its sole cost and expense
(including any necessary design and engineering expenses), to the Facility
and/or the Equipment, as shall be mutually agreed to by the parties and in
accordance with the Design Policy.
(ii) RX Technology Inc. covenants that it will not make, or
suffer or permit to be made, any Alterations in, on, or to the Facility and/or
the Equipment without first: (a) notifying The Great Escape in writing
sufficiently in advance of the commencement thereof to enable The Great Escape
to post or record or both, appropriate and effective notices of
non-responsibility, (b) obtaining the written consent of The Great Escape
thereto, which consent The Great Escape shall not unreasonably withhold provided
that the proposed Alterations are of high quality and in harmony with the
overall design and appearance of the Park, and necessary to operate the
Concession in a safe and efficient manner, (c) obtaining the written approval of
The Great Escape as to all contractors, subcontractors, and materialmen who will
perform work or services or supply materials in connection therewith and (d)
obtaining the written consent of The Great Escape with respect to the proposed
commencement and completion date of such Alterations.
D. Maintenance and Repair.
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RX Technology Inc. agrees to properly maintain and keep in
good repair and condition the Facility and/or the Equipment, at its sole cost
and expense. The Facility and/or the Equipment shall be maintained in keeping
with the themeing and overall aesthetics of the Park. In the event any portion
of the Facility and/or the Equipment is inoperative or a component thereof has
failed or is defective, RX Technology Inc. shall repair the same no later than
seventy-two (72) hours of RX Technology Inc.' knowledge of the same or, in the
case of Equipment, RX Technology Inc. shall secure comparable equipment (the
"Replacement Equipment") and deliver the same to the Park until such time as the
Equipment is repaired. Failure of RX Technology Inc. to comply with the
provisions of this subsection shall constitute default hereunder.
E. Relocation.
RX Technology Inc. agrees that The Great Escape shall have the
right to relocate RX Technology Inc. to another Facility in the Park, for any
reason, provided that The Great Escape agrees to exercise reasonable care to
minimize interference in or to RX Technology Inc.' operations.
F. Ownership.
(i) It is understood and agreed that the Facility and the
improvements thereto, whether made by RX Technology Inc. or The Great Escape
hereunder, shall remain the property of The Great Escape including the
trademarks and other indicia of The Great Escape, including an Alternate Name
(hereinafter defined) ("The Great Escape' Trademarks") and the trademarks of The
Great Escape affiliates, including Warner Bros. and DC Comics ("Affiliates'
Trademarks") shall be the property of The Great Escape and its affiliates and in
the event of expiration or termination hereunder The Great Escape Trademarks and
its Affiliates' Trademarks shall be removed therefrom and returned to The Great
Escape at RX Technology Inc.' sole cost and expense.
(ii) It is further understood and agreed that the improvements
thereto, whether made by RX Technology Inc. or The Great Escape hereunder, shall
remain the property of The Great Escape.
G. Interference with Parks Operations.
RX Technology Inc. understands that this Agreement may not be
asserted to affect or impede The Great Escape normal Park operations, including
without limitation, upgrading Park equipment, building and/or facilities,
buying/selling Park games or attractions, entering into agreements with other
parties or locating or changing other facilities, equipment, walkways or signage
into or surrounding the Facility, each without the consent of RX Technology
Inc. RX Technology Inc. shall have no exclusive rights with respect to the
operation of concessions in the Park similar in nature or type to the
Concession.
4. EQUIPMENT.
A. Description.
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(i) RX Technology Inc. agrees to provide, at its sole cost and
expense, all equipment, supplies, furnishings, displays, and other signage, cash
registers, and any other materials necessary to operate the Concession (the
"Equipment"). Notwithstanding the foregoing, RX Technology Inc. agrees that it
shall use only The Great Escape provided credit card processing equipment
(collectively, "Six Flags' Equipment"), as appropriate, for all transactions
and, in consideration therefore, RX Technology Inc. shall pay The Great Escape
no later than thirty (30) days of receipt of an invoice therefore.
B. Delivery, Installation and Removal.
(i) RX Technology Inc. agrees that it shall be responsible for
the shipment, installation and, promptly following the end of the Term, the
removal, of the Equipment, including parts therefor and/or Replacement Equipment
(as hereinafter defined), at its sole cost and expense, RX Technology Inc.
agrees to coordinate with The Great Escape with respect to the dates and times
of shipment and installation of the Equipment, Replacement Equipment and/or
parts therefor.
(ii) The Great Escape shall have the right, but not the
obligation, to test and inspect the Equipment and the installation and operation
of the Equipment during the Term. RX Technology Inc. agrees, at its sole cost
and expense, to remedy any problems with the Equipment and installation thereof,
upon The Great Escape request, including without limiting the foregoing,
problems associated with defective design, engineering, workmanship, failure of
factory construction, materials or any component parts.
C. Additional Equipment.
RX Technology Inc. agrees to install and/or supply additional
Equipment as determined by mutual agreement of the parties, at no additional
cost to The Great Escape.
5. PAYMENT TO RX Technology Inc..
A. RX Technology Inc. shall collect, record and submit the Deposits
of the Concession to The Great Escape and The Great Escape shall pay RX
Technology Inc. the following share of Net Revenues (as hereinafter defined)
during each operating season of the Term as follows:
Year RX Technology Inc. % of Net Revenue
---- -----------------------------------
2000 62%
2001 62%
2002 62%
B. "Net Revenue" means gross revenue of the Concession during the
applicable period less the sales tax paid or payable in respect thereto or
otherwise paid. RX Technology Inc. agrees that The Great Escape shall have the
right to deduct the following from RX Technology Inc.'
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share of the Net Revenue: (i) cash shortages, (ii) credit card, check processing
and other transaction costs and charges, including charge backs and return check
amounts and fees related thereto, (iii) the cost of goods taken from The Great
Escape warehouse, to the extent permitted by The Great Escape, or otherwise and
not paid for, (iv) the cost of leased Park equipment, if any, each during the
applicable period, (v) hereof, and (vi) the cost of any bill or charge which is
the basis or which may be the basis for a lien against the Facility as set forth
in more detail in Section 9 (vi) hereof.
C. RX Technology Inc.' share of the Net Revenue will be calculated
at the end of the week. For payment purposes, a week shall be defined as the
seven (7) day period beginning Monday and ending on and including Sunday.
Payments shall be directed as set forth in this Agreement or as RX Technology
Inc. may otherwise direct in writing and shall be payable seven (7) days from
The Great Escape calculation thereof. The Great Escape shall have no further
monetary liability or obligation to RX Technology Inc.. Payments shall be made
to RX Technology Inc. at the address indicated in the first paragraph of this
Agreement or otherwise as requested in writing by RX Technology Inc..
D. Notwithstanding The Great Escape deduction of sales tax from Net
Revenue, RX Technology Inc. represents and warrants that all payments by The
Great Escape to RX Technology Inc. of RX Technology Inc.' share of Net Revenue
hereunder are exempt from any United States federal, state and local taxes or
other assessments, including any withholding taxes. RX Technology Inc. shall be
solely responsible for, and shall pay when due, assessments arising from or in
connection with the receipt by RX Technology Inc. of such Net Revenue.
6. AUDIT RIGHTS.
Until all claims and rights of The Great Escape shall have been
fully ascertained, fixed and paid RX Technology Inc. shall maintain, in
accordance with generally accepted accounting principles, separate and accurate
records of the gross receipts of the Concession at the Park showing in detail
all business transacted by RX Technology Inc.. The Great Escape shall have the
right, at all reasonable times, to examine and inspect such records as well as
any other business records of RX Technology Inc. pertaining to the operation of
the Concession. This Section shall survive the termination of this Agreement.
7. CHANGE IN FINANCIAL CONDITION.
RX Technology Inc. agrees to notify The Great Escape promptly of any
significant/material change in its financial condition.
8. TRADEMARKS.
A. RX Technology Inc. hereby grants The Great Escape the
non-exclusive royalty-free right and license to use RX Technology Inc.'
trademarks, trade names, service marks, logos and symbols. ("RX Technology Inc.'
Trademarks") for the Term of the Agreement in connection with the Concession in
the Park. RX Technology Inc.' Trademarks are and shall remain RX Technology
Inc.' sole and exclusive property. The Great Escape agrees to include a
trademark
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symbol(TM) on the first and most prominent reference to RX Technology Inc.'
Trademarks and a protective trademark legend in materials as shall be required
by RX Technology Inc. hereunder.
B. The Great Escape reserves the right to create an alternate name
and/or logo (collectively, the "Alternate Name") for the Concession. The Great
Escape shall own all right, title and interest in and to such Alternate Name,
and all goodwill with respect thereto shall inure to the benefit of The Great
Escape. RX Technology Inc. agrees that any Alternate Name shall be the exclusive
property of The Great Escape.
C. The Great Escape Trademarks are and shall remain the sole and
exclusive property of The Great Escape, and Affiliates' Trademarks are and shall
remain the sole and exclusive property of The Great Escape affiliates, and RX
Technology Inc. shall not use nor permit others to use The Great Escape
Trademarks, including the Alternate Name, and Affiliates' Trademarks for any
purpose without the prior written consent of The Great Escape nor do anything
which could in any way conflict with The Great Escape or its affiliates' use or
ownership of such trademarks.
9. REPRESENTATIONS AND WARRANTIES: ADDITIONAL COVENANTS.
RX Technology Inc. represents and warrants that:
(i) RX Technology Inc. is, and will during the term of this
Agreement be, solvent and able to meet its obligations hereunder as and when
they become due;
(ii) RX Technology Inc. shall not use, or suffer or permit any
person or persons to use, the Equipment and/or Facility for any purpose other
than as set forth herein without the prior written consent of The Great Escape,
or in any unlawful manner or for any unlawful purpose;
(iii) RX Technology Inc. shall comply with, and use its best
efforts to cause its agents and employees to comply with all rules and
regulations of the Park as may be in effect from time to time, RX Technology
Inc. confirms that it has been provided with a copy of the rules and regulations
of the Park;
(iv) RX Technology Inc. will not offer or provide any Goods in
or from the Concession or elsewhere in the Park, without the prior express
written authorization of The Great Escape. Any uncertainty with respect to the
Goods which RX Technology Inc, is authorized to offer or provide shall be
resolved in the manner which most limits and restricts RX Technology Inc.'
authority, and any reasonable interpretation of such authority by The Great
Escape shall be binding upon RX Technology Inc.;
(v) RX Technology Inc. shall maintain, at its sole cost and
expense during the Term of this Agreement, a valid business license and any
other necessary permits or licenses and shall provide proof of same to The Great
Escape;
(vi) RX Technology Inc. shall promptly pay all bills and
charges relating to the Concession in the Park, including any Alterations to the
Equipment and/or the Facility, and shall protect and indemnify The Great Escape
and the Park against all such bills and charges and
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liens relating thereto. In the event that RX Technology Inc. desires to contest
any bill or charge which is the basis or which may be the basis for a lien
against the Facility constituting the Concession or the Park or both, RX
Technology Inc. shall, within five (5) days of notice therefor, obtain a bond
of, or deposit collateral with, a responsible corporate surety or depository to
protect against any such lien in the amount of any such bill estimated costs and
expenses, including without limitation, attorney's fees and interest. If RX
Technology Inc. fails to post such bond or collateral within the aforementioned
time period, The Great Escape may, without prejudice to any other right or
remedy of The Great Escape herein have the option to: (a) pay any such claim,
bill or charge on RX Technology Inc.' behalf, and RX Technology Inc. shall
reimburse The Great Escape on demand for the amount of any such payment or (b)
have the right to set off the amount of said claim, bill or charge from the
portion of RX Technology Inc.' Net Revenue due hereunder. Should any claim or
lien be filed or recorded affecting the Facility or the Park or both, or should
any action affecting the title thereto be commenced, RX Technology Inc. shall
give The Great Escape written notice thereof promptly after the same becomes
known to RX Technology Inc., and RX Technology Inc. shall thereafter remedy the
same with respect to the Facility or the Park or both;
(vii) RX Technology Inc.' Trademarks and/or any advertising,
promotion or publicity materials supplied The Great Escape by RX Technology Inc.
hereunder will not violate, infringe upon or give rise to any adverse claim with
respect to any common law or other right whatsoever, including, without
limitation, any copyright, trademark, service mark, right of privacy or
publicity or contract right of any party or violate any other law; and
(viii) Except as otherwise expressly permitted herein. RX
Technology Inc. shall not have the right to use or permit the use of any of The
Great Escape Trademarks, including any depiction of the Park or Affiliates'
Trademarks without The Great Escape prior written consent identifying the use
consented to, which consent may be granted or withheld in the absolute
discretion of The Great Escape. This Section shall survive the termination of
the Agreement.
(ix) Notwithstanding any other provision of this Agreement,
"The Great Escape", within its discretion, reserves the right to designate any
other company or person as the Park sponsor ("Designated Park Sponsor") and
permit the sponsor signage, displays, or other identification of its products or
name on the exterior within the interior of the RX Technology Inc. site as long
as that the interior usage does not interfere with the actual operation of the
RX Technology Inc. operation. RX Technology Inc. shall not be entitled to any
compensation from "The Great Escape" or any "Designated Park Sponsor" for such
usage nor shall RX Technology Inc. be relieved of any of the terms and
conditions of this Agreement. "The Great Escape" agrees that no such signage of
displays shall be affixed to any of RX Technology Inc. product.
10. SUBCONTRACTORS.
The Great Escape acknowledges that RX Technology Inc. has the right
to utilize subcontractors (collectively, the "Subcontractors") to fulfill the
obligations set forth hereunder, subject to The Great Escape prior approval with
respect thereto and the work to be performed thereby. RX Technology Inc. agrees
that (i) the terms of the agreement between RX Technology Inc. and any
Subcontractor will comply with all the terms of this Agreement, including,
without limitation, the provisions concerning criminal background checks of
persons working at the Park for
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or on behalf of RX Technology Inc. and the provisions concerning insurance, (ii)
there will be no disruption (including strike) in the operation of the
Concession whatsoever (even in the event of replacement of the Subcontractors),
and (iii) RX Technology Inc. shall not cause or permit any liens, claims or
encumbrances to be placed on or with respect to the Equipment, Facility, Park or
any other property of The Great Escape or RX Technology Inc. which is the
subject of this Agreement.
11. ASSIGNMENT.
The obligations of RX Technology Inc. herein are personal in nature
and this Agreement and the obligations of RX Technology Inc. hereunder shall not
be assigned or otherwise transferred by RX Technology Inc., in whole or in part,
to any third party without the prior written consent of The Great Escape. The
Great Escape may assign this Agreement to any affiliate of The Great Escape. For
purposes of this Agreement, the term "assigned" or "assignment" shall include,
without limitation, a consolidation or merger of RX Technology Inc. with or into
another party, a reorganization or a sale of all or substantially all of the
assets of RX Technology Inc. to another party, and/or transfer of a controlling
interest in RX Technology Inc.' business in or to another party.
12. INDEMNITY.
RX Technology Inc. covenants that it will protect, defend, hold
harmless and indemnify The Great Escape, its directors, officers, employees,
agents, subsidiaries, affiliates, partners and parent companies from and against
any and all expenses, claims, actions, liabilities, attorney's fees and costs,
damages and losses of any kind or nature whatsoever (including, without
limitation of the foregoing, death of or injury to persons and damage to
property), actually or allegedly resulting from or connected with the operation
of the Facility and/or the Concession (including, without limitation of the
foregoing, goods sold, work done, services rendered or products utilized
therein, advertising and promotion therefor, lack of repair in or about the area
occupied or arising out of any actual or alleged infringement of any patent or
claim of patent, copyright, trademark, service mark, or trade name) or from the
omission or commission of any act, lawful or unlawful, or breach of this
Agreement by RX Technology Inc. or its agents or employees, whether or not such
act is within the scope of the employment of such agents or employees and not
due to the negligence or willful misconduct of The Great Escape or its employees
and agents. This Section shall survive the termination of the Agreement.
13. INSURANCE.
A. To insure RX Technology Inc.' performance of the obligations and
warranties as set forth herein, but not by way of limitation, RX Technology Inc.
agrees, at its expense, to procure and maintain Comprehensive General Liability
against claims for bodily injury, personal injury or death and property damage,
Contractual Liability, Products Liability, Automobile Liability against claims
for bodily injury, personal injury or death and property damage, Risk Builder's
Risk Insurance, including coverage against collapse, written on a completed
value basis and Worker's Compensation Insurance, including an employer liability
endorsement (collectively, the "Insurance") each covering claims occurring upon,
in or about the Park, and on, in or about the adjoining streets, sidewalks and
passageways and identifying this Agreement, the Park and The Great Escape Theme
Parks Inc. as being named as additional insured on the Insurance policies
13
<PAGE>
described herein, including any renewals of such Insurance. The Insurance shall
apply separately to each insured against whom a claim is made or suit is
brought. The Insurance shall remain in full force and effect for the Term of
this Agreement and one (1) year thereafter, and all such Insurance shall include
a waiver of subrogation against The Great Escape. This Section shall survive the
termination of the Agreement.
B. The Insurance shall be written by a company rated "A" or better
by Best Insurance Reports, or by such other company consented to in writing by
The Great Escape. The policy of Insurance will provide, inter alia, for thirty
(30) days advance notice to The Great Escape and RX Technology Inc. of any
proposed policy modification or cancellation. Upon any cancellation and/or
modification of any Insurance policy required hereby, and prior to the effective
date thereof, RX Technology Inc. shall deliver replacement insurance to The
Great Escape. RX Technology Inc. shall forward the Certificate of Insurance form
attached hereto and incorporated herein as Exhibit D to its insurer for
execution and transmit such executed Certificate to The Great Escape promptly
after execution of this Agreement, and RX Technology Inc. shall also supply The
Great Escape with its official Certificate of Insurance promptly after execution
of this Agreement for its records.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out of
a single occurrence and $3,000,000 for all claims in the aggregate.
D. All Insurance policies required to be maintained shall be primary
and shall not require contribution from any coverage maintained by The Great
Escape, and shall not contain, without The Great Escape prior written consent,
any special or non-customary exclusions.
E. RX Technology Inc. shall further, upon request, furnish The Great
Escape with a certificate from RX Technology Inc.' insurance carrier certifying
that RX Technology Inc. has obtained Worker's Compensation insurance upon its
employees, or an opinion of counsel satisfactory to The Great Escape that such
coverage is not required.
F. RX Technology Inc. understands that The Great Escape rights and
RX Technology Inc.' obligations hereunder shall not be limited or affected by
the provisions of this Section 13.
14. BREACH.
In the event of breach of any provision of this Agreement by RX
Technology Inc. or in the event RX Technology Inc. should become insolvent, file
a voluntary petition in bankruptcy, have a receiver, liquidator or trustee in
bankruptcy appointed over its affairs, have a significant material adverse
change in its financial condition, and notwithstanding The Great Escape right to
receive liquidation damages hereunder, in lieu thereof, The Great Escape may, at
its option, then or at any time thereafter while said breach continues, upon
fifteen (15) days prior written notice to RX Technology Inc., terminate this
Agreement and the license and privileges granted hereby and be relieved of all
further obligation hereunder arising after the date of termination. In the event
of
14
<PAGE>
termination hereunder, RX Technology Inc. shall then quit and surrender the
premises as set forth in this Agreement and the license and privileges granted
hereby shall then terminate; provided, however, that RX Technology Inc. shall
remain liable for all obligations under this Agreement, and The Great Escape
may, in addition to any remedy herein provided, recover from RX Technology Inc.
any damages to which it may be entitled in law or equity. This Section shall
survive the termination of this Agreement.
15
<PAGE>
15. NOTICES
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To The Great Escape: The Great Escape and Splashwater Kingdom
P.O. Box 511
Lake George, NY 12845
Attn: David Edwards, Director of Retail
To RX Technology Inc.: RX Technology Inc.
P.O. Box 9112
Mandeville, LA 70470
Attn: D. Rex Gay
Fax: 504-727-9815
or to such other addresses as the parties may direct by written notice given as
herein above provided. Notice shall be deemed given when received as evidenced
by the return receipt or the date such notice is first refused, if that be the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
16. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, RX
Technology Inc. may, subject to any indebtedness of RX Technology Inc. to the
Great Escape, promptly remove RX Technology Inc.' Equipment and Facility from
the Park, except that The Great Escape Trademarks or The Great Escape
Affiliates' Trademarks shall be removed from the Equipment and Facility and
remain at the Park, and RX Technology Inc. shall quit and surrender the Facility
in the Park in good condition, reasonable wear and tear excepted. Unless the
parties otherwise agree, if RX Technology Inc. fails to remove the Facility from
the Park within five (5) days after termination of this Agreement, then RX
Technology Inc. shall be deemed to have abandoned such property and title to the
same shall at that time vest in The Great Escape. Any costs and expenses
incurred by The Great Escape in removing such abandoned property (including the
reasonable value of the services rendered by Park employees in connection
therewith) shall be paid to The Great Escape by RX Technology Inc. promptly
following demand therefor. This Section shall survive the termination of this
Agreement.
17. GOVERNING LAW.
A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State of
New York (the "Specified State") and that the laws of the Specified State shall
govern the construction, interpretation and
16
<PAGE>
enforceability of this Agreement. Should any dispute arise in connection with
the construction, interpretation, performance or enforcement of the provisions
of this Agreement, Each of the parties hereto agree that any such action shall
be brought only in the courts located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the relationship of the parties hereto, (ii) agree that any
such action, suit or proceeding shall be brought in any state or federal court
of competent jurisdiction sitting in the federal court district in the Specified
State, (iii) submits to the jurisdiction of such courts and (iv) to the fullest
extent permitted by law, agree that it will not bring any action, suit or
proceeding in any forum other than as provided herein (but nothing herein shall
affect the right of the Six Flags to bring any action, suit or proceeding in any
other forum to the extent necessary to enforce its rights under this Agreement).
18. RELATIONSHIP OF THE PARTIES.
RX Technology Inc. is an independent contractor. Nothing contained
in or done pursuant to this Agreement shall be construed as creating a
partnership, agency, joint employer, joint venture or landlord-tenant
relationship. Except as otherwise expressly provided in this Agreement, no party
shall become bound, with respect to third parties, by any representation, act or
omission of the other.
19. FORCE MAJEURE.
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God, In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
20. PUBLICITY.
A. The Great Escape shall, at its discretion, develop, direct and
produce any and all advertising and promotion in connection with the Concession
in the Park for the purposes of advertising, promoting, publicizing and
merchandising the Concession in the Park. RX Technology Inc. agrees to
cooperate, as necessary, when requested to provide any advertising or promotion
with respect to the Concession.
B. The Great Escape shall have the right to use RX Technology Inc.'
Trademarks and the names of any person or entity rendering services on or
associated with the Concession, as well as any such person or entity's
biography, photographic or non-photographic likeness and recorded voice.
C. RX Technology Inc. shall not have the right to have or cause to
have sponsors with respect to the Concession without the prior written approval
of The Great Escape.
17
<PAGE>
D. RX Technology Inc. agrees that The Great Escape may obtain
sponsors for the Concession which may include affixing signage in or around the
Concession, and any proceeds The Great Escape derives in connection therewith
shall be solely that of The Great Escape.
21. PROPRIETARY INFORMATION.
RX Technology Inc. agrees that this Agreement and all information
regarding the business operations, policies and practices of The Great Escape
("Proprietary Information") acquired or learned in connection with the
activities conducted under this Agreement shall be deemed confidential and shall
be kept in strict confidence under appropriate safeguards. The term Proprietary
Information, as used herein, does not include any information that is or becomes
internally available to the public other than as a result of disclosure in
violation of this Agreement. This Section shall survive the termination of the
Agreement.
22. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
23. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules hereto)
constitutes the entire agreement between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
agreements and undertakings of the parties pertaining to the subject matter
hereof. This Agreement may not be modified except by written instrument duly
executed by the parties hereto.
18
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto on the day and year first hereinabove written.
The Great Escape Theme Park, LLC.,
(a division of Premier Parks Inc.)
By: /s/ John S. Collins
-------------------------------
John S. Collins
Vice President and General Manager
RX Technology Inc.:
By: /s/ D. Rex Gay
-------------------------------
D. Rex Gay
President
S-1
<PAGE>
Exhibit A
Location(s)
Locations shall be determined by The Great Escape in its sole discretion
and may be changed from time to time in the reasonable discretion of The Great
Escape.
Alternative:
The locations are set forth below, subject to relocation in the reasonable
discretion of The Great Escape.
The Comet Ride Photos
The Alpine Bobsled Ride Photos
Front Gate Photos
Ex. A - 1
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) RX Technology Inc. shall comply with The Great
Escape credit card procedures (the "Credit Card Procedures") (a list of the
Credit Card Procedures in effect as of the date hereof is attached hereto and is
incorporated herein), as The Great Escape may amend them from time to time upon
notice to RX Technology Inc., with respect to acceptance of Credit Cards as
payment for any Goods.
(ii) RX Technology Inc. agrees that it shall not: (A)
discriminate in favor of any Credit Card accepted for payment over another, (B)
require a minimum transaction amount or impose a surcharge as a condition for
honoring Credit Cards, (C) impose a requirement on Credit Card holders to
provide any personal information as a condition for honoring Credit Cards unless
otherwise required by the Credit Card Procedures, (D) make or require a
photocopy of a Credit Card, (E) make a Credit Card sale where only part of the
consideration due is paid by use of such Credit Card, or (F) accept a Credit
Card for any purpose which is prohibited by the Credit Card Procedures.
(iii) RX Technology Inc. shall not make a Credit Card
sale to any person if: (A) the Credit Card being presented has expired according
to the expiration date shown on such Credit Card, (B) the sale has been declined
for authorization, (C) RX Technology Inc. has reasonable grounds to believe the
Credit Card being presented is counterfeit, fraudulent or stolen, or (D) the
signature on the Credit Card does not appear to be the same as the signature on
the sales draft or the spelling of the signature on the sales draft is different
from the spelling of the name on the Credit Card. RX Technology Inc. shall use
reasonable efforts to retrieve any credit card from the customer when instructed
by a service provider in response to an authorization or other inquiry.
(iv) RX Technology Inc. agrees to display symbols of the
Credit Cards, supplied by The Great Escape hereunder, at its Facility in the
Park to effectively inform customers of the Park that the Credit Cards are
honored by RX Technology Inc..
(b) Returns and Adjustments.
(i) All disputes between RX Technology Inc. and any
Credit Card holder respecting any Credit Card transaction hereunder shall be
settled between RX Technology Inc. and such Credit Card holder. RX Technology
Inc. agrees that in the event of a Credit Card dispute, RX Technology Inc. shall
reasonably address the Credit Card holder's concern in a good faith manner.
(ii) RX Technology Inc. shall maintain a fair and
consistent policy for exchange and return of Goods and for the adjustment of
amounts due on Credit Card transactions and such policy shall be the same as
available to cash customers. RX Technology Inc.
Ex. B - 1
<PAGE>
shall make no cash refunds or payments to Credit Card holders for returns or
adjustments on Credit Card sales.
(iii) When a refund or payment is due to a Credit Card
holder for return or adjustment, RX Technology Inc. shall prepare, execute and
deliver to The Great Escape or cause to be delivered to The Great Escape a
legible credit adjustment memo on a form provided or approved by The Great
Escape and deliver to the Credit Card holder a copy of the completed form. Each
credit adjustment memo shall be imprinted with or contain the following: (A) The
Great Escape name and merchant account number, (B) city and address where the
credit or adjustment occurred, (C) Credit Card holder's name and Credit Card
number, (D) Credit Card expiration date, (E) the date of the return or
adjustment and the date of the initial transaction, if available, (F) the amount
of the credit, and (G) a brief description of the Goods returned.
(iv) With respect to each credit adjustment memo
presented to The Great Escape and/or transmitted hereunder, RX Technology Inc.
represents and warrants that: (A) the credit adjustment memo represents an
amount lawfully due to a Credit Card holder for the return or adjustment of
Goods previously purchased with the Credit Card, (B) a sales draft relating to
and including the amount of the credit memo was previously presented to The
Great Escape and/or transmitted hereunder, (C) the credit adjustment memo does
not duplicate information concerning the same transaction in any other credit
slip unless Six Flags requests a resubmission, (D) the signature appearing on
the credit adjustment memo is that of an authorized employee of RX Technology
Inc., and (E) RX Technology Inc. has complied fully with the terms of this
Agreement.
(c) Failure to Comply.
In the event RX Technology Inc. fails to comply with the
Credit Card Procedures or the terms of this Exhibit B for a given Credit Card
transaction and said sales draft is returned to The Great Escape, or in the
event Goods are returned by the customer that paid by Credit Card, RX Technology
Inc. agrees that The Great Escape may, in its sole discretion: (i) deduct the
amount of said Credit Card transaction from RX Technology Inc.' share of the
revenue from the Concession due and owing RX Technology Inc., if any, or (ii)
bill RX Technology Inc. in the amount of said Credit Card transaction, and RX
Technology Inc. shall pay The Great Escape the same within five (5) days of
receipt therefor, or (iii) demand payment from RX Technology Inc. in the amount
of said Credit Card transaction and RX Technology Inc. shall pay The Great
Escape immediately upon its receipt of The Great Escape demand. Failure of RX
Technology Inc. to pay The Great Escape as set forth herein for any outstanding
Credit Card transactions shall constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event The Great Escape agreement with respect to
the Credit Cards terminates or The Great Escape, in its sole discretion,
determines that it does not want RX Technology Inc. to accept Credit Cards as
payment for Goods hereunder, RX Technology Inc. agrees to discontinue acceptance
of Credit Cards and remove the Credit Card symbols from the Facility upon
notification by The Great Escape.
Ex. B - 2
<PAGE>
2. CHECK.
(a) Acceptance.
RX Technology Inc. represents and warrants that it shall
comply with The Great Escape current check authorization procedures (the "Check
Authorization Procedures") (a copy of the TeleCheck Authorization Procedures in
effect as of the date hereof has been received by RX Technology Inc. and is
incorporated herein), as The Great Escape may amend from time to time upon
notice to RX Technology Inc., prior to acceptance of a check as payment for
Goods. Notwithstanding the foregoing, RX Technology Inc. agrees that it shall
not contact TeleCheck directly, as set forth in Section 3 of the Check
Authorization Procedures but shall contact the Merchandise Office or a
Merchandise Supervisor to obtain authorization from TeleCheck.
(b) Returns and Adjustments.
(i) All disputes between RX Technology Inc. and any
customer respecting any check transaction hereunder shall be settled between RX
Technology Inc. and such customer. RX Technology Inc. agrees that in the event
of a dispute, RX Technology Inc. shall reasonably address the customer's concern
in a good faith manner.
(ii) RX Technology Inc. shall maintain a fair and
consistent policy for exchange and return of merchandise and for the adjustment
of amounts due on check transactions and such policy shall be the same as
available to cash and credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX Technology Inc. shall prepare, execute and deliver to
The Great Escape or cause to be delivered to The Great Escape a legible
Merchandise Return Slip ("Return Slip").
(iv) With respect to each legible Return Slip presented
to The Great Escape hereunder, RX Technology Inc. represents and warrants that:
(A) the Return Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased with a check, (B) a sales draft
relating to and including the amount of the Return Slip was previously presented
to The Great Escape and/or transmitted hereunder, (C) the Return Slip does not
duplicate information concerning the same transaction in any other Return Slip
unless The Great Escape requests a resubmission, (D) the signature appearing on
the Return Slip is that of RX Technology Inc., and (E) RX Technology Inc. has
complied fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technology Inc. fails to comply with the
Check Authorization Procedures for a given check and said check is returned to
The Great Escape, or in the
Ex. B - 3
<PAGE>
event Goods are returned by the customer that paid by check. RX Technology Inc.
agrees that The Great Escape may, in its sole discretion: (A) deduct the amount
of said check from RX Technology Inc.' share of the revenue from the Concession
due and owing RX Technology Inc., if any, or (B) bill RX Technology Inc. in the
amount of said check, and RX Technology Inc. shall pay The Great Escape the same
within five (5) days of receipt therefor, or (C) demand payment from RX
Technology Inc. in the amount of said check and RX Technology Inc. shall pay The
Great Escape immediately upon its receipt of The Great Escape demand. Failure of
RX Technology Inc. to pay The Great Escape as set forth herein for any
outstanding checks shall constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event The Great Escape agreement with TeleCheck
terminates and The Great Escape does not wish to continue acceptance of checks
in the Park or The Great Escape, in its sole discretion, determines that it does
not want RX Technology Inc. to accept checks as payment for Goods hereunder, RX
Technology Inc. agrees to discontinue acceptance of checks upon notification by
The Great Escape.
3. CASH.
(a) Acceptance.
RX Technology Inc. shall comply with The Great Escape
cash handling procedures ("SFGAM Cashier Procedures") a copy of which is
attached hereto.
RX Technology Inc. represents and warrants that it shall
cause all cash received by or on RX Technology Inc.' behalf for sale of Goods
hereunder to be rung in the cash register or other The Great Escape approved
cash collection equipment and deposited in such cash register or other equipment
at the time of sale.
(b) Returns and Adjustments.
(i) All disputes between RX Technology Inc. and any
customer respecting any cash transaction hereunder shall be settled between RX
Technology Inc. and such customer, RX Technology Inc. agrees that in the event
of a dispute, RX Technology Inc. shall reasonably address the customer's concern
in a good faith manner.
(ii) RX Technology Inc. shall maintain a fair and
consistent policy for exchange and return of merchandise and for the adjustment
of amounts due on cash transactions and such policy shall be the same as
available to credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX Technology Inc. shall prepare, execute and deliver to
The Great Escape or cause to be delivered to The Great Escape a legible Return
Slip.
(iv) With respect to each legible Return Slip presented
to The Great Escape hereunder, RX Technology Inc. represents and warrants that
(A) the Return Slip
Ex. B - 4
<PAGE>
represents an amount lawfully due customer for the return or adjustment of Goods
previously purchased in cash, (B) a sales draft relating to and including the
amount of the Return Slip was previously presented to The Great Escape and/or
transmitted hereunder, (C) the Return Slip does not duplicate information
concerning the same transaction in any other Return Slip unless The Great Escape
requests a resubmission, (D) the signature appearing on the Return Slip is that
of RX Technology Inc., and (E) PA Technology Inc. has complied fully with the
terms of this Agreement.
(v) RX Technology Inc. agrees that in the event Goods
hereunder are returned on a day that said Goods were not purchased, The Great
Escape may, in its sole discretion: (A) deduct the amount of said return from RX
Technology Inc.' share of the revenue from the Concession due and owing RX
Technology Inc., if any; (B) bill RX Technology Inc. in the amount of said
return and RX Technology, Inc. shall pay The Great Escape the same within five
(5) days of receipt therefor or (C) demand payment from RX Technology Inc. in
said amount and RX Technology Inc. shall pay The Great Escape immediately upon
receipt of The Great Escape demand. Failure of RX Technology Inc. to pay The
Great Escape as set forth herein for any amount outstanding shall constitute a
breach of the Agreement.
Ex. B - 5
<PAGE>
Credit Card Procedures
RX Technology Inc. represents and warrants that it shall follow the
following Credit Card Procedures, as may be amended from time to time by The
Great Escape upon notice to RX Technology Inc.:
1. Each Credit Card sale shall be evidenced by a legible sales draft
(the "Draft") on a form approved by The Great Escape. indicating the full amount
due for Goods sold hereunder.
2. Each Draft shall be imprinted by RX Technology Inc., or show
evidence of the electronic equivalent obtained through use of a terminal which
reads the magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) The Great
Escape name and merchant account number, (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including
the account number, name and expiration date of the Credit Card, (iv) the date
the transaction takes place and the price of the Goods, (v) total amount of the
transaction, including all applicable taxes, (vi) description of Goods, and
(vii) signature of the Credit Card holder.
4. RX Technology Inc. shall compare the signature on the Draft with
the signature on the Credit Card to ascertain that they are the same, and if the
Credit Card has a photograph of the Credit Card holder, verify that the Credit
Card holder and the person presenting the Credit Card appear to be the same
person. If RX Technology Inc. believes there is a discrepancy in the signature
or if the photographic identification is uncertain, RX Technology Inc. shall
contact the service provider for instructions.
5. If the signature panel on the Credit Card is blank, RX Technology
Inc. shall do the following: (i) review positive identification to determine
that the user is the Credit Card holder; such identification must consist of a
current official government identification document (such as a passport or
driver's license) that bears the Credit Card holder's signature, (ii) indicate
such positive identification (including any serial number and expiration date)
on the Draft and (iii) require the Credit Card holder to sign the signature
panel of the Credit Card prior to completing the transaction.
6. For each Credit Card sale, RX Technology Inc. shall deliver or
cause to be delivered a copy of the completed sales draft to the customer,
evidencing the full amount due for the Goods.
7. RX Technology Inc. shall not complete a sales transaction without
first obtaining an authorization from the designated service provider for the
total amount of the transaction. RX Technology Inc. shall print legibly on the
Draft the authorization/approval code, evidencing any authorization so obtained.
Ex. B - 6
<PAGE>
Exhibit C
Employees
RX Technology Inc.' Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Supervisor/Manager
1 Hosts/Hostesses
Ex. C - 0
<PAGE>
Exhibit D
The Great Escape _________
__________________________
__________________________
CERTIFICATE OF INSURANCE
COMPANIES AFFORDING COVERAGE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
<S> <C>
COMPANY COMPANY
LETTER A LETTER D
- --------------------------------------------------------------------------------------------------
COMPANY COMPANY
LETTER B LETTER E
- --------------------------------------------------------------------------------------------------
COMPANY COMPANY
LETTER C LETTER F
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
COVERAGES
THIS CERTIFICATE IS TO CERTIFY TO FRONTIER CITY ______ OR ANY SUBSIDIARIES
HEREAFTER REFERRED TO AS "SIX FLAGS" THAT POLICIES DESCRIBED BELOW HAVE BEEN
ISSUED TO THE INSURED BY THE UNDERSIGNED AND ARE IN FULL FORCE AND EFFECT AT
THIS TIME. IF ANY CHANGES ARE MADE IN THE POLICIES WHICH EFFECT THE INTEREST OF
SIX FLAGS OR IF ANY OF THE POLICIES ARE CANCELED AT THE REQUEST OF EITHER PARTY,
WRITTEN NOTICE WILL BE GIVEN BY THE INSURANCE COMPANY TO SIX FLAGS AT LEAST
THIRTY (30) DAYS PRIOR TO THE EFFECTIVE DATE THEREOF
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
CO. TYPE OF INSURANCE POLICY EFFE. EXP. LIMITS IN THOUSANDS
LTR. NUMBER DATE DATE
- --------------------------------------------------------------------------------------------------
WORKERS COMPENSATION STATUTORY
EMPLOYERS LIABILITY (NOTE 1) EA. ACCIDENT $____
CERTIFICATE HOLDER NAMED ALT DISEASE-POLICY LIMIT $____
EMPLOYER DISEASE EA. EMPLOYEE $____
- --------------------------------------------------------------------------------------------------
GENERAL LIABILITY (NOTE 2) GENERAL AGG. $____
COMPREHENSIVE GENERAL LIABILITY PRODUCT-COMP/OPS AGG. $____
CLAIMS MADE OCCURRENCE PERSONAL & ADV. INJURY$____
CERT. HOLDER NAMED ADDNL. INSURED EACH OCCURRENCE $____
WAIVER OF SUBROGATION WAIVED
AGAINST CERT. HOLDER FIRE DAMAGE
HOLD HARMLESS AGREEMENT WITH CERT. (ANY ONE FIRE) $____
HOLDER INSURED MEDICAL EXPENSE
PROFESSIONAL LIABILITY (ANY ONE PERSON) $____
- --------------------------------------------------------------------------------------------------
AUTO LIABILITY COMBINED SINGLE LIMIT $____
ANY AUTO BODILY INJURY
ALL OWNED (PER PERSON) $____
SCHEDULED AUTOS BODILY INJURY
CERT. HOLDER NAMED ADDNL. INSURED (PER ACCIDENT) $____
WAIVER OF SUBROGATION AGAINST
SIX FLAGS PROPERTY DAMAGES $____
- --------------------------------------------------------------------------------------------------
CARE, CUSTODY AND CONTROL (NOTE 4) EACH OCCURRENCE $____
(IF APPLICABLE) AGGREGATE $____
ALL RISK DEDUCTIBLE $____
LEGAL LIABILITY FORM
- --------------------------------------------------------------------------------------------------
EXCESS LIABILITY (NOTE 5) EACH OCCURRENCE $____
UMBRELLA AGGREGATE $____
OTHER THAN UMBRELLA FORM DEDUCTIBLE $____
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS /LOCATIONS/RESTRICTIONS
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
PRODUCER/AGENT INSURED
- --------------------------------------------------------------------------------------------------
I DO HEREBY CERTIFY THAT THE INSURERS LISTED HEREIN ARE
AUTHORIZED TO TRANSACT BUSINESS IN AND FOR THE STATE OF DATE ISSUED___________
_____ AND CARRY A. M. BEST RATINGS OF _________________
____________________________
AUTHORIZED REPRESENTATIVE REVERSE SIDE MUST BE COMPLETED
____________________________ (OVER)
- --------------------------------------------------------------------------------------------------
</TABLE>
Ex. D - 1
<PAGE>
<TABLE>
POLICIES LISTED ON REVERSE SIDE INCLUDE COVERAGE FOR: CHECK ONE
<S> <C> <C>
YES NO
NOTE (1) WORKERS COMPENSATION AND EMPLOYER'S LIABILITY
(A) VOLUNTARY COMPENSATION ENDORSEMENT? ______ ______
(B) DOES POLICY INCLUDE "WAIVER OF SUBROGATION ENDORSEMENT"
AS REQUIRED BY CONTRACT WITH SIX FLAGS? ______ ______
(C) ALTERNATE EMPLOYER ENDORSEMENT IN FAVOR OF SIX FLAGS? s ______ ______
(D) COVERAGE IS AFFORDED IN THE STATES OF:
______________________________________
NOTE (2) COMPREHENSIVE GENERAL LIABILITY
(A) COVERAGE WRITTEN ON A COMPREHENSIVE FORM? ______ ______
(B) PRODUCTS OR COMPLETED OPERATIONS COVERAGES INCLUDED? ______ ______
(C) IS POLLUTION COVERAGE INCLUDED? ______ ______
(D) CONTRACTUAL LIABILITY COVERING HOLD HARMLESS AGREEMENT
IN CONTRACT WITH SIX FLAGS? ______ ______
(E) WAIVER OF SUBROGATION ENDORSEMENT AGAINST SIX FLAGS? ______ ______
(F) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ______ ______
(G) HAVE THERE EVER BEEN ANY PROFESSIONAL LIABILITY ACTIONS
AGAINST THE INSURED? IF YES, PLEASE EXPLAIN.___________ ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
HAVE THERE BEEN ANY SETTLEMENTS? IF YES, PLEASE EXPLAIN. ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
HAVE THERE BEEN ANY JUDGEMENTS? IF YES, PLEASE EXPLAIN. ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
NOTE (3) AUTO LIABILITY
(A) ALL OWNED, HIRED AND NON-OWNED VEHICLES? ______ ______
(B) WAIVER OF SUBROGATION AGAINST SIX FLAGS? ______ ______
(C) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ______ ______
NOTE (4) CARE, CUSTODY AND CONTROL
(A) IS COVERAGE INCLUDED FOR DAMAGES TO SIX FLAGS
PROPERTY WHILE BEING RAISED, LIFTED OR LOWERED WHILE
USING CRANE, BOOMS OR HOISTS? ______ ______
NOTE (5) UMBRELLA FORM
(A) IS COVERAGE EXCESS OVER PRIMARY COMMERCIAL LIABILITY AND
EMPLOYERS LIABILITY? ______ ______
(B) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ______ ______
(C) WAIVER OF SUBROGATION AGAINST SIX FLAGS? ______ ______
</TABLE>
Ex. D - 2
<PAGE>
EXHIBIT 10.29
Six Flags Great Escape
Front Gate
<PAGE>
AGREEMENT
THIS AGREEMENT is made as of this 1st day of April 2000, by and between
The Great Escape Theme Park, LLC, a division of Premier Parks Inc., a Delaware
corporation, having offices at P.O. Box 511, Lake George, NY 12845 ("The Great
Escape"), and RX Technology, a Nevada, corporation, having offices at 2264
7th Street, Mandeville, LA 70471(RX Technology).
WITNESSETH
WHEREAS, The Great Escape owns, operates or manages the theme amusement
facility which is open to the general public and known as The Great Escape and
Splashwater Kingdom (the "Park").
WHEREAS, RX Technology Inc. desires to operate a retail concession known
as RX Technology Inc. (the "Concession") to sell Digital Photographs (the
"Goods") in the Park as set forth herein:
WHEREAS, The Great Escape desires to grant RX Technology Inc. a license to
operate the Concession in the Park, subject to the terms and conditions set
forth herein.
NOW, THEREFORE in consideration of the foregoing premises and the mutual
covenants contained herein, The Great Escape and RX Technology Inc. agree as
follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination,
The Great Escape grants RX Technology Inc. a license to operate the Concession
in the Park in such locations of the Park as is set forth on Exhibit A hereto
during the period of time (the "Term") commencing April 1, 2000 (the
"Commencement Date") and terminating at the end of the Park's 2002 operating
season (the "Termination Date").
2. OPERATION.
A. Hours of Operation.
RX Technology Inc. agrees to operate the Concession during the
hours and days, including Sundays and holidays, that the Park is open for
business in accordance with schedules prepared by The Great Escape which The
Great Escape may modify in The Great Escapes' sole discretion at any time on
twenty-four (24) hours notice to RX Technology Inc. and such additional hours as
are required by The Great Escape (the "Operating Hours"). RX Technology Inc.
acknowledges that The Great Escape will suffer great harm if RX Technology Inc.
breaches the agreement set forth in this subsection, the amount of which would
be difficult to determine. Therefore, RX Technology Inc. agrees to pay The Great
Escape liquidated damages of $500.00 for each Park operating day that RX
Technology Inc. opens the Concession thirty (30) minutes after the agreed
opening time of the Concession and/or closes the Concession thirty (30) minutes
before the agreed upon closing time. Upon notice thereof by The Great Escape and
such liquidated
<PAGE>
damages amount shall be increased an additional $750.00 for each successive
violation of Park Operating Hours upon notice thereof by The Great Escape.
B. Approval of Goods/Services.
RX Technology Inc. agrees to submit samples of all products,
detailed plans, specifications, drawings and other information with respect to
Goods for sale to customers in the Park in connection with the Concession, for
The Great Escape approval in advance of sale of the same. RX Technology Inc.
agrees to make such changes to the Goods, at its sole cost and expense, as The
Great Escape shall reasonably determine. RX Technology Inc. also agrees to
coordinate with the Park in coding each of RX Technology Inc. Goods and
inputting the same in the cash register for tracking purposes. To the extent
requested by The Great Escape, RX Technology Inc. shall comply with The Great
Escape point of sale and other information systems requirements.
C. Price of Goods.
(i) RX Technology Inc. agrees to submit to The Great Escape
for its review and approval, a retail price list of all RX Technology Inc.'
Goods for sale to customers of the Park (the "Approved Price List") at least two
(2) weeks prior to Commencement Date or any proposed change in any previously
approved price list, RX Technology Inc. agrees to make changes to the Approved
Price List as The Great Escape shall reasonably request. RX Technology Inc.
shall be responsible for all costs and expenses associated with production and
printing of the Price List and any changes thereto, and such costs shall not be
deducted from Net Revenue (as hereinafter defined).
(ii) RX Technology Inc. agrees to make changes to the Approved
Price List (the "Revised Price List") at any time during the Term if the parties
mutually determine that an adjustment is appropriate. RX Technology Inc. shall
be responsible for all costs and expenses associated with production and
printing of the Revised Price List, and such costs shall not be deducted from
Net Revenue (as hereinafter defined).
(iii) RX Technology Inc. agrees that it shall not make its
Goods available to any party free of charge or at a discounted price unless RX
Technology Inc. is engaging in sampling activities approved by The Great Escape,
etc. Notwithstanding the foregoing, RX Technology Inc. agrees to offer such
discounts on its Goods as The Great Escape shall require and as The Great Escape
shall offer in locations owned by The Great Escape. RX Technology Inc. shall, at
all times, charge customers, including without limitation, family members,
employees and business associates, the price set forth on the Approved Price
List for its Goods except as otherwise expressly set forth herein.
(iv) RX Technology Inc. agrees that any merchandise/products
that are held for Guests by RX Technology Inc. must be taken to Guest Relations
at Park closing each operating day for the Guest to pick up. Failure to do so
will result in a $100.00 fine for each occurrence that The Great Escape must
retrieve product held by RX Technology Inc..
D. Methods of Sale: Payment and Return Policies.
2
<PAGE>
(i) The Goods shall be available for sale to customers of the
Park as follows: by mail, telephone order, or at point of purchase (a "Method of
Sale"). A Method of Sale shall be discontinued at the discretion of The Great
Escape.
(ii) The following forms of payment for RX Technology Inc.
Goods will be accepted: American Express, MasterCard, Visa, and Discover credit
cards (collectively, the "Credit Cards"), checks, and cash (each, a "Form of
Payment"). The Great Escape may, in its sole discretion discontinue and, if
applicable, require RX Technology Inc. to discontinue any Form of Payment for
Goods sold hereunder. Conversely, The Great Escape may, in its sole discretion,
require RX Technology Inc. to accept such additional forms of payment as may be
accepted by The Great Escape in the future; and in so doing, RX Technology Inc.
agrees to submit to such reasonable rules/restrictions with respect thereto.
Payment for the Goods shall be in accordance with the provisions of Exhibit B -
Payment/Return Agreement, which is attached hereto and incorporated herein.
E. Reports and Records.
(i) Upon commencement of RX Technology Inc.' daily operations,
RX Technology Inc. shall follow cashier procedures Exhibit B-Supplement pick up
a cash till from the Park's cash control facility, and within one (1) hour after
the close of each Park day, RX Technology Inc. shall deliver to Park's cash
control facility the following: (a) remaining cash till, (b) a daily report of
the day's operations on The Great Escape "Register Balance Form", and (c) the
day's daily gross receipts, including without limitation credit card sales
drafts, credit memos and all other materials evidencing sales transactions
during such day (collectively, the "Deposits"). Such Deposits are received
subject to audit by The Great Escape as set forth herein and The Great Escape
may correct and credit or debit RX Technology Inc. for any inaccuracies or
errors in RX Technology Inc.' computation of Deposits. The Great Escape may
refuse to accept or revoke acceptance of any Deposits, including any sales
drafts or credit adjustments, which are illegible or which fail to comply with
the terms of this Agreement, including, but not limited to, any federal or state
law.
(ii) RX Technology Inc. shall retain copies of sales drafts
and other materials evidencing sales transactions related to sale of Goods for
the Term of the Agreement from date of transaction. This Section shall survive
the termination of the Agreement.
F. Compliance with Laws.
RX Technology Inc. agrees that at all times during the Term it
shall be in compliance with all laws, rules and regulations with respect to
operation of the Concession in the Park, including, without limitation, all
environmental and employment laws, rules and regulations. RX Technology Inc.
agrees that is shall be responsible for obtaining, at its sole cost and expense,
all licensing and/or permits required in connection with operation of the
Concession in the Park.
G. Employees.
3
<PAGE>
(i) RX Technology Inc. acknowledges that it has no authority
to employ persons on behalf of The Great Escape, and no employees or agents of
RX Technology Inc. shall be deemed to be agents or employees of The Great
Escape.
(ii) Without The Great Escape prior written consent, RX
Technology Inc. shall not, until after the second anniversary of the end of the
Term, solicit for the purpose of hiring or employ, directly or indirectly, any
employee employed by, or independent contractor engaging in business with, The
Great Escape, in each case, during the Term. This subsection of the Agreement
shall survive until the second anniversary of the end of the Term.
(iii) RX Technology Inc. represents and warrants that it
shall, at its sole cost and expense, recruit, train, supervise and furnish the
services of at least {number} (#) persons to operate the, and perform services
in connection with the Concession as set forth in Exhibit C attached hereto and
incorporated herein ("RX Technology Inc.' Employees") during Operating Hours. RX
Technology Inc. acknowledges that The Great Escape will suffer great harm if RX
Technology Inc. breaches the agreement set forth in this subclause, the amount
of which would be difficult to determine. Therefore, RX Technology Inc. agrees
to pay The Great Escape liquidated damages of $250.00 for each Park operating
day that RX Technology Inc. fails to furnish the services of {number} (#)
trained persons to operate the Concession.
(iv) RX Technology Inc. shall be fully responsible for all RX
Technology Inc. Employees, including without limitation, responsibility for all
salaries and other compensation, withholding taxes, worker's compensation
insurance, union dues, if applicable, and other required payments in connection
with such employees and shall be in compliance with all laws, rules and
regulations with respect thereto.
(v) Each prospective employee of RX Technology Inc. shall
complete an employment application, the form of which must be approved by The
Great Escape, prior to beginning work in the Park.
(vi) RX Technology Inc. agrees to use best efforts to cause
its employees to attend Park training/orientation programs as may be required by
The Great Escape and comply with Park rules and regulations, including without
limitation submission to drug testing, as may be required. Pending availability
of desired Park Orientation date and time, no RX Technology Inc. employees will
be scheduled for Park orientation with out five days written notice from RX
Technology Inc..
(vii) RX Technology Inc. agrees to verify, at its sole cost
and expense, the references of RX Technology Inc.' Employees, including without
limitation, prior positions of employment, reasons for leaving prior positions,
age, education, criminal records, immigration status, and right to work in the
United States and use due diligence to determine if any of RX Technology Inc.'
Employees have provided false information or omitted significant information
with respect to their backgrounds and/or prior employment.
4
<PAGE>
(viii) RX Technology Inc. represents and warrants that it
shall not, to RX Technology Inc., knowledge, employ any person to work in the
Park who has a criminal history without The, Great Escape knowledge and approval
with respect to said employment. RX Technology Inc.' knowledge, for the purpose
described in the immediately preceding sentence, is the knowledge that RX
Technology Inc. would have known had RX Technology Inc. performed a reference
check of the type performed by The Great Escape. RX Technology Inc. acknowledges
that great harm can be suffered by The Great Escape if a RX Technology Inc.
employee is discovered to have a criminal record that could have been discovered
with a criminal history background check of the type performed by The Great
Escape with respect to all prospective employees of The Great Escape. The
parties agree that it will be difficult to determine the damages suffered by The
Great Escape in the event of RX Technology Inc.' failure to undertake such
background checks. Accordingly, the parties agree that in the evtent RX
Technology Inc. employs an individual for work in the Park for whom RX
Technology Inc. has not, prior to hiring such person, undertaken a criminal
history background check of the type performed by The Great Escape, then RX
Technology Inc. shall pay The Great Escape liquidated damages of $1,000.00 with
respect to each such employee of RX Technology Inc. regardless of whether the
background check would have revealed any evidence of criminal history.
(ix) At the request of The Great Escape, RX Technology Inc.
shall make available to The Great Escape all information obtained with respect
to its employees, including, without limitation, criminal history background
checks.
(x) RX Technology Inc. agrees to terminate employment at the
Park for any RX Technology Inc. Employee working in the Park who: (a) is
subsequently discovered to have a criminal history and, after being advised of
the same, The Great Escape does not approve said employment, (b) fails to comply
with Park rules or (c) made material misstatements or omissions on their
employment application. RX Technology Inc. agrees to indemnify The Great Escape
from and against any claims by RX Technology Inc.' Employees arising from or
related to such dismissals.
(xi) The Great Escape agrees that RX Technology Inc. may offer
RX Technology Inc.' Employees discounts on Park admission and food/merchandise
at the Park that The Great Escape offers its employees in accordance with Park
policy.
(xii) RX Technology Inc. has the option to provide costumes
for RX Technology Inc.'s employees. The Great Escape will approve the costumes
provided by RX Technology Inc.. RX Technology Inc. is to submit costume to The
Great Escape for approval no later then four weeks prior to Park Opening
(`Commencement Date"). RX Technology Inc. also has the option to purchase park
approved costumes from The Great Escape for {Lessee names}`s employees. Park
shoes worn by RX Technology Inc. are to be within The Great Escape guidelines.
All costume charges will be deducted from RX Technology Inc. weekly Net revenue.
It will be the responsibility of RX Technology Inc. to collect costume charges
from RX Technology Inc. employees.
3. FACILITY.
5
<PAGE>
A. Rights/Responsibilities.
(i) In connection with RX Technology Inc.' operation and
management of the Concession. The Great Escape agrees that RX Technology Inc.
shall be entitled use of and/or access to: (a) the facility at which the
Concession is operated (the "Facility"), (b) adjacent portions of the Facility,
as may be necessary for the operation and maintenance of the Concession, and (c)
common ways and areas within the Park for incinerator or trash purposes, loading
and unloading supplies and installation, repair and maintenance of Equipment
and/or other elements related to the Concession.
(ii) The Great Escape will be responsible for plumbing, and
electrical expenses related to the operation of the Concession in the Facility.
RX Technology Inc. will be responsible for all telephone call charges and photo
copy charges. The Great Escape also agrees to provide the following: entry to
the Park for RX Technology Inc.' Employees in the performance of their duties,
and access to the Park employee parking areas on a first-come, first-serve basis
to be used in the performance of their duties.
(iii) RX Technology Inc. will be responsible for cleaning the
Facility and surrounding area and removing trash from said areas, the regular
maintenance of the Facility, including the replacement of light bulbs, tubes and
ballasts related to the operation of the Concession in the Facility.
B. Construction.
(i) Prior to the construction of the Facility in the Park at
which the Concession is operated, RX Technology Inc. will submit its plans to
the Park for approval. These plans will include exterior and interior finishes
as well as RX Technology Inc.' proposed signage. RX Technology Inc. will design
the exterior and interior of the Facility and the signage so that they will be
consistent with the theme of the area of the Park in which the Facility is
located and The Great Escape design requirements policy (the "Design Policy") (a
copy of the Design Policy in effect as of the date hereof is attached hereto and
incorporated herein), as The Great Escape may amend from time to time upon
notice to RX Technology Inc..
(ii) RX Technology Inc. agrees to obtain all permits.
consents, approvals and clearances with respect to any construction contemplated
hereunder and comply with all laws, rules and regulations with respect thereto,
including The Great Escape Maintenance Department rules, and shall secure The
Great Escape prior approval with respect to the following: (a) contractors,
subcontractors, designers, architects and materialmen which will perform work or
services or supply materials in connection with the construction of the
Facility, (b) dates of commencement and completion with respect to each phase of
the construction of the Facility and (c) agreements with all contractors,
subcontractors, designers, architects and materialmen. RX Technology Inc. shall
only enter into construction agreements hereunder which permit assignment to The
Great Escape and its affiliates. All construction hereunder shall be made in a
good and workmanlike manner.
(iii) The Great Escape shall have the right, but not the
obligation, to test and inspect the construction of the Facility. RX Technology
Inc. agrees, at its sole cost and expense, to remedy any problems with the
Facility, upon The Great Escape request, including without
6
<PAGE>
limiting the foregoing, problems associated with defective design, engineering,
workmanship, failure of factory construction, materials or any component parts.
(iv) RX Technology Inc. shall not place, maintain, or permit
to be placed or maintained on any exterior portion of the Facility or on the
interior side of or immediately adjacent to any glass door, wall or window of
said Facility, or otherwise display outside said Facility in the confines of the
Park, any signs, advertisements, lettering, trade, brand or service name, mark
or logo, neon lights, flood lights, colored lights, flashing lights or other
exterior lighting without prior written consent of The Great Escape, which
consent may be granted or withheld in the absolute discretion of The Great
Escape. RX Technology Inc. shall not use in, on or about said Facility, or
elsewhere in the Park, any sound producing or reproduction equipment audible
inside or outside said Facility, without the prior written consent of The Great
Escape.
C. Alterations.
Upon approval by RX Technology Inc, in writing, The Great
Escape shall have the right, but not the obligation, to make alterations,
modifications, additions, improvements or updates, at RX Technology Inc.' sole
cost and expense, to the Facility and/or the Equipment, as hereinafter defined
(collectively, the "Alterations"); provided, however, that RX Technology Inc.
shall have been deemed to approve Alterations if: (i) the Alterations are
reasonably required by The Great Escape: (a) for safety, quality or financial
control reasons, or (b) if new technology and improvements are made to the same
type of Facility and/or Equipment in the industry and/or (ii) required by any
applicable laws, rules or regulations. All such Alterations shall be made in a
good and workmanlike manner. RX Technology Inc. agrees to pay The Great Escape
for the reasonable cost of such Alterations within thirty (30) days of receipt
of an invoice therefor.
(i) RX Technology Inc. agrees to make alterations,
modifications, additions, improvements or updates, at its sole cost and expense
(including any necessary design and engineering expenses), to the Facility
and/or the Equipment, as shall be mutually agreed to by the parties and in
accordance with the Design Policy.
(ii) RX Technology Inc. covenants that it will not make, or
suffer or permit to be made, any Alterations in, on, or to the Facility and/or
the Equipment without first: (a) notifying The Great Escape in writing
sufficiently in advance of the commencement thereof to enable The Great Escape
to post or record or both, appropriate and effective notices of
non-responsibility, (b) obtaining the written consent of The Great Escape
thereto, which consent The Great Escape shall not unreasonably withhold provided
that the proposed Alterations are of high quality and in harmony with the
overall design and appearance of the Park, and necessary to operate the
Concession in a safe and efficient manner, (c) obtaining the written approval of
The Great Escape as to all contractors, subcontractors, and materialmen who will
perform work or services or supply materials in connection therewith and (d)
obtaining the written consent of The Great Escape with respect to the proposed
commencement and completion date of such Alterations.
D. Maintenance and Repair.
7
<PAGE>
RX Technology Inc. agrees to properly maintain and keep in
good repair and condition, the Facility and/or the Equipment, at its sole cost
and expense. The Facility and/or the Equipment shall be maintained in keeping
with the themeing and overall aesthetics of the Park. In the event any portion
of the Facility and/or the Equipment is inoperative or a component thereof has
failed or is defective, RX Technology Inc. shall repair the same no later than
seventy-two (72) hours of RX Technology Inc.' knowledge of the same or, in the
case of Equipment, RX Technology Inc. shall secure comparable equipment (the
"Replacement Equipment") and deliver the same to the Park until such time as the
Equipment is repaired. Failure of RX Technology Inc. to comply with the
provisions of this subsection shall constitute default hereunder.
E. Relocation.
RX Technology Inc. agrees that The Great Escape shall have the
right to relocate RX Technology Inc. to another Facility in the Park, for any
reason, provided that The Great Escape agrees to exercise reasonable care to
minimize interference in or to RX Technology Inc.' operations.
F. Ownership.
(i) It is understood and agreed that the Facility and the
improvements thereto, whether made by RX Technology Inc. or The Great Escape
hereunder, shall remain the property of The Great Escape including the
trademarks and other indicia of The Great Escape, including an Alternate Name
(hereinafter defined) ("The Great Escape' Trademarks") and the trademarks of The
Great Escape affiliates, including Warner Bros. and DC Comics ("Affiliates'
Trademarks") shall be the property of The Great Escape and its affiliates and in
the event of expiration or termination hereunder The Great Escape Trademarks and
its Affiliates' Trademarks shall be removed therefrom and returned to The Great
Escape at RX Technology Inc.' sole cost and expense.
(ii) It is further understood and agreed that the improvements
thereto, whether made by RX Technology Inc. or The Great Escape hereunder, shall
remain the property of The Great Escape.
G. Interference with Parks Operations.
RX Technology Inc. understands that this Agreement may not be
asserted to affect or impede The Great Escape normal Park operations, including
without limitation, upgrading Park equipment, building and/or facilities,
buying/selling Park games or attractions, entering into agreements with other
parties or locating or changing other facilities, equipment, walkways or signage
into or surrounding the Facility, each without the consent of RX Technology
Inc. RX Technology Inc. shall have no exclusive rights with respect to the
operation of concessions in the Park similar in nature or type to the
Concession.
4. EQUIPMENT.
A. Description.
8
<PAGE>
(i) RX Technology Inc. agrees to provide, at its sole cost and
expense, all equipment, supplies, furnishings, displays, and other signage, cash
registers, and any other materials necessary to operate the Concession (the
"Equipment"). Notwithstanding the foregoing, RX Technology Inc. agrees that it
shall use only The Great Escape provided credit card processing equipment
(collectively, "Six Flags' Equipment"), as appropriate, for all transactions
and, in consideration therefore, RX Technology Inc. shall pay The Great Escape
no later than thirty (30) days of receipt of an invoice therefore.
B. Delivery, Installation and Removal.
(i) RX Technology Inc. agrees that it shall be responsible for
the shipment, installation and, promptly following the end of the Term, the
removal, of the Equipment, including parts therefor and/or Replacement Equipment
(as hereinafter defined), at its sole cost and expense. RX Technology Inc.
agrees to coordinate with The Great Escape with respect to the dates and times
of shipment and installation of the Equipment, Replacement Equipment and/or
parts therefor.
(ii) The Great Escape shall have the right, but not the
obligation, to test and inspect the Equipment and the installation and operation
of the Equipment during the Term. RX Technology Inc. agrees, at its sole cost
and expense, to remedy any problems with the Equipment and installation thereof,
upon The Great Escape request, including without limiting the foregoing,
problems associated with defective design, engineering, workmanship, failure of
factory construction, materials or any component parts.
C. Additional Equipment.
RX Technology Inc. agrees to install and/or supply additional
Equipment as determined by mutual agreement of the parties, at no additional
cost to The Great Escape.
5. PAYMENT TO RX Technology Inc..
A. RX Technology Inc. shall collect, record and submit the Deposits
of the Concession to The Great Escape and The Great Escape shall pay RX
Technology Inc. the following share of Net Revenues (as hereinafter defined)
during each operating season of the Term as follows:
Year RX Technology Inc. % of Net Revenue
---- -----------------------------------
2000 62%
2001 62%
2002 62%
B. "Net Revenue" means gross revenue of the Concession during the
applicable period less the sales tax paid or payable in respect thereto or
otherwise paid. RX Technology Inc. agrees that The Great Escape shall have the
right to deduct the following from RX Technology Inc.'
9
<PAGE>
share of the Net Revenue: (i) cash shortages, (ii) credit card, check processing
and other transaction costs and charges, including charge backs and return check
amounts and fees related thereto, (iii) the cost of goods taken from The Great
Escape warehouse, to the extent permitted by The Great Escape, or otherwise and
not paid for, (iv) the cost of leased Park equipment, if any, each during the
applicable period, (v) hereof, and (vi) the cost of any bill or charge which is
the basis or which may be the basis for a lien against the Facility as set forth
in more detail in Section 9 (vi) hereof.
C. RX Technology Inc.' share of the Net Revenue will be calculated
at the end of the week. For payment purposes, a week shall be defined as the
seven (7) day period beginning Monday and ending on and including Sunday.
Payments shall be directed as set forth in this Agreement or as RX Technology
Inc. may otherwise direct in writing and shall be payable seven (7) days from
The Great Escape calculation thereof. The Great Escape shall have no further
monetary liability or obligation to RX Technology Inc.. Payments shall be made
to RX Technology Inc. at the address indicated in the first paragraph of this
Agreement or otherwise as requested in writing by RX Technology Inc..
D. Notwithstanding The Great Escape deduction of sales tax from Net
Revenue, RX Technology Inc. represents and warrants that all payments by The
Great Escape to RX Technology Inc. of RX Technology Inc.' share of Net Revenue
hereunder are exempt from any United States federal, state and local taxes or
other assessments, including any withholding taxes. RX Technology Inc. shall be
solely responsible for, and shall pay when due, assessments arising from or in
connection with the receipt by RX Technology Inc. of such Net Revenue.
6. AUDIT RIGHTS.
Until all claims and rights of The Great Escape shall have been
fully ascertained, fixed and paid RX Technology Inc. shall maintain, in
accordance with generally accepted accounting principles, separate and accurate
records of the gross receipts of the Concession at the Park showing in detail
all business transacted by RX Technology Inc.. The Great Escape shall have the
right, at all reasonable times, to examine and inspect such records as well as
any other business records of RX Technology Inc. pertaining to the operation of
the Concession. This Section shall survive the termination of this Agreement.
7. CHANGE IN FINANCIAL CONDITION.
RX Technology Inc. agrees to notify The Great Escape promptly of any
significant/material change in its financial condition.
8. TRADEMARKS.
A. RX Technology Inc. hereby grants The Great Escape the
non-exclusive royalty-free right and license to use RX Technology Inc.'
trademarks, trade names, service marks, logos and symbols. ("RX Technology Inc.'
Trademarks") for the Term of the Agreement in connection with the Concession in
the Park. RX Technology Inc.' Trademarks are and shall remain RX Technology
Inc.' sole and exclusive property. The Great Escape agrees to include a
trademark
10
<PAGE>
symbol (TM) on the first and most prominent reference to RX Technology Inc.'
Trademarks and a protective trademark legend in materials as shall be required
by RX Technology Inc. hereunder.
B. The Great Escape reserves the right to create an alternate name
and/or logo (collectively, the "Alternate Name") for the Concession. The Great
Escape shall own all right, title and interest in and to such Alternate Name,
and all goodwill with respect thereto shall inure to the benefit of The Great
Escape. RX Technology Inc. agrees that any Alternate Name shall be the exclusive
property of The Great Escape.
C. The Great Escape Trademarks are and shall remain the sole and
exclusive property of The Great Escape, and Affiliates' Trademarks are and shall
remain the sole and exclusive property of The Great Escape affiliates, and RX
Technology Inc. shall not use nor permit others to use The Great Escape
Trademarks, including the Alternate Name, and Affiliates' Trademarks for any
purpose without the prior written consent of The Great Escape nor do anything
which could in any way conflict with The Great Escape or its affiliates' use or
ownership of such trademarks.
9. REPRESENTATIONS AND WARRANTIES: ADDITIONAL COVENANTS.
RX Technology Inc. represents and warrants that:
(i) RX Technology Inc. is, and will during the term of this
Agreement be, solvent and able to meet its obligations hereunder as and when
they become due:
(ii) RX Technology Inc. shall not use, or suffer or permit any
person or persons to use, the Equipment and/or Facility for any purpose other
than as set forth herein without the prior written consent of The Great Escape,
or in any unlawful manner or for any unlawful purpose:
(iii) RX Technology Inc. shall comply with, and use its best
efforts to cause its agents and employees to comply with all rules and
regulations of the Park as may be in effect from time to time, RX Technology
Inc. confirms that it has been provided with a copy of the rules and regulations
of the Park;
(iv) RX Technology Inc. will not offer or provide any Goods in
or from the Concession or elsewhere in the Park, without the prior express
written authorization of The Great Escape. Any uncertainty with respect to the
Goods which RX Technology Inc, is authorized to offer or provide shall be
resolved in the manner which most limits and restricts RX Technology Inc.'
authority, and any reasonable interpretation of such authority by The Great
Escape shall be binding upon RX Technology Inc.;
(v) RX Technology Inc. shall maintain, at its sole cost and
expense during the Term of this Agreement, a valid business license and any
other necessary permits or licenses and shall provide proof of same to The Great
Escape;
(vi) RX Technology Inc. shall promptly pay all bills and
charges relating to the Concession in the Park, including any Alterations to the
Equipment and/or the Facility, and shall protect and indemnify The Great Escape
and the Park against all such bills and charges and
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liens relating thereto. In the event that RX Technology Inc. desires to contest
any bill or charge which is the basis or which may be the basis for a lien
against the Facility constituting the Concession or the Park or both, RX
Technology Inc. shall, within five (5) days of notice therefor; obtain a bond
of, or deposit collateral with, a responsible corporate surety or depository to
protect against any such lien in the amount of any such bill estimated costs and
expenses, including without limitation, attorney's fees and interest. If RX
Technology Inc. fails to post such bond or collateral within the aforementioned
time period, The Great Escape may, without prejudice to any other right or
remedy of The Great Escape herein have the option to: (a) pay any such claim,
bill or charge on RX Technology Inc.' behalf, and RX Technology Inc. shall
reimburse The Great Escape on demand for the amount of any such payment or (b)
have the right to set off the amount of said claim, bill or charge from the
portion of RX Technology Inc.' Net Revenue due hereunder. Should any claim or
lien be filed or recorded affecting the Facility or the Park or both, or should
any action affecting the title thereto be commenced, RX Technology Inc. shall
give The Great Escape written notice thereof promptly after the same becomes
known to RX Technology Inc., and RX Technology Inc. shall thereafter remedy the
same with respect to the Facility or the Park or both:
(vii) RX Technology Inc.' Trademarks and/or any advertising,
promotion or publicity materials supplied The Great Escape by RX Technology Inc.
hereunder will not violate, infringe upon or give rise to any adverse claim with
respect to any common law or other right whatsoever including, without
limitation, any copyright, trademark, service mark, right of privacy or
publicity or contract right of any party or violate any other law; and
(viii) Except as otherwise expressly permitted herein. RX
Technology Inc. shall not have the right to use or permit the use of any of The
Great Escape Trademarks, including any depiction of the Park or Affiliates'
Trademarks without The Great Escape prior written consent identifying the use
consented to, which consent may be granted or withheld in the absolute
discretion of The Great Escape. This Section shall survive the termination of
the Agreement.
(ix) Notwithstanding any other provision of this Agreement,
"The Great Escape", within its discretion, reserves the right to designate any
other company or person as the Park sponsor ("Designated Park Sponsor") and
permit the sponsor signage, displays, or other identification of its products or
name on the exterior within the interior of the RX Technology Inc. site as long
as that the interior usage does not interfere with the actual operation of the
RX Technology Inc. operation, RX Technology Inc. shall not be entitled to any
compensation from "The Great Escape" or any "Designated Park Sponsor" for such
usage nor shall RX Technology Inc. be relieved of any of the terms and
conditions of this Agreement. "The Great Escape" agrees that no such signage of
displays shall be affixed to any of RX Technology Inc. product.
10. SUBCONTRACTORS.
The Great Escape acknowledges that RX Technology Inc. has the right
to utilize subcontractors (collectively, the "Subcontractors") to fulfill the
obligations set forth hereunder, subject to The Great Escape prior approval with
respect thereto and the work to be performed thereby. RX Technology Inc. agrees
that (i) the terms of the agreement between RX Technology Inc. and any
Subcontractor will comply with all the terms of this Agreement, including,
without limitation, the provisions concerning criminal background checks of
persons working at the Park for
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or on behalf of RX Technology Inc. and the provisions concerning insurance, (ii)
there will be no disruption (including strike) in the operation of the
Concession whatsoever (even in the event of replacement of the Subcontractors),
and (iii) RX Technology Inc. shall not cause or permit any liens, claims or
encumbrances to be placed on or with respect to the Equipment, Facility, Park or
any other property of The Great Escape or RX Technology Inc. which is the
subject of this Agreement.
11. ASSIGNMENT.
The obligations of RX Technology Inc. herein are personal in nature
and this Agreement and the obligations of RX Technology Inc. hereunder shall not
be assigned or otherwise transferred by RX Technology Inc.. in whole or in part,
to any third party without the prior written consent of The Great Escape. The
Great Escape may assign this Agreement to any affiliate of The Great Escape. For
purposes of this Agreement, the term "assigned" or "assignment" shall include,
without limitation, a consolidation or merger of RX Technology Inc. with or into
another party, a reorganization or a sale of all or substantially all of the
assets of RX Technology Inc. to another party, and/or transfer of a controlling
interest in RX Technology Inc.' business in or to another party.
12. INDEMNITY.
RX Technology Inc. covenants that it will protect, defend, hold
harmless and indemnify The Great Escape, its directors, officers, employees,
agents, subsidiaries, affiliates, partners and parent companies from and against
any and all expenses, claims, actions, liabilities, attorney's fees and costs,
damages and losses of any kind or nature whatsoever (including, without
limitation of the foregoing, death of or injury to persons and damage to
property), actually or allegedly resulting from or connected with the operation
of the Facility and/or the Concession (including, without limitation of the
foregoing, goods sold, work done, services rendered or products utilized
therein, advertising and promotion therefor, lack of repair in or about the area
occupied or arising out of any actual or alleged infringement of any patent or
claim of patent, copyright, trademark, service mark, or trade name) or from the
omission or commission of any act, lawful or unlawful, or breach of this
Agreement by RX Technology Inc. or its agents or employees, whether or not such
act is within the scope of the employment of such agents or employees and not
due to the negligence or willful misconduct of The Great Escape or its employees
and agents. This Section shall survive the termination of the Agreement.
13. INSURANCE.
A. To insure RX Technology Inc.' performance of the obligations and
warranties as set forth herein, but not by way of limitation, RX Technology Inc.
agrees, at its expense, to procure and maintain Comprehensive General Liability
against claims for bodily injury, personal injury or death and property damage,
Contractual Liability, Products Liability, Automobile Liability against claims
for bodily injury, personal injury or death and property damage, Risk Builder's
Risk Insurance, including coverage against collapse, written on a completed
value basis and Worker's Compensation Insurance, including an employer liability
endorsement (collectively, the "Insurance") each covering claims occurring upon,
in or about the Park, and on, in or about the adjoining streets, sidewalks and
passageways and identifying this Agreement, the Park and The Great Escape Theme
Parks Inc. as being named as additional insured on the Insurance policies
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described herein, including any renewals of such Insurance. The Insurance shall
apply separately to each insured against whom a claim is made or suit is
brought. The Insurance shall remain in full force and effect for the Term of
this Agreement and one (1) year thereafter, and all such Insurance shall include
a waiver of subrogation against The Great Escape. This Section shall survive the
termination of the Agreement.
B. The Insurance shall be written by a company rated "A" or better
by Best Insurance Reports, or by such other company consented to in writing by
The Great Escape. The policy of Insurance will provide, inter alia, for thirty
(30) days advance notice to The Great Escape and RX Technology Inc. of any
proposed policy modification or cancellation. Upon any cancellation and/or
modification of any Insurance policy required hereby, and prior to the effective
date thereof. RX Technology Inc. shall deliver replacement insurance to The
Great Escape. RX Technology Inc. shall forward the Certificate of Insurance form
attached hereto and incorporated herein as Exhibit D to its insurer for
execution and transmit such executed Certificate to The Great Escape promptly
after execution of this Agreement, and RX Technology Inc. shall also supply The
Great Escape with its official Certificate of Insurance promptly after execution
of this Agreement for its records.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out of
a single occurrence and $3,000,000 for all claims in the aggregate.
D. All Insurance policies required to be maintained shall be primary
and shall not require contribution from any coverage maintained by The Great
Escape, and shall not contain, without The Great Escape prior written consent,
any special or non-customary exclusions.
E. RX Technology Inc. shall further, upon request, furnish The Great
Escape with a certificate from RX Technology Inc.' insurance carrier certifying
that RX Technology Inc. has obtained Worker's Compensation insurance upon its
employees, or an opinion of counsel satisfactory to The Great Escape that such
coverage is not required.
F. RX Technology Inc. understands that The Great Escape rights and
RX Technology Inc.' obligations hereunder shall not be limited or affected by
the provisions of this Section 13.
14. BREACH.
In the event of breach of any provision of this Agreement by RX
Technology Inc. or in the event RX Technology Inc. should become insolvent, file
a voluntary petition in bankruptcy, have a receiver, liquidator or trustee in
bankruptcy appointed over its affairs, have a significant material adverse
change in its financial condition, and notwithstanding The Great Escape right to
receive liquidation damages hereunder, in lieu thereof, The Great Escape may, at
its option, then or at any time thereafter while said breach continues, upon
fifteen (15) days prior written notice to RX Technology Inc., terminate this
Agreement and the license and privileges granted hereby and b relieved of all
further obligation hereunder arising after the date of termination. In the event
of
14
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termination hereunder, RX Technology Inc. shall then quit and surrender the
premises as set forth in this Agreement and the license and privileges granted
hereby shall then terminate; provided, however, that RX Technology Inc. shall
remain liable for all obligations under this Agreement, and The Great Escape
may, in addition to any remedy herein provided, recover from RX Technology Inc.
any damages to which it may be entitled in law or equity. This Section shall
survive the termination of this Agreement.
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15. NOTICES
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To The Great Escape: The Great Escape andSplashwater Kingdom
P.O. Box 511
Lake George, NY 12845
Attn: David Edwards, Director of Retail
To RX Technology Inc.: RX Technology Inc.
P.O. Box 9112
Mandeville, LA 70470
Attn: D. Rex Gay
Fax: 504-727-9815
or to such other addresses as the parties may direct by written notice given as
herein above provided. Notice shall be deemed given when received as evidenced
by the return receipt or the date such notice is first refused, if that be the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
16. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, RX
Technology Inc. may, subject to any indebtedness of RX Technology Inc. to the
Great Escape, promptly remove RX Technology Inc.' Equipment and Facility from
the Park, except that The Great Escape Trademarks or The Great Escape
Affiliates' Trademarks shall be removed from the Equipment and Facility and
remain at the Park, and RX Technology Inc. shall quit and surrender the Facility
in the Park in good condition, reasonable wear and tear excepted. Unless the
parties otherwise agree, if RX Technology Inc. fails to remove the Facility from
the Park within five (5) days after termination of this Agreement, then RX
Technology Inc. shall be deemed to have abandoned such property and title to the
same shall at that time vest in The Great Escape. Any costs and expenses
incurred by The Great Escape in removing such abandoned property (including the
reasonable value of the services rendered by Park employees in connection
therewith) shall be paid to The Great Escape by RX Technology Inc. promptly
following demand therefor. This Section shall survive the termination of this
Agreement.
17. GOVERNING LAW.
A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State of
New York (the "Specified State") and that the laws of the Specified State shall
govern the construction, interpretation and
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enforceability of this Agreement. Should any dispute arise in connection with
the construction, interpretation, performance or enforcement of the provisions
of this Agreement, Each of the parties hereto agree that any such action shall
be brought only in the courts located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the relationship of the parties hereto, (ii) agree that any
such action, suit or proceeding shall be brought in any state or federal court
of competent jurisdiction sitting in the federal court district in the Specified
State, (iii) submits to the jurisdiction of such courts and (iv) to the fullest
extent permitted by law, agree that it will not bring any action, suit or
proceeding in any forum other than as provided herein (but nothing herein shall
affect the right of the Six Flags to bring any action, suit or proceeding in any
other forum to the extent necessary to enforce its rights under this Agreement).
18. RELATIONSHIP OF THE PARTIES.
RX Technology Inc. is an independent contractor. Nothing contained
in or done pursuant to this Agreement shall be construed as creating a
partnership, agency, joint employer, joint venture or landlord-tenant
relationship. Except as otherwise expressly provided in this Agreement, no party
shall become bound, with respect to third parties, by any representation, act or
omission of the other.
19. FORCE MAJEURE.
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God, In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
20. PUBLICITY.
A. The Great Escape shall, at its discretion, develop, direct and
produce any and all advertising and promotion in connection with the Concession
in the Park for the purposes of advertising, promoting, publicizing and
merchandising the Concession in the Park. RX Technology Inc. agrees to
cooperate, as necessary, when requested to provide any advertising or promotion
with respect to the Concession.
B. The Great Escape shall have the right to use RX Technology Inc.'
Trademarks and the names of any person or entity rendering services on or
associated with the Concession, as well as any such person or entity's
biography, photographic or non-photographic likeness and recorded voice.
C. RX Technology Inc. shall not have the right to have or cause to
have sponsors with respect to the Concession without the prior written approval
of The Great Escape.
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D. RX Technology Inc. agrees that The Great Escape may obtain
sponsors for the Concession which may include affixing signage in or around the
Concession, and any proceeds The Great Escape derives in connection therewith
shall be solely that of The Great Escape.
21. PROPRIETARY INFORMATION.
RX Technology Inc. agrees that this Agreement and all information
regarding the business operations, policies and practices of The Great Escape
("Proprietary Information") acquired or learned in connection with the
activities conducted under this Agreement shall be deemed confidential and shall
be kept in strict confidence under appropriate safeguards. The term Proprietary
Information, as used herein, does not include any information that is or becomes
internally available to the public other than as a result of disclosure in
violation of this Agreement. This Section shall survive the termination of the
Agreement.
22. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
23. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules hereto)
constitutes the entire agreement between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
agreements and undertakings of the parties pertaining to the subject matter
hereof. This Agreement may not be modified except by written instrument duly
executed by the parties hereto.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto on the day and year first hereinabove written.
The Great Escape Theme Park, LLC.,
(a division of Premier Parks Inc.)
By: /s/ John S. Collins
-------------------------------
John S. Collins
Vice President and General Manager
RX Technology Inc.:
By: /s/ D. Rex Gay
-------------------------------
D. Rex Gay
President
S-1
<PAGE>
Exhibit A
Location(s)
Locations shall be determined by The Great Escape in its sole discretion
and may be changed from time to time in the reasonable discretion of The Great
Escape.
Alternative:
The locations are set forth below, subject to relocation in the reasonable
discretion of The Great Escape.
The Comet Ride Photos
The Alpine Bobsled Ride Photos
Front Gate Photos
Ex. A - 1
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) RX Technology Inc. shall comply with The Great
Escape credit card procedures (the "Credit Card Procedures") (a list of the
Credit Card Procedures in effect as of the date hereof is attached hereto and is
incorporated herein), as The Great Escape may amend them from time to time upon
notice to RX Technology Inc., with respect to acceptance of Credit Cards as
payment for any Goods.
(ii) RX Technology Inc. agrees that it shall not: (A)
discriminate in favor of any Credit Card accepted for payment over another. (B)
require a minimum transaction amount or impose a surcharge as a condition for
honoring Credit Cards, (C) impose a requirement on Credit Card holders to
provide any personal information as a condition for honoring Credit Cards unless
otherwise required by the Credit Card Procedures, (D) make or require a
photocopy of a Credit Card, (E) make a Credit Card sale where only part of the
consideration due is paid by use of such Credit Card, or (F) accept a Credit
Card for any purpose which is prohibited by the Credit Card Procedures.
(iii) RX Technology Inc. shall not make a Credit Card
sale to any person if: (A) the Credit Card being presented has expired according
to the expiration date shown on such Credit Card, (B) the sale has been declined
for authorization, (C) RX Technology Inc. has reasonable grounds to believe the
Credit Card being presented is counterfeit, fraudulent or stolen, or (D) the
signature on the Credit Card does not appear to be the same as the signature on
the sales draft or the spelling of the signature on the sales draft is different
from the spelling of the name on the Credit Card. RX Technology Inc. shall use
reasonable efforts to retrieve any credit card from the customer when instructed
by a service provider in response to an authorization or other inquiry.
(iv) RX Technology Inc. agrees to display symbols of the
Credit Cards, supplied by The Great Escape hereunder, at its Facility in the
Park to effectively inform customers of the Park that the Credit Cards are
honored by RX Technology Inc..
(b) Returns and Adjustments.
(i) All disputes between RX Technology Inc. and any
Credit Card holder respecting any Credit Card transaction hereunder shall be
settled between RX Technology Inc. and such Credit Card holder. RX Technology
Inc. agrees that in the event of a Credit Card dispute, RX Technology Inc. shall
reasonably address the Credit Card holders concern in a good faith manner.
(ii) RX Technology Inc. shall maintain a fair and
consistent policy for exchange and return of Goods and for the adjustment of
amounts due on Credit Card transactions and such policy shall be the same as
available to cash customers. RX Technology Inc.
Ex. B - 1
<PAGE>
shall make no cash refunds or payments to Credit Card holders for returns or
adjustments on Credit Card sales.
(iii) When a refund or payment is due to a Credit Card
holder for return or adjustment, RX Technology Inc. shall prepare, execute and
deliver to The Great Escape or cause to be delivered to The Great Escape a
legible credit adjustment memo on a form provided or approved by The Great
Escape and deliver to the Credit Card holder a copy of the completed form. Each
credit adjustment memo shall be imprinted with or contain the following: (A) The
Great Escape name and merchant account number, (B) city and address where the
credit or adjustment occurred, (C) Credit Card holder's name and Credit Card
number, (D) Credit Card expiration date, (E) the date of the return or
adjustment and the date of the initial transaction, if available, (F) the amount
of the credit, and (G) a brief description of the Goods returned.
(iv) With respect to each credit adjustment memo
presented to The Great Escape and/or transmitted hereunder, RX Technology Inc.
represents and warrants that: (A) the credit adjustment memo represents an
amount lawfully due to a Credit Card holder for the return or adjustment of
Goods previously purchased with the Credit Card, (B) a sales draft relating to
and including the amount of the credit memo was previously presented to The
Great Escape and/or transmitted hereunder, (C) the credit adjustment memo does
not duplicate information concerning the same transaction in any other credit
slip unless Six Flags requests a resubmission, (D) the signature appearing on
the credit adjustment memo is that of an authorized employee of RX Technology
Inc., and (E) RX Technology Inc. has complied fully with the terms of this
Agreement.
(c) Failure to Comply.
In the event RX Technology Inc. fails to comply with the
Credit Card Procedures or the terms of this Exhibit B for a given Credit Card
transaction and said sales draft is returned to The Great Escape, or in the
event Goods are returned by the customer that paid by Credit Card, RX Technology
Inc. agrees that The Great Escape may, in its sole discretion: (i) deduct the
amount of said Credit Card transaction from RX Technology Inc.' share of the
revenue from the Concession due and owing RX Technology Inc., if any, or (ii)
bill RX Technology Inc. in the amount of said Credit Card transaction, and RX
Technology Inc. shall pay The Great Escape the same within five (5) days of
receipt therefor, or (iii) demand payment from RX Technology Inc. in the amount
of said Credit Card transaction and RX Technology Inc. shall pay The Great
Escape immediately upon its receipt of The Great Escape demand. Failure of RX
Technology Inc. to pay The Great Escape as set forth herein for any outstanding
Credit Card transactions shall constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event The Great Escape agreement with respect to
the Credit Cards terminates or The Great Escape, in its sole discretion,
determines that it does not want RX Technology Inc. to accept Credit Cards as
payment for Goods hereunder. RX Technology Inc. agrees to discontinue acceptance
of Credit Cards and remove the Credit Card symbols from the Facility upon
notification by The Great Escape.
Ex. B - 2
<PAGE>
2. CHECK.
(a) Acceptance.
RX Technology Inc. represents and warrants that it shall
comply with The Great Escape current check authorization procedures (the "Check
Authorization Procedures") (a copy of the TeleCheck Authorization Procedures in
effect as of the date hereof has been received by RX Technology Inc. and is
incorporated herein), as The Great Escape may amend from time to time upon
notice to RX Technology Inc., prior to acceptance of a check as payment for
Goods. Notwithstanding the foregoing, RX Technology Inc. agrees that it shall
not contact TeleCheck directly, as set forth in Section 3 of the Check
Authorization Procedures but shall contact the Merchandise Office or a
Merchandise Supervisor to obtain authorization from TeleCheck.
(b) Returns and Adjustments.
(i) All disputes between RX Technology Inc. and any
customer respecting any check transaction hereunder shall be settled between RX
Technology Inc. and such customer. RX Technology Inc. agrees that in the event
of a dispute, RX Technology Inc. shall reasonably address the customer's concern
in a good faith manner.
(ii) RX Technology Inc. shall maintain a fair and
consistent policy for exchange and return of merchandise and for the adjustment
of amounts due on check transactions and such policy shall be the same as
available to cash and credit customers.
(iii) When a refund or payment is due to a customer for
rerun or adjustment, RX Technology Inc. shall prepare, execute and deliver to
The Great Escape or cause to be delivered to The Great Escape a legible
Merchandise Return Slip ("Return Slip").
(iv) With respect to each legible Return Slip presented
to The Great Escape hereunder, RX Technology Inc. represents and warrants that:
(A) the Return Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased with a check, (B) a sales draft
relating to and including the amount of the Return Slip was previously presented
to The Great Escape and/or transmitted hereunder, (C) the Return Slip does not
duplicate information concerning the same transaction in any other Return Slip
unless The Great Escape requests a resubmission, (D) the signature appearing on
the Return Slip is that of RX Technology Inc., and (E) RX Technology Inc. has
complied fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technology Inc. fails to comply with the
Check Authorization Procedures for a given check and said check is returned to
The Great Escape, or in the
Ex. B - 3
<PAGE>
event Goods are returned by the customer that paid by check, RX Technology Inc.
agrees that The Great Escape may, in its sole discretion: (A) deduct the amount
of said check from RX Technology Inc.' share of the revenue from the Concession
due and owing RX Technology Inc., if any, or (B) bill RX Technology Inc. in the
amount of said check, and RX Technology Inc. shall pay The Great Escape the same
within five (5) days of receipt therefor, or (C) demand payment from RX
Technology Inc. in the amount of said check and RX Technology Inc. shall pay The
Great Escape immediately upon its receipt of The Great Escape demand. Failure of
RX Technology Inc. to pay The Great Escape as set forth herein for any
outstanding checks shall constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event The Great Escape agreement with TeleCheck
terminates and The Great Escape does not wish to continue acceptance of checks
in the Park or The Great Escape, in its sole discretion, determines that it does
not want RX Technology Inc. to accept checks as payment for Goods hereunder, RX
Technology Inc. agrees to discontinue acceptance of checks upon notification by
The Great Escape.
3. CASH.
(a) Acceptance.
RX Technology Inc. shall comply with The Great Escape
cash handling procedures ("SFGAM Cashier Procedures") a copy of which is
attached hereto.
RX Technology Inc. represents and warrants that it shall
cause all cash received by or on RX Technology Inc.' behalf for sale of Goods
hereunder to be rung in the cash register or other The Great Escape approved
cash collection equipment and deposited in such cash register or other equipment
at the time of sale.
(b) Returns and Adjustments.
(i) All disputes between RX Technology Inc. and any
customer respecting any cash transaction hereunder shall be settled between RX
Technology Inc. and such customer, RX Technology Inc. agrees that in the event
of a dispute, RX Technology Inc. shall reasonably address the customer's concern
in a good faith manner.
(ii) RX Technology Inc. shall maintain a fair and
consistent policy for exchange and return of merchandise and for the adjustment
of amounts due on cash transactions and such policy shall be the same as
available to credit customers.
(iii) When a refund or payment is due to a customer for
return or adjustment, RX Technology Inc. shall prepare, execute and deliver to
The Great Escape or cause to be delivered to The Great Escape a legible Return
Slip.
(iv) With respect to each legible Return Slip presented
to The Great Escape hereunder, RX Technology Inc. represents and warrants that
(A) the Return Slip
Ex. B - 4
<PAGE>
represents an amount lawfully due customer for the return or adjustment of Goods
previously purchased in cash, (B) a sales draft relating to and including the
amount of the Return Slip was previously presented to The Great Escape and/or
transmitted hereunder, (C) the Return Slip does not duplicate information
concerning the same transaction in any other Return Slip unless The Great Escape
requests a resubmission, (D) the signature appearing on the Return Slip is that
of RX Technology Inc., and (E) RX Technology Inc. has complied fully with the
terms of this Agreement.
(v) RX Technology Inc. agrees that in the event Goods
hereunder are returned on a day that said Goods were not purchased, The Great
Escape may, in its sole discretion: (A) deduct the amount of said return from RX
Technology Inc.' share of the revenue from the Concession due and owing RX
Technology Inc.. if any; (B) bill RX Technology Inc. in the amount of said
return and RX Technology, Inc. shall pay The Great Escape the same within five
(5) days of receipt therefor or (C) demand payment from RX Technology Inc. in
said amount and RX Technology Inc. shall pay The Great Escape immediately upon
receipt of The Great Escape demand. Failure of RX Technology Inc. to pay The
Great Escape as set forth herein for any amount outstanding shall constitute a
breach of the Agreement.
Ex. B - 5
<PAGE>
Credit Card Procedures
RX Technology Inc. represents and warrants that it shall follow the
following Credit Card Procedures, as may be amended from time to time by The
Great Escape upon notice to RX Technology Inc.:
1. Each Credit Card sale shall be evidenced by a legible sales draft
(the "Draft") on a form approved by The Great Escape, indicating the full amount
due for Goods sold hereunder.
2. Each Draft shall be imprinted by RX Technology Inc., or show
evidence of the electronic equivalent obtained through use of a terminal which
reads the magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) The Great
Escape name and merchant account number, (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including
the account number, name and expiration date of the Credit Card, (iv) the date
the transaction takes place and the price of the Goods, (v) total amount of the
transaction, including all applicable taxes, (vi) description of Goods, and
(vii) signature of the Credit Card holder.
4. RX Technology Inc. shall compare the signature on the Draft with
the signature on the Credit Card to ascertain that they are the same, and if the
Credit Card has a photograph of the Credit Card holder, verify that the Credit
Card holder and the person presenting the Credit Card appear to be the same
person. If RX Technology Inc. believes there is a discrepancy in the signature
or if the photographic identification is uncertain, RX Technology Inc. shall
contact the service provider for instructions.
5. If the signature panel on the Credit Card is blank, RX Technology
Inc. shall do the following: (i) review positive identification to determine
that the user is the Credit Card holder: such identification must consist of a
current official government identification document (such as a passport or
driver's license) that bears the Credit Card holder's signature, (ii) indicate
such positive identification (including any serial number and expiration date)
on the Draft and (iii) require the Credit Card holder to sign the signature
panel of the Credit Card prior to completing the transaction.
6. For each Credit Card sale, RX Technology Inc. shall deliver or
cause to be delivered a copy of the completed sales draft to the customer,
evidencing the full amount due for the Goods.
7. RX Technology Inc. shall not complete a sales transaction without
first obtaining an authorization from the designated service provider for the
total amount of the transaction, RX Technology Inc. shall print legibly on the
Draft the authorization/approval code, evidencing any authorization so obtained.
Ex. B - 6
<PAGE>
Exhibit C
Employees
RX Technology Inc.' Employees shall include the following:
No. of Employees Title
- ---------------- -----
1 Supervisor/Manager
1 Hosts/Hostesses
Ex. C - 0
<PAGE>
Exhibit D
The Great Escape _________
__________________________
__________________________
CERTIFICATE OF INSURANCE
COMPANIES AFFORDING COVERAGE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
<S> <C>
COMPANY COMPANY
LETTER A LETTER D
- --------------------------------------------------------------------------------------------------
COMPANY COMPANY
LETTER B LETTER E
- --------------------------------------------------------------------------------------------------
COMPANY COMPANY
LETTER C LETTER F
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
COVERAGES
THIS CERTIFICATE IS TO CERTIFY TO SIX FLAGS ______ OR ANY SUBSIDIARIES
HEREAFTER REFERRED TO AS "SIX FLAGS" THAT POLICIES DESCRIBED BELOW HAVE BEEN
ISSUED TO THE INSURED BY THE UNDERSIGNED AND ARE IN FULL FORCE AND EFFECT AT
THIS TIME. IF ANY CHANGES ARE MADE IN THE POLICIES WHICH EFFECT THE INTEREST OF
FRONTIER CITY OR IF ANY OF THE POLICIES ARE CANCELED AT THE REQUEST OF EITHER
PARTY, WRITTEN NOTICE WILL BE GIVEN BY THE INSURANCE COMPANY TO FRONTIER CITY
AT LEAST THIRTY (30) DAYS PRIOR TO THE EFFECTIVE DATE THEREOF
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
CO. TYPE OF INSURANCE POLICY EFFE. EXP. LIMITS IN THOUSANDS
LTR. NUMBER DATE DATE
- --------------------------------------------------------------------------------------------------
WORKERS COMPENSATION STATUTORY
EMPLOYERS LIABILITY (NOTE 1) EA. ACCIDENT $____
CERTIFICATE HOLDER NAMED ALT DISEASE-POLICY LIMIT $____
EMPLOYER DISEASE EA. EMPLOYEE $____
- --------------------------------------------------------------------------------------------------
GENERAL LIABILITY (NOTE 2) GENERAL AGG. $____
COMPREHENSIVE GENERAL LIABILITY PRODUCT-COMP/OPS AGG $____
CLAIMS MADE OCCURRENCE PERSONAL & ADV INJURY $____
CERT. HOLDER NAMED ADDNL. INSURED EACH OCCURRENCE $____
WAIVER OF SUBROGATION WAIVED
AGAINST CERT. HOLDER FIRE DAMAGE
HOLD HARMLESS AGREEMENT WITH CERT. (ANY ONE FIRE) $____
HOLDER INSURED MEDICAL EXPENSE
PROFESSIONAL LIABILITY (ANY ONE PERSON) $____
- --------------------------------------------------------------------------------------------------
AUTO LIABILITY COMBINED SINGLE LIMIT $____
ANY AUTO BODILY INJURY
ALL OWNED (PER PERSON) $____
SCHEDULED AUTOS BODILY INJURY
CERT. HOLDER NAMED ADDNL. INSURED (PER ACCIDENT) $____
WAIVER OF SUBROGATION AGAINST
SIX FLAGS PROPERTY DAMAGES $____
- --------------------------------------------------------------------------------------------------
CARE, CUSTODY AND CONTROL (NOTE 4) EACH OCCURRENCE $____
(IF APPLICABLE) AGGREGATE $____
ALL RISK DEDUCTIBLE $____
LEGAL LIABILITY FORM
- --------------------------------------------------------------------------------------------------
EXCESS LIABILITY (NOTE 5) EACH OCCURRENCE $____
UMBRELLA AGGREGATE $____
OTHER THAN UMBRELLA FORM DEDUCTIBLE $____
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS /LOCATIONS/RESTRICTIONS
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
PRODUCER/AGENT INSURED
- --------------------------------------------------------------------------------------------------
I DO HEREBY CERTIFY THAT THE INSURERS LISTED HEREIN ARE
AUTHORIZED TO TRANSACT BUSINESS IN AND FOR THE STATE OF DATE ISSUED___________
_____ AND CARRY A. M. BEST RATINGS OF _________________
____________________________
AUTHORIZED REPRESENTATIVE REVERSE SIDE MUST BE COMPLETED
(OVER)
- --------------------------------------------------------------------------------------------------
</TABLE>
Ex. D - 1
<PAGE>
<TABLE>
POLICIES LISTED ON REVERSE SIDE INCLUDE COVERAGE FOR: CHECK ONE
<S> <C> <C>
YES NO
NOTE (1) WORKERS COMPENSATION AND EMPLOYERS LIABILITY
(A) VOLUNTARY COMPENSATION ENDORSEMENT? ______ ______
(B) DOES POLICY INCLUDE "WAIVER OF SUBROGATION ENDORSEMENT"
AS REQUIRED BY CONTRACT WITH SIX FLAGS? ______ ______
(C) ALTERNATE EMPLOYER ENDORSEMENT IN FAVOR OF SIX FLAGS? ______ ______
(D) COVERAGE IS AFFORDED IN THE STATES OF:
______________________________________
NOTE (2) COMPREHENSIVE GENERAL LIABILITY
(A) COVERAGE WRFITEN ON A COMPREHENSIVE FORM? ______ ______
(B) PRODUCTS OR COMPLETED OPERATIONS COVERAGES INCLUDED? ______ ______
(C) IS POLLUTION COVERAGE INCLUDED? ______ ______
(D) CONTRACTUAL LIABILITY COVERING HOLD HARMLESS AGREEMENT
IN CONTRACT WITH SIX FLAGS? ______ ______
(E) WAIVER OF SUBROGATION ENDORSEMENT AGAINST SIX FLAGS? ______ ______
(F) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ______ ______
(G) HAVE THERE EVER BEEN ANY PROFESSIONAL LIABILITY ACTIONS
AGAINST THE INSURED? IF YES, PLEASE EXPLAIN.___________ ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
HAVE THERE BEEN ANY SETTLEMENTS? IF YES, PLEASE EXPLAIN. ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
HAVE THERE BEEN ANY JUDGEMENTS? IF YES, PLEASE EXPLAIN. ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
NOTE (3) AUTO LIABILITY
(A) ALL OWNED, HIRED AND NON-OWNED VEHICLES? ______ ______
(B) WAIVER OF SUBROGATION AGAINST FRONTIER CITY? ______ ______
(C) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ______ ______
NOTE (4) CARE, CUSTODY AND CONTROL
(A) IS COVERAGE INCLUDED FOR DAMAGES TO SIX FLAGS
PROPERTY WHILE BEING RAISED, LIFTED OR LOWERED WHILE
USING CRANE, BOOMS OR HOISTS? ______ ______
NOTE (5) UMBRELLA FORM
(A) IS COVERAGE EXCESS OVER PRIMARY COMMERCIAL LIABILITY AND
EMPLOYERS LIABILITY? ______ ______
(B) IS SIX FLAGS NAMED AS ADDITIONAL INSURED? ______ ______
(C) WAIVER OF SUBROGATION AGAINST SIX FLAGS? ______ ______
</TABLE>
Ex. D - 2
<PAGE>
EXHIBIT 10.30
Six Flags Frontier City
Front Gate
<PAGE>
AGREEMENT
THIS AGREEMENT is made as of this 13th day of January 2000, by and between
Frontier City Theme Park, a division of Six Flags Theme Parks Inc., an Oklahoma
corporation, having offices at 11501 NE Expressway, Oklahoma City, OK 73131
("Six Flags"), and RX Technology Inc., a Nevada, corporation, having offices at
2264 7th Street, Mandeville, LA 70471(RX Technology).
WITNESSETH
WHEREAS, Frontier City owns, operates or manages the theme amusement
facility which is open to the general public and known as Frontier City (the
"Park").
WHEREAS, RX Technology Inc. desires to operate a retail concession known
as RX Technology Inc. (the "Concession") to sell digital Photographs of guests
riding "Wildcat and Renegade Rapids" and guests at Frontier City entrance (the
"Goods") in the Park as set forth herein;
WHEREAS, Frontier City desires to grant RX Technology Inc. a license to
operate the Concession in the Park, subject to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, Frontier City and RX Technology Inc. agree as
follows:
1. TERM.
Subject to the provisions of this Agreement concerning termination,
Frontier City grants RX Technology Inc. a license to operate the Concession in
the Park in such locations of the Park as is set forth on Exhibit A hereto
during the period of time (the "Term") commencing April 1, 2000 (the
"Commencement Date") and terminating at the end of the Park's 2002 operating
season (the "Termination Date").
2. OPERATION.
A. Hours of Operation.
RX Technology Inc. agrees to operate the Concession during the
hours and days, including Sundays and holidays, that the Park is open for
business in accordance with schedules prepared by Frontier City which Frontier
City may modify in Frontier City' sole discretion at any time on twenty-four
(24) hours notice to RX Technology Inc. and such additional hours as are
required by Frontier City (the "Operating Hours"). RX Technology Inc.
acknowledges that Frontier City will suffer great harm if RX Technology Inc.
breaches the agreement set forth in this subsection, the amount of which would
be difficult to determine. Therefore, RX Technology Inc. agrees to pay Frontier
City liquidated damages of $500.00 for each Park operating day that RX
Technology Inc. opens the Concession thirty (30) minutes after the agreed
opening time of the Concession and/or closes the Concession thirty (30) minutes
before the agreed upon closing time. Upon notice thereof by Frontier City and
such liquidated damages amount shall be increased an additional $750.00 for each
successive violation of Park Operating Hours upon notice thereof by Frontier
City.
<PAGE>
B. Approval of Goods/Services.
RX Technology Inc. agrees to submit samples of all products,
detailed plans, specifications, drawings and other information with respect to
Goods for sale to customers in the Park in connection with the Concession, for
Frontier City' approval in advance of sale of the same. RX Technology Inc.
agrees to make such changes to the Goods, at its sole cost and expense, as
Frontier City shall reasonably determine. RX Technology Inc. also agrees to
coordinate with the Park in coding each of RX Technology Inc.' Goods and
inputting the same in the cash register for tracking purposes. To the extent
requested by Frontier City, RX Technology Inc. shall comply with Frontier City'
point of sale and other information systems requirements.
C. Price of Goods.
(i) RX Technology Inc. agrees to submit to Frontier City for
its review and approval, a retail price list of all RX Technology Inc.' Goods
for sale to customers of the Park (the "Approved Price List") at least two (2)
weeks prior to Commencement Date or any proposed change in any previously
approved price list. RX Technology Inc. agrees to make changes to the Approved
Price List as Frontier City shall reasonably request. RX Technology Inc. shall
be responsible for all costs and expenses associated with production and
printing of the Price List and any changes thereto, and such costs shall not be
deducted from Net Revenue (as hereinafter defined).
(ii) RX Technology Inc. agrees to make changes to the Approved
Price List (the "Revised Price List") at any time during the Term if the parties
mutually determine that an adjustment is appropriate. RX Technology Inc. shall
be responsible for all costs and expenses associated with production and
printing of the Revised Price List, and such costs shall not be deducted from
Net Revenue (as hereinafter defined).
(iii) RX Technology Inc. agrees that it shall not make its
Goods available to any party free of charge or at a discounted price unless RX
Technology Inc. is engaging in sampling activities approved by Frontier City,
etc. Notwithstanding the foregoing, RX Technology Inc. agrees to offer such
discounts on its Goods as Frontier City shall require and as Frontier City shall
offer in locations owned by Frontier City. RX Technology Inc. shall, at all
times, charge customers, including without limitation, family members, employees
and business associates, the price set forth on the Approved Price List for its
Goods except as otherwise expressly set forth herein.
(iv) RX Technology Inc. agrees that any merchandise/products
that are held for Guests by RX Technology Inc. must be taken to Guest Relations
at Park closing each operating day for the Guest to pick up. Failure to do so
will result in a $100.00 fine for each occurrence that Frontier City must
retrieve product held by RX Technology Inc..
D. Methods of Sale: Payment and Return Policies.
(i) The Goods shall be available for sale to customers of the
Park as follows: by mail, telephone order, or at point of purchase (a "Method of
Sale"). A Method of Sale shall be discontinued at the discretion of Frontier
City.
<PAGE>
(ii) The following forms of payment for RX Technology Inc.'
Goods will be accepted: American Express, MasterCard, Visa, and Discover credit
cards (collectively, the "Credit Cards"), checks, and cash (each, a "Form of
Payment"). Frontier City may, in its sole discretion discontinue and, if
applicable, require RX Technology Inc. to discontinue any Form of Payment for
Goods sold hereunder. Conversely, Frontier City may, in its sole discretion,
require RX Technology Inc. to accept such additional forms of payment as may be
accepted by Frontier City in the future; and in so doing, RX Technology Inc.
agrees to submit to such reasonable rules/restrictions with respect thereto.
Payment for the Goods shall be in accordance with the provisions of Exhibit B -
Payment/Return Agreement, which is attached hereto and incorporated herein.
E. Reports and Records.
(i) Upon commencement of RX Technology Inc.' daily operations,
RX Technology Inc. shall follow cashier procedures Exhibit B-Supplement pick up
a cash till from the Park's cash control facility, and within one (1) hour after
the close of each Park day, RX Technology Inc. shall deliver to Park's cash
control facility the following: (a) remaining cash till, (b) a daily report of
the day's operations on Frontier City' "Register Balance Form", and (c) the
day's daily gross receipts, including without limitation credit card sales
drafts, credit memos and all other materials evidencing sales transactions
during such day (collectively, the "Deposits"). Such Deposits are received
subject to audit by Frontier City as set forth herein and Frontier City may
correct and credit or debit RX Technology Inc. for any inaccuracies or errors in
RX Technology Inc.' computation of Deposits. Frontier City may refuse to accept
or revoke acceptance of any Deposits. including any sales drafts or credit
adjustments, which are illegible or which fail to comply with the terms of this
Agreement, including, but not limited to, any federal or state law.
(ii) RX Technology Inc. shall retain copies of sales drafts
and other materials evidencing sales transactions related to sale of Goods for
the Term of the Agreement from date of transaction. This Section shall survive
the termination of the Agreement.
F. Compliance with Laws.
RX Technology Inc. agrees that at all times during the Term it
shall be in compliance with all laws, rules and regulations with respect to
operation of the Concession in the Park, including, without limitation, all
environmental and employment laws, rules and regulations. RX Technology Inc.
agrees that is shall be responsible for obtaining, at its sole cost and expense,
all licensing and/or permits required in connection with operation of the
Concession in the Park.
G. Employees.
(i) RX Technology Inc. acknowledges that it has no authority
to employ persons on behalf of Frontier City, and no employees or agents of RX
Technology Inc. shall be deemed to be agents or employees of Frontier City.
3
<PAGE>
(ii) Without Frontier City' prior written consent, RX
Technology Inc. shall not, until after the second anniversary of the end of the
Term, solicit for the purpose of hiring or employ, directly or indirectly, any
employee employed by, or independent contractor engaging in business with,
Frontier City, in each case, during the Term. This subsection of the Agreement
shall survive until the second anniversary of the end of the Term.
(iii) RX Technology Inc. represents and warrants that it
shall, at its sole cost and expense, recruit, train, supervise and furnish the
services of at least {number} (#) persons to operate the, and perform services
in connection with the Concession as set forth in Exhibit C attached hereto and
incorporated herein ("RX Technology Inc.' Employees") during Operating Hours. RX
Technology Inc. acknowledges that Frontier City will suffer great harm if RX
Technology Inc. breaches the agreement set forth in this subclause, the amount
of which would be difficult to determine. Therefore, RX Technology Inc. agrees
to pay Frontier City liquidated damages of $250.00 for each Park operating day
that RX Technology Inc. fails to furnish the services of {number} (#) trained
persons to operate the Concession.
(iv) RX Technology Inc. shall be fully responsible for all RX
Technology Inc.' Employees, including without limitation, responsibility for all
salaries and other compensation, withholding taxes, worker's compensation
insurance, union dues, if applicable, and other required payments in connection
with such employees and shall be in compliance with all laws, rules and
regulations with respect thereto.
(v) Each prospective employee of RX Technology Inc. shall
complete an employment application, the form of which must be approved by
Frontier City, prior to beginning work in the Park.
(vi) RX Technology Inc. agrees to use best efforts to cause
its employees to attend Park training/orientation programs as may be required by
Frontier City and comply with Park rules and regulations, including without
limitation submission to drug testing, as may be required. Pending availability
of desired Park Orientation date and time, no RX Technology Inc. employees will
be scheduled for Park orientation with out five days written notice from RX
Technology Inc..
(vii) RX Technology Inc. agrees to verify, at its sole cost
and expense, the references of RX Technology Inc.' Employees, including without
limitation, prior positions of employment, reasons for leaving prior positions,
age, education, criminal records, immigration status, and right to work in the
United States and use due diligence to determine if any of RX Technology Inc.'
Employees have provided false information or omitted significant information
with respect to their backgrounds and/or prior employment.
(viii) RX Technology Inc. represents and warrants that it
shall not, to RX Technology Inc.' knowledge, employ any person to work in the
Park who has a criminal history without Frontier City' knowledge and approval
with respect to said employment. RX Technology
4
<PAGE>
Inc.' knowledge, for the purpose described in the immediately preceding
sentence, is the knowledge that RX Technology Inc. would have known had RX
Technology Inc. performed a reference check of the type performed by Frontier
City. RX Technology Inc. acknowledges that great harm can be suffered by
Frontier City if a RX Technology Inc. employee is discovered to have a criminal
record that could have been discovered with a criminal history background check
of the type performed by Frontier City with respect to all prospective employees
of Frontier City. The parties agree that it will be difficult to determine the
damages suffered by Frontier City in the event of RX Technology Inc.' failure to
undertake such background checks. Accordingly, the parties agree that in the
event RX Technology Inc. employs an individual for work in the Park for whom RX
Technology Inc. has not, prior to hiring such person, undertaken a criminal
history background check of the type performed by Frontier City, then RX
Technology Inc. shall pay Frontier City liquidated damages of $1,000.00 with
respect to each such employee of RX Technology Inc. regardless of whether the
background check would have revealed any evidence of criminal history.
(ix) At the request of Frontier City, RX Technology Inc. shall
make available to Frontier City all information obtained with respect to its
employees. includin~, without limitation, criminal history background checks.
(x) RX Technology Inc. agrees to terminate employment at the
Park for any RX Technology Inc. Employee working in the Park who: (a) is
subsequently discovered to have a criminal history and, after being advised of
the same, Frontier City does not approve said employment, (b) fails to comply
with Park rules or (c) made material misstatements or omissions on their
employment application. RX Technology Inc. agrees to indemnify Frontier City
from and against any claims by RX Technology Inc.' Employees arising from or
related to such dismissals.
(xi) Frontier City agrees that RX Technology Inc. may offer RX
Technology Inc.' Employees discounts on Park admission and food/merchandise at
the Park that Frontier City offers its employees in accordance with Park policy.
(xii) RX Technology Inc. has the option to provide costumes
for RX Technology Inc.'s employees. Frontier City will approve the costumes
provided by RX Technology Inc.. RX Technology Inc. is to submit costume to
Frontier City for approval no later then four weeks prior to Park Opening
(`Commencement Date"). RX Technology Inc. also has the option to purchase park
approved costumes from Frontier City for {Lessee names} `s employees. Park shoes
worn by RX Technology Inc. are to be within the Frontier City guidelines. All
costume charges will be deducted from RX Technology Inc. weekly Net revenue. It
will be the responsibility of RX Technology Inc. to collect costume charges from
RX Technology Inc. employees.
3. FACILITY.
A. Rights/Responsibilities.
(i) In connection with RX Technology Inc.' operation and
management of the Concession, Frontier City agrees that RX Technology Inc. shall
be entitled use of and/or access to: (a) the facility at which the Concession is
operated (the "Facility"), (b) adjacent portions of the Facility, as may be
necessary for the operation and maintenance of the Concession, and (c)
5
<PAGE>
common ways and areas within the Park for incinerator or trash purposes, loading
and unloading supplies and installation, repair and maintenance of Equipment
and/or other elements related to the Concession.
(ii) Frontier City will be responsible for plumbing, and
electrical expenses related to the operation of the Concession in the Facility.
RX Technology Inc. will be responsible for all telephone call charges and photo
copy charges. Frontier City also agrees to provide the following: entry to the
Park for RX Technology Inc.' Employees in the performance of their duties, and
access to the Park employee parking areas on a first-come, first-serve basis to
be used in the performance of their duties.
(iii) RX Technology Inc. will be responsible for cleaning the
Facility and surrounding area and removing trash from said areas, the regular
maintenance of the Facility, including the replacement of light bulbs, tubes and
ballasts related to the operation of the Concession in the Facility.
B. Construction.
(i) Prior to the construction of the Facility in the Park at
which the Concession is operated, RX Technology Inc. will submit its plans to
the Park for approval. These plans will include exterior and interior finishes
as well as RX Technology Inc.' proposed signage. RX Technology Inc. will design
the exterior and interior of the Facility and the signage so that they will be
consistent with the theme of the area of the Park in which the Facility is
located and Frontier City' design requirements policy (the "Design Policy") (a
copy of the Design Policy in effect as of the date hereof is attached hereto and
incorporated herein), as Frontier City may amend from time to time upon notice
to RX Technology Inc..
(ii) RX Technology Inc. agrees to obtain all permits,
consents, approvals and clearances with respect to any construction contemplated
hereunder and comply with all laws, rules and regulations with respect thereto,
including Frontier City Maintenance Department rules, and shall secure Frontier
City' prior approval with respect to the following: (a) contractors,
subcontractors, designers, architects and materialmen who will perform work or
services or supply materials in connection with the construction of the
Facility, (b) dates of commencement and completion with respect to each phase of
the construction of the Facility and (c) agreements with all contractors,
subcontractors, designers, architects and materialmen. RX Technology Inc. shall
only enter into construction agreements hereunder which permit assignment to
Frontier City and its affiliates. All construction hereunder shall be made in a
good and workmanlike manner.
(iii) Frontier City shall have the right, but not the
obligation, to test and inspect the construction of the Facility. RX Technology
Inc. agrees, at its sole cost and expense, to remedy any problems with the
Facility, upon Frontier City' request, including without limiting the foregoing,
problems associated with defective design, engineering, workmanship, failure of
factory construction, materials or any component parts.
(iv) RX Technology Inc. shall not place, maintain, or permit
to be placed or maintained on any exterior portion of the Facility or on the
interior side of or immediately adjacent to any glass door, wall or window of
said Facility, or otherwise display outside said Facility in the confines of the
Park, any signs, advertisements, lettering, trade, brand or service name, mark
6
<PAGE>
or logo, neon lights, flood lights, colored lights, flashing lights or other
exterior lighting without prior written consent of Frontier City, which consent
may be granted or withheld in the absolute discretion of Frontier City. RX
Technology Inc. shall not use in, on or about said Facility, or elsewhere in the
Park, any sound producing or reproduction equipment audible inside or outside
said Facility, without the prior written consent of Frontier City.
C. Alterations.
Upon approval by RX Technology Inc. in writing, Frontier City
shall have the right, but not the obligation, to make alterations,
modifications, additions, improvements or updates, at RX Technology Inc.' sole
cost and expense, to the Facility and/or the Equipment, as hereinafter defined
(collectively, the "Alterations"); provided, however, that RX Technology Inc.
shall have been deemed to approve Alterations if: (i) the Alterations are
reasonably required by Frontier City: (a) for safety, quality or financial
control reasons, or (b) if new technology and improvements are made to the same
type of Facility and/or Equipment in the industry and/or (ii) required by any
applicable laws, rules or regulations. All such Alterations shall be made in a
good and workmanlike manner. RX Technology Inc. agrees to pay Frontier City for
the reasonable cost of such Alterations within thirty (30) days of receipt of an
invoice therefor.
(i) RX Technology Inc. agrees to make alterations,
modifications, additions, improvements or updates, at its sole cost and expense
(including any necessary design and engineering expenses), to the Facility
and/or the Equipment, as shall be mutually agreed to by the parties and in
accordance with the Design Policy.
(ii) RX Technology Inc. covenants that it will not make, or
suffer or permit to be made, any Alterations in, on, or to the Facility and/or
the Equipment without first: (a) notifying Frontier City in writing sufficiently
in advance of the commencement thereof to enable Frontier City to post or record
or both, appropriate and effective notices of non-responsibility, (b) obtaining
the written consent of Frontier City thereto, which consent Frontier City shall
not unreasonably withhold provided that the proposed Alterations are of high
quality and in harmony with the overall design and appearance of the Park, and
necessary to operate the Concession in a safe and efficient manner, (c)
obtaining the written approval of Frontier City as to all contractors,
subcontractors, and materialmen who will perform work or services or supply
materials in connection therewith and (d) obtaining the written consent of
Frontier City with respect to the proposed commencement and completion date of
such Alterations.
D. Maintenance and Repair.
RX Technology Inc. agrees to properly maintain and keep in
good repair and condition the Facility and/or the Equipment, at its sole cost
and expense. The Facility and/or the Equipment shall be maintained in keeping
with the themeing and overall aesthetics of the Park. In the event any portion
of the Facility and/or the Equipment is inoperative or a component thereof has
failed or is defective, RX Technology Inc. shall repair the same no later than
seventy-two (72) hours of RX Technology Inc.' knowledge of the same or in the
case of Equipment, RX Technology Inc. shall secure comparable equipment (the
"Replacement Equipment") and deliver the same to the
7
<PAGE>
Park until such time as the Equipment is repaired. Failure of RX Technology Inc.
to comply with the provisions of this subsection shall constitute default
hereunder.
E. Relocation.
RX Technology Inc. agrees that Frontier City shall have the
right to relocate RX Technology Inc. to another Facility in the Park, for any
reason, provided that Frontier City agrees to exercise reasonable care to
minimize interference in or to RX Technology Inc.' operations.
F. Ownership.
(i) It is understood and agreed that the Facility and the
improvements thereto, whether made by RX Technology Inc. or Frontier City
hereunder, shall remain the property of Frontier City including the trademarks
and other indicia of Frontier City, including an Alternate Name (hereinafter
defined) ("Frontier City' Trademarks") and the trademarks of Frontier City'
affiliates, including Warner Bros. and DC Comics ("Affiliates' Trademarks")
shall be the property of Frontier City and its affiliates and in the event of
expiration or termination hereunder Frontier City' Trademarks and its
Affiliates' Trademarks shall be removed therefrom and returned to Frontier City
at RX Technology Inc.' sole cost and expense.
(ii) It is further understood and agreed that the improvements
thereto, whether made by RX Technology Inc. or Frontier City hereunder, shall
remain the property of Frontier City.
G. Interference with Parks Operations.
RX Technology Inc. understands that this Agreement may not be
asserted to affect or impede Frontier City' normal Park operations, including
without limitation, upgrading Park equipment, building and/or facilities,
buying/selling Park games or attractions, entering into agreements with other
parties or locating or changing other facilities, equipment, walkways or signage
into or surrounding the Facility, each without the consent of RX Technology
Inc.. RX Technology Inc. shall have no exclusive rights with respect to the
operation of concessions in the Park similar in nature or type to the
Concession.
4. EQUIPMENT.
A. Description.
(i) RX Technology Inc. agrees to provide, at its sole cost and
expense, all equipment, supplies, furnishings, displays, and other signage, cash
registers, and any other materials necessary to operate the Concession (the
"Equipment"). Notwithstanding the foregoing, RX Technology Inc. agrees that it
shall use only Frontier City provided credit card processing equipment
(collectively, "Frontier City' Equipment"), as appropriate, for all transactions
and, in consideration therefore, RX Technology Inc. shall pay Frontier City no
later than thirty (30) days of receipt of an invoice therefore.
B. Delivery, Installation and Removal.
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(i) RX Technology Inc. agrees that it shall be responsible for
the shipment, installation and, promptly following the end of the Term, the
removal, of the Equipment, including parts therefor and/or Replacement Equipment
(as hereinafter defined), at its sole cost and expense. RX Technology Inc.
agrees to coordinate with Frontier City with respect to the dates and times of
shipment and installation of the Equipment, Replacement Equipment and/or parts
therefor.
(ii) Frontier City shall have the right, but not the
obligation, to test and inspect the Equipment and the installation and operation
of the Equipment during the Term. RX Technology Inc. agrees, at its sole cost
and expense, to remedy any problems with the Equipment and installation thereof,
upon Frontier City' request, including without limiting the foregoing, problems
associated with defective design, engineering, workmanship, failure of factory
construction, materials or any component parts.
C. Additional Equipment.
RX Technology Inc. agrees to install and/or supply additional
Equipment, as determined by mutual agreement of the parties, at no additional
cost to Frontier City.
5. PAYMENT TO RX Technology Inc..
A. RX Technology Inc. shall collect, record and submit the Deposits
of the Concession to Frontier City and Frontier City shall pay RX Technology
Inc. the following share of Net Revenues (as hereinafter defined) during each
operating season of the Term as follows:
Ride Photo Locations:
Year RX Technology Inc. % of Net Revenue
---- -----------------------------------
2000 62%
2001 62%
2002 62%
Front Gate Photo Location:
Year RX Technology Inc. % of Net Revenue
---- -----------------------------------
2000 65%
2001 65%
2002 65%
B. "Net Revenue" means gross revenue of the Concession during the
applicable period less the sales tax paid or payable in respect thereto or
otherwise @paid. RX Technology Inc. agrees that Frontier City shall have the
right to deduct the following from RX Technology Inc.' share
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of the Net Revenue: (i) cash shortages, (ii) credit card, check processing and
other transaction costs and charges, including charge backs and return check
amounts and fees related thereto, (iii) the cost of goods taken from Frontier
City' warehouse, to the extent permitted by Frontier City, or otherwise and not
paid for, (iv) the cost of leased Park equipment, if any, each during the
applicable period, (v) hereof, and (vi) the cost of any bill or charge which is
the basis or which may be the basis for a lien against the Facility as set forth
in more detail in Section 9 (vi) hereof.
C. RX Technology Inc.' share of the Net Revenue will be calculated
at the end of the week. For payment purposes, a week shall be defined as the
seven (7) day period beginning Monday and ending on and including Sunday.
Payments shall be directed as set forth in this Agreement or as RX Technology
Inc. may otherwise direct in writing and shall be payable seven (7) days from
Frontier City' calculation thereof. Frontier City shall have no further monetary
liability or obligation to RX Technology Inc.. Payments shall be made to RX
Technology Inc. at the address indicated in the first paragraph of this
Agreement or otherwise as requested in writing by RX Technology Inc..
D. Notwithstanding Frontier City' deduction of sales tax from Net
Revenue, RX Technology Inc. represents and warrants that all payments by
Frontier City to RX Technology Inc. of RX Technology Inc.' share of Net Revenue
hereunder are exempt from any United States federal, state and local taxes or
other assessments, including any withholding taxes. RX Technology Inc. shall be
solely responsible for, and shall pay when due, assessments arising from or in
connection with the receipt by RX Technology Inc. of such Net Revenue.
6. AUDIT RIGHTS.
Until all claims and rights of Frontier City shall have been fully
ascertained, fixed and paid RX Technology Inc. shall maintain, in accordance
with generally accepted accounting principles, separate and accurate records of
the gross receipts of the Concession at the Park showing in detail all business
transacted by RX Technology Inc.. Frontier City shall have the right, at all
reasonable times, to examine and inspect such records as well as any other
business records of RX Technology Inc. pertaining to the operation of the
Concession. This Section shall survive the termination of this Agreement.
7. CHANGE IN FINANCIAL CONDITION.
RX Technology Inc. agrees to notify Frontier City promptly of any
significant/material change in its financial condition.
8. TRADEMARKS.
A. RX Technology Inc. hereby grants Frontier City the non-exclusive
royalty-free right and license to use RX Technology Inc.' trademarks, trade
names, service marks, logos and symbols, ("RX Technology Inc.' Trademarks") for
the Term of the Agreement in connection with the Concession in the Park. RX
Technology Inc.' Trademarks are and shall remain RX Technology Inc.' sole and
exclusive property. Frontier City agrees to include a trademark symbol (TM) on
the first
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and most prominent reference to RX Technology Inc.' Trademarks and a protective
trademark legend in materials as shall be required by RX Technology Inc.
hereunder.
B. Frontier City reserves the right to create an alternate name
and/or logo (collectively, the "Alternate Name") for the Concession. Frontier
City shall own all right, title and interest in and to such Alternate Name, and
all goodwill with respect thereto shall inure to the benefit of Frontier City.
RX Technology Inc. agrees that any Alternate Name shall be the exclusive
property of Frontier City.
C. Frontier City' Trademarks are and shall remain the sole and
exclusive property of Frontier City, and Affiliates' Trademarks are and shall
remain the sole and exclusive property of Frontier City' affiliates, and RX
Technology Inc. shall not use nor permit others to use Frontier City'
Trademarks, including the Alternate Name, and Affiliates' Trademarks for any
purpose without the prior written consent of Frontier City nor do anything which
could in any way conflict with Frontier City' or its affiliates' use or
ownership of such trademarks.
9. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS.
RX Technology Inc. represents and warrants that:
(i) RX Technology Inc. is, and will during the term of this
Agreement be, solvent and able to meet its obligations hereunder as and when
they become due;
(ii) RX Technology Inc. shall not use, or suffer or permit any
person or persons to use, the Equipment and/or Facility for any purpose other
than as set forth herein without the prior written consent of Frontier City, or
in any unlawful manner or for any unlawful purpose;
(iii) RX Technology Inc. shall comply with, and use its best
efforts to cause its agents and employees to comply with all rules and
regulations of the Park as may be in effect from time to time. RX Technology
Inc. confirms that it has been provided with a copy of the rules and regulations
of the Park;
(iv) RX Technology Inc. will not offer or provide any Goods in
or from the Concession or elsewhere in the Park, without the prior express
written authorization of Frontier City. Any uncertainty with respect to the
Goods which RX Technology Inc. is authorized to offer or provide shall be
resolved in the manner which most limits and restricts RX Technology Inc.
authority, and any reasonable interpretation of such authority by Frontier City
shall be binding upon RX Technology Inc.;
(v) RX Technology Inc. shall maintain, at its sole cost and
expense during the Term of this Agreement, a valid business license and any
other necessary permits or licenses and shall provide proof of same to Frontier
City;
(vi) RX Technology Inc. shall promptly pay all bills and
charges relating to the Concession in the Park, including any Alterations to the
Equipment and/or the Facility, and shall protect and indemnify Frontier City and
the Park against all such bills and charges and liens relating thereto. In the
event that RX Technology Inc. desires to contest any bill or charge which
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is the basis or which may be the basis for a lien against the Facility
constituting the Concession or the Park or both, RX Technology Inc. shall,
within five (5) days of notice therefor, obtain a bond of, or deposit collateral
with, a responsible corporate surety or depository to protect against any such
lien in the amount of any such bill estimated costs and expenses, including
without limitation, attorney's fees and interest. If RX Technology Inc. fails to
post such bond or collateral within the aforementioned time period, Frontier
City may, without prejudice to any other right or remedy of Frontier City herein
have the option to: (a) pay any such claim, bill or charge on RX Technology
Inc.' behalf, and RX Technology Inc. shall reimburse Frontier City on demand for
the amount of any such payment or (b) have the right to set off the amount of
said claim, bill or charge from the portion of RX Technology Inc.' Net Revenue
due hereunder. Should any claim or lien be filed or recorded affecting the
Facility or the Park or both, or should any action affecting the title thereto
be commenced, RX Technology Inc. shall give Frontier City written notice thereof
promptly after the same becomes known to RX Technology Inc., and RX Technology
Inc. shall thereafter remedy the same with respect to the Facility or the Park
or both;
(vii) RX Technology Inc.' Trademarks and/or any advertising,
promotion or publicity materials supplied Frontier City by RX Technology Inc.
hereunder will not violate, infringe upon or give rise to any adverse claim with
respect to any common law or other right whatsoever, including, without
limitation, any copyright, trademark, service mark, right of privacy or
publicity or contract right of any party or violate any other law; and
(viii) Except as otherwise expressly permitted herein, RX
Technology Inc. shall not have the right to use or permit the use of any of
Frontier City' Trademarks, including any depiction of the Park or Affiliates'
Trademarks without Frontier City' prior written consent identifying the use
consented to, which consent may be granted or withheld in the absolute
discretion of Frontier City. This Section shall survive the termination of the
Agreement.
(ix) Notwithstanding any other provision of this Agreement,
"FRONTIER CITY", within its discretion, reserves the right to designate any
other company or person as the Park sponsor ("Designated Park Sponsor") and
permit the sponsor signage, displays, or other identification of its products or
name on the exterior within the interior of the RX Technology Inc. site as long
as that the interior usage does not interfere with the actual operation of the
RX Technology Inc. operation. RX Technology Inc. shall not be entitled to any
compensation from "FRONTIER CITY" or any "Designated Park Sponsor" for such
usage nor shall RX Technology Inc. be relieved of any of the terms and
conditions of this Agreement. "FRONTIER CITY" agrees that no such signage of
displays shall be affixed to any of RX Technology Inc. product.
10. SUBCONTRACTORS.
Frontier City acknowledges that RX Technology Inc. has the right to
utilize subcontractors (collectively, the "Subcontractors") to fulfill the
obligations set forth hereunder, subject to Frontier City' prior approval with
respect thereto and the work to be performed thereby. RX Technology Inc. agrees
that (i) the terms of the agreement between RX Technology Inc. and any
Subcontractor will comply with all the terms of this Agreement, including,
without limitation, the provisions concerning criminal background checks of
persons working at the Park for or on behalf of RX Technology Inc. and the
provisions concerning insurance, (ii) there will be no disruption
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(including strike) in the operation of the Concession whatsoever (even in the
event of replacement of the Subcontractors), and (iii) RX Technology Inc. shall
not cause or permit any liens, claims or encumbrances to be placed on or with
respect to the Equipment, Facility, Park or any other property of Frontier City
or RX Technology Inc. which is the subject of this Agreement.
11. ASSIGNMENT.
The obligations of RX Technology Inc. herein are personal in nature
and this Agreement and the obligations of RX Technology Inc. hereunder shall not
be assigned or otherwise transferred by RX Technology Inc., in whole or in part,
to any third party without the prior written consent of Frontier City. Frontier
City may assign this Agreement to any affiliate of Frontier City. For purposes
of this Agreement, the term "assigned" or "assignment" shall include, without
limitation, a consolidation or merger of RX Technology Inc. with or into another
party, a reorganization or a sale of all or substantially all of the assets of
RX Technology Inc. to another party, and/or transfer of a controlling interest
in RX Technology Inc.' business in or to another party.
12. INDEMNITY.
RX Technology Inc. covenants that it will protect, defend, hold
harmless and indemnify Frontier City, its directors, officers, employees.
agents, subsidiaries, affiliates, partners and parent companies from and against
any and all expenses, claims, actions, liabilities, attorney's fees and costs,
damages and losses of any kind or nature whatsoever (including. without
limitation of the foregoing, death of or injury to persons and damage to
property), actually or allegedly resulting from or connected with the operation
of the Facility and/or the Concession (including, without limitation of the
foregoing, goods sold, work done, services rendered or products utilized
therein, advertising and promotion therefor, lack of repair in or about the area
occupied or arising out of any actual or alleged infringement of any patent or
claim of patent, copyright, trademark, service mark, or trade name) or from the
omission or commission of any act, lawful or unlawful, or breach of this
Agreement by RX Technology Inc. or its agents or employees, whether or not such
act is within the scope of the employment of such agents or employees and not
due to the negligence or willful misconduct of Frontier City or its employees
and agents. This Section shall survive the termination of the Agreement.
13. INSURANCE.
A. To insure RX Technology Inc.' performance of the obligations and
warranties as set forth herein, but not by way of limitation, RX Technology Inc.
agrees, at its expense, to procure and maintain Comprehensive General Liability
against claims for bodily injury, personal injury or death and property damage,
Contractual Liability, Products Liability, Automobile Liability against claims
for bodily injury, personal injury or death and property damage. Risk Builder's
Risk Insurance, including coverage against collapse, written on a completed
value basis and Worker's Compensation Insurance, including an employer liability
endorsement (collectively, the "Insurance") each covering claims occurring upon,
in or about the Park, and on, in or about the adjoining streets, sidewalks and
passageways and identifying this Agreement, the Park and Frontier City Theme
Parks Inc. as being named as additional insured on the Insurance policies
described herein, including any renewals of such Insurance. The Insurance shall
apply separately to each
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<PAGE>
insured against whom a claim is made or suit is brought. The Insurance shall
remain in full force and effect for the Term of this Agreement and one (1) year
thereafter, and all such Insurance shall include a waiver of subrogation against
Frontier City. This Section shall survive the termination of the Agreement.
B. The Insurance shall be written by a company rated "A" or better
by Best Insurance Reports, or by such other company consented to in writing by
Frontier City. The policy of Insurance will provide, inter alia, for thirty (30)
days advance notice to Frontier City and RX Technology Inc. of any proposed
policy modification or cancellation. Upon any cancellation and/or modification
of any Insurance policy required hereby, and prior to the effective date
thereof, RX Technology Inc. shall deliver replacement insurance to Frontier
City. RX Technology Inc. shall forward the Certificate of Insurance form
attached hereto and incorporated herein as Exhibit D to its insurer for
execution and transmit such executed Certificate to Frontier City promptly after
execution of this Agreement, and RX Technology Inc. shall also supply Frontier
City with its official Certificate of Insurance promptly after execution of this
Agreement for its records.
C. Each of the Insurance liability coverages referenced above shall
have a combined single limit of at least $1,000,000 for any claim arising out of
a single occurrence and $3,000,000 for all claims in the aggregate.
D. All Insurance policies required to be maintained shall be primary
and shall not require contribution from any coverage maintained by Frontier
City, and shall not contain, without Frontier City' prior written consent, any
special or non-customary exclusions.
E. RX Technology Inc. shall further, upon request, furnish Frontier
City with a certificate from RX Technology Inc.' insurance carrier certifying
that RX Technology Inc. has obtained Worker's Compensation insurance upon its
employees, or an opinion of counsel satisfactory to Frontier City that such
coverage is not required.
F. RX Technology Inc. understands that Frontier City' rights and RX
Technology Inc.' obligations hereunder shall not be limited or affected by the
provisions of this Section 13.
14. BREACH.
In the event of breach of any provision of this Agreement by RX
Technology Inc. or in the event RX Technology Inc. should become insolvent, file
a voluntary petition in bankruptcy, have a receiver, liquidator or trustee in
bankruptcy appointed over its affairs, have a significant material adverse
change in its financial condition, and notwithstanding Frontier City' right to
receive liquidation damages hereunder, in lieu thereof, Frontier City may, at
its option, then or at any time thereafter while said breach continues, upon
fifteen (15) days prior written notice to RX Technology Inc., terminate this
Agreement and the license and privileges granted hereby and be relieved of all
further obligation hereunder arising after the date of termination. In the event
of termination hereunder, RX Technology Inc. shall then quit and surrender the
premises as set forth in this Agreement and the license and privileges granted
hereby shall then terminate; provided, however,
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that RX Technology Inc. shall remain liable for all obligations under this
Agreement, and Frontier City may, in addition to any remedy herein provided,
recover from RX Technology Inc. any damages to which it may be entitled in law
or equity. This Section shall survive the termination of this Agreement.
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<PAGE>
15. NOTICES.
All notices required or permitted to be given hereunder shall be in
writing and personally delivered or sent by courier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
To Frontier City: Frontier City
11501 NE Expressway
Oklahoma City, OK 73131
405-478-2140 ext. 203
Attn: Stephen Ball
Fax: 405-478-3104
To RX Technology Inc.: RX Technology Inc.
P.O. Box 9112
Mandeville, LA 70470
Attn:D. Rex Gay
Fax: 504-727-9815
or to such other addresses as the parties may direct by written notice given as
hereinabove provided. Notice shall be deemed given when received as evidenced by
the return receipt or the date such notice is first refused, if that be the
case. Notice also may be sent by facsimile and shall be deemed received on the
date facsimile is confirmed as being sent.
16. SURRENDER OF PREMISES.
At the expiration or prior termination of this Agreement, RX
Technology Inc. may, subject to any indebtedness of RX Technology Inc. to
Frontier City, promptly remove RX Technology Inc.' Equipment and Facility from
the Park, except that Frontier City' Trademarks or Frontier City' Affiliates'
Trademarks shall be removed from the Equipment and Facility and remain at the
Park, and RX Technology Inc. shall quit and surrender the Facility in the Park
in good condition, reasonable wear and tear excepted. Unless the parties
otherwise agree, if RX Technology Inc. fails to remove the Facility from the
Park within five (5) days after termination of this Agreement, then RX
Technology Inc. shall be deemed to have abandoned such property and title to the
same shall at that time vest in Frontier City. Any costs and expenses incurred
by Frontier City in removing such abandoned property (including the reasonable
value of the services rendered by Park employees in connection therewith) shall
be paid to Frontier City by RX Technology Inc. promptly following demand
therefor. This Section shall survive the termination of this Agreement.
17. GOVERNING LAW.
A. Each of the parties hereto agree that this Agreement shall be
deemed to have been made, entered into, executed and delivered in the State
of__________(the "Specified State") and that the laws of the Specified State
shall govern the construction, interpretation and
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enforceability of this Agreement. Should any dispute arise in connection with
the construction, interpretation, performance or enforcement of the provisions
of this Agreement, Each of the parties hereto agree that any such action shall
be brought only in the courts located in the Specified State.
B. Each of the parties hereto, to the full extent permitted by law,
hereby knowingly, intentionally and voluntarily, with and upon advice of
competent counsel, (i) submit to personal jurisdiction in the Specified State
over any suit, action or proceeding by any person arising from or relating to
this Agreement and the relationship of the parties hereto, (ii) agree that any
such action, suit or proceeding shall be brought in any state or federal court
of competent jurisdiction sitting in the federal court district in the Specified
State, (iii) submits to the jurisdiction of such courts and (iv) to the fullest
extent permitted by law, agree that it will not bring any action, suit or
proceeding in any forum other than as provided herein (but nothing herein shall
affect the right of the Frontier City to bring any action, suit or proceeding in
any other forum to the extent necessary to enforce its rights under this
Agreement).
18. RELATIONSHIP OF THE PARTIES.
RX Technology Inc. is an independent contractor. Nothing contained
in or done pursuant to this Agreement shall be construed as creating a
partnership, agency, joint employer, joint venture or landlord-tenant
relationship. Except as otherwise expressly provided in this Agreement, no party
shall become bound, with respect to third parties, by any representation, act or
omission of the other.
19. FORCE MAJEURE.
Neither party shall be liable to the other party for damages for its
failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, strikes, riots
or acts of God. In the event that such an event has occurred, the party affected
shall notify the other immediately. The rights and obligations of either party
under this Agreement shall be suspended only for the duration and extent of the
force majeure and once the force majeure ceases to exist, the rights and
obligations of either party shall continue in full force.
20. PUBLICITY.
A. Frontier City shall, at its discretion, develop, direct and
produce any and all advertising and promotion in connection with the Concession
in the Park for the purposes of advertising, promoting, publicizing and
merchandising the Concession in the Park. RX Technology Inc. agrees to
cooperate, as necessary, when requested to provide any advertising or promotion
with respect to the Concession.
B. Frontier City shall have the right to use RX Technology Inc.'
Trademarks and the names of any person or entity rendering services on or
associated with the Concession, as well as any such person or entity's
biography, photographic or non-photographic likeness and recorded voice.
C. RX Technology Inc. shall not have the right to have or cause to
have sponsors with respect to the Concession without the prior written approval
of Frontier City.
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D. RX Technology Inc. agrees that Frontier City may obtain sponsors
for the Concession which may include affixing signage in or around the
Concession, and any proceeds Frontier City derives in connection therewith shall
be solely that of Frontier City.
21. PROPRIETARY INFORMATION.
RX Technology Inc. agrees that this Agreement and all information
regarding the business operations, policies and practices of Frontier City
("Proprietary Information") acquired or learned in connection with the
activities conducted under this Agreement shall be deemed confidential and
shall be kept in strict confidence under appropriate safeguards. The term
Proprietary Information, as used herein, does not include any information
that is or becomes generally available to the public other than as a result
of disclosure in violation of this Agreement. This Section shall survive the
termination of the Agreement.
22. SEVERABILITY.
If any provision of this Agreement or the application of any such
provision to any party or circumstance is held invalid, the remainder of this
Agreement, and the application of such provision other than to the extent it is
held invalid, will not be invalidated or affected thereby.
23. ENTIRE AGREEMENT.
This Agreement (including any and all exhibits and schedules hereto)
constitutes the entire agreement between the parties with respect to the matters
which are the subject hereof and supersedes all prior and contemporaneous
agreements and undertakings of the parties pertaining to the subject matter
hereof. This Agreement may not be modified except by written instrument duly
executed by the parties hereto.
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IN WITNESS WHEREOF, this ______ Agreement has been duly executed by the
parties hereto on the day and year first herein above written.
FRONTIER CITY ____________________
(a division of Six Flags Theme Parks Inc.)
By: /s/ Lenny Freund
--------------------------------
Lenny Freund
Vice President and General Manager
RX Technology Inc.:
By: /s/ Chad H. Gay
--------------------------------
Chad H. Gay
Vice President
S-1
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Exhibit A
Location(s)
Locations shall be determined by Frontier City in its sole discretion and
may be changed from time to time in the reasonable discretion of Frontier City.
The locations are set forth below, subject to relocation in the reasonable
discretion of Frontier City.
Wildcat Photo -- located inside "Attitudes" gift shop.
Renegade Rapids Photo -- located on the Northeast corner of "Lone Buffalo"
restaurant.
Front Gate Photo -- located in the current "Blacksmith" shop at the bottom of
the entrance bridge, adjacent to the "Livery Stable."
Ex. A - 1
<PAGE>
Exhibit B
PAYMENT/RETURN AGREEMENT
1. CREDIT CARD.
(a) Acceptance.
(i) RX Technology Inc. shall comply with Frontier City' credit
card procedures (the "Credit Card Procedures"), as Frontier City may amend them
from time to time upon notice to RX Technology Inc., with respect to acceptance
of Credit Cards as payment for any Goods.
(ii) RX Technology Inc. agrees that it shall not: (A)
discriminate in favor of any Credit Card accepted for payment over another, (B)
require a minimum transaction amount or impose a surcharge as a condition for
honoring Credit Cards, (C) impose a requirement on Credit Card holders to
provide any personal information as a condition for honoring Credit Cards unless
otherwise required by the Credit Card Procedures, (D) make or require a
photocopy of a Credit Card, (E) make a Credit Card sale where only part of the
consideration due is paid by use of such Credit Card, or (F) accept a Credit
Card for any purpose which is prohibited by the Credit Card Procedures.
(iii) RX Technology Inc. shall not make a Credit Card sale to
any person if: (A) the Credit Card being presented has expired according to the
expiration date shown on such Credit Card, (B) the sale has been declined for
authorization, (C) RX Technology Inc. has reasonable grounds to believe the
Credit Card being presented is counterfeit, fraudulent or stolen, or (D) the
signature on the Credit Card does not appear to be the same as the signature on
the sales draft or the spelling of the signature on the sales draft is different
from the spelling of the name on the Credit Card. RX Technology Inc. shall use
reasonable efforts to retrieve any credit card from the customer when instructed
by a service provider in response to an authorization or other inquiry.
(iv) RX Technology Inc. agrees to display symbols of the
Credit Cards, supplied by Frontier City hereunder, at its Facility in the Park
to effectively inform customers of the Park that the Credit Cards are honored by
RX Technology Inc..
(b) Returns and Adjustments.
(i) All disputes between RX Technology Inc. and any Credit
Card holder respecting any Credit Card transaction hereunder shall be settled
between RX Technology Inc. and such Credit Card holder. RX Technology Inc.
agrees that in the event of a Credit Card dispute, RX Technology Inc. shall
reasonably address the Credit Card holder's concern in a good faith manner.
(ii) RX Technology Inc. shall maintain a fair and consistent
policy for exchange and return of Goods and for the adjustment of amounts due on
Credit Card transactions and such policy shall be the same as available to cash
customers. RX Technology Inc.
Ex. B - 1
<PAGE>
shall make no cash refunds or payments to Credit Card holders for returns or
adjustments on Credit Card sales.
(iii) When a refund or payment is due to a Credit Card holder
for return or adjustment, RX Technology Inc. shall prepare, execute and deliver
to Frontier City or cause to be delivered to Frontier City a legible credit
adjustment memo on a form provided or approved by Frontier City and deliver to
the Credit Card holder a copy of the completed form. Each credit adjustment memo
shall be imprinted with or contain the following: (A) Frontier City' name and
merchant account number, (B) city and address where the credit or adjustment
occurred, (C) Credit Card holder's name and Credit Card number, (D) Credit Card
expiration date, (E) the date of the return or adjustment and the date of the
initial transaction, if available, (F) the amount of the credit, and (G) a brief
description of the Goods returned.
(iv) With respect to each credit adjustment memo presented to
Frontier City and/or transmitted hereunder, RX Technology Inc. represents and
warrants that: (A) the credit adjustment memo represents an amount lawfully due
to a Credit Card holder for the retum or adjustment of Goods previously
purchased with the Credit Card, (B) a sales draft relating to and including the
amount of the credit memo was previously presented to Frontier City and/or
transmitted hereunder, (C) the credit adjustment memo does not duplicate
information concerning the same transaction in any other credit slip unless
Frontier City requests a resubmission, (D) the signature appearing on the credit
adjustment memo is that of an authorized employee of RX Technology Inc., and (E)
RX Technology Inc. has complied fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technology Inc. fails to comply with the
Credit Card Procedures or the terms of this Exhibit B for a given Credit Card
transaction and said sales draft is returned to Frontier City, or in the event
Goods are returned by the customer that paid by Credit Card, RX Technology Inc.
agrees that Frontier City may, in its sole discretion: (i) deduct the amount of
said Credit Card transaction from RX Technology Inc.' share of the revenue from
the Concession due and owing RX Technology Inc., if any, or (ii) bill RX
Technology Inc. in the amount of said Credit Card transaction, and RX Technology
Inc. shall pay Frontier City the same within five (5) days of receipt therefor,
or (iii) demand payment from RX Technology Inc. in the amount of said Credit
Card transaction and RX Technology Inc. shall pay Frontier City immediately upon
its receipt of Frontier City' demand. Failure of RX Technology Inc. to pay
Frontier City as set forth herein for any outstanding Credit Card transactions
shall constitute a breach of the Agreement.
(d) Termination of Acceptance.
In the event Frontier City' agreement with respect to the
Credit Cards terminates or Frontier City, in its sole discretion, determines
that it does not want RX Technology Inc. to accept Credit Cards as payment for
Goods hereunder, RX Technology Inc. agrees to discontinue acceptance of Credit
Cards and remove the Credit Card symbols from the Facility upon notification by
Frontier City.
Ex. B - 2
<PAGE>
2.
CHECK.
(a) Acceptance.
RX Technology Inc. represents and warrants that it shall
comply with Frontier City' current check authorization procedures (the "Check
Authorization Procedures"), as Frontier City may amend from time to time upon
notice to RX Technology Inc., prior to acceptance of a check as payment for
Goods. Notwithstanding the foregoing, RX Technology Inc. agrees that it shall
not contact TeleCheck directly, as set forth in Section 3 of the Check
Authorization Procedures but shall contact the Merchandise Office or a
Merchandise Supervisor to obtain authorization from TeleCheck.
(b) Returns and Adjustments.
(i) All disputes between RX Technology Inc. and any customer
respecting any check transaction hereunder shall be settled between RX
Technology Inc. and such customer. RX Technology Inc. agrees that in the event
of a dispute, RX Technology Inc. shall reasonably address the customer's concern
in a good faith manner.
(ii) RX Technology Inc. shall maintain a fair and consistent
policy for exchange and return of merchandise and for the adjustment of amounts
due on check transactions and such policy shall be the same as available to cash
and credit customers.
(iii) When a refund or payment is due to a customer for return
or adjustment, RX Technology Inc. shall prepare, execute and deliver to Frontier
City or cause to be delivered to Frontier City a legible Merchandise Return Slip
("Return Slip").
(iv) With respect to each legible Return Slip presented to
Frontier City hereunder, RX Technology Inc. represents and warrants that: (A)
the Return Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased with a check, (B) a sales draft
relating to and including the amount of the Return Slip was previously presented
to Frontier City and/or transmitted hereunder, (C) the Return Slip does not
duplicate information concerning the same transaction in any other Return Slip
unless Frontier City requests a resubmission, (D) the signature appearing on the
Return Slip is that of RX Technology Inc., and (E) RX Technology Inc. has
complied fully with the terms of this Agreement.
(c) Failure to Comply.
In the event RX Technology Inc. fails to comply with the Check
Authorization Procedures for a given check and said check is returned to
Frontier City, or in the event Goods are returned by the customer that paid by
check, RX Technology Inc. agrees that Frontier City may, in its sole discretion:
(A) deduct the amount of said check from RX Technology
Ex. B - 3
<PAGE>
Inc.' share of the revenue from the Concession due and owing RX Technology Inc.,
if any, or (B) bill RX Technology Inc. in the amount of said check, and RX
Technology Inc. shall pay Frontier City the same within five (5) days of receipt
therefor, or (C) demand payment from RX Technology Inc. in the amount of said
check and RX Technology Inc. shall pay Frontier City immediately upon its
receipt of Frontier City' demand. Failure of RX Technology Inc. to pay Frontier
City as set forth herein for any outstanding checks shall constitute a breach of
the Agreement.
(d) Termination of Acceptance.
In the event Frontier City agreement with TeleCheck terminates
and Frontier City does not wish to continue acceptance of checks in the Park or
Frontier City, in its sole discretion, determines that it does not want RX
Technology Inc. to accept checks as payment for Goods hereunder, RX Technology
Inc. agrees to discontinue acceptance of checks upon notification by Frontier
City.
3. CASH.
(a) Acceptance.
RX Technology Inc. represents and warrants that it shall cause
all cash received by or on RX Technology Inc.' behalf for sale of Goods
hereunder to be rung in the cash register or other Frontier City approved cash
collection equipment and deposited in such cash register or other equipment at
the time of sale.
(b) Returns and Adjustments.
(i) All disputes between RX Technology Inc. and any customer
respecting any cash transaction hereunder shall be settled between RX Technology
Inc. and such customer. RX Technology Inc. agrees that in the event of a
dispute, RX Technology Inc. shall reasonably address the customer's concern in a
good faith manner.
(ii) RX Technology Inc. shall maintain a fair and consistent
policy for exchange and retum of merchandise and for the adjustment of amounts
due on cash transactions and such policy shall be the same as available to
credit customers.
(iii) When a refund or payment is due to a customer for return
or adjustment, RX Technology Inc. shall prepare, execute and deliver to Frontier
City or cause to be delivered to Frontier City a legible Return Slip.
(iv) With respect to each legible Return Slip presented to
Frontier City hereunder, RX Technology Inc. represents and warrants that (A) the
Return Slip represents an amount lawfully due customer for the return or
adjustment of Goods previously purchased in cash, (B) a sales draft relating to
and including the amount of the Retum Slip was previously presented to Frontier
City and/or transmitted hereunder, (C) the Return Slip does not duplicate
information concerning the same transaction in any other Return Slip unless
Frontier City requests a resubmission, (D) the signature appearing on the Return
Slip is that of RX Technology Inc., and (E) RX Technology Inc. has complied
fully with the terms of this Agreement.
Ex. B-4
<PAGE>
(v) RX Technology Inc. agrees that in the event Goods
hereunder are returned on a day that said Goods were not purchased, Frontier
City may, in its sole discretion: (A) deduct the amount of said return from RX
Technology Inc.' share of the revenue from the Concession due and owing RX
Technology Inc., if any; (B) bill RX Technology Inc. in the amount of said
return and RX Technology Inc. shall pay Frontier City the same within five (5)
days of receipt therefor or (C) demand payment from RX Technology Inc. in said
amount and RX Technology Inc. shall pay Frontier City immediately upon receipt
of Frontier City' demand. Failure of RX Technology Inc. to pay Frontier City as
set forth herein for any amount outstanding shall constitute a breach of the
Agreement.
Ex. B - 5
<PAGE>
Credit Card Procedures
RX Technology Inc. represents and warrants that it shall follow the
following Credit Card Procedures, as may be amended from time to time by
Frontier City upon notice to RX Technology Inc.:
I. Each Credit Card sale shall be evidenced by a legible sales draft
(the "Draft") on a form approved by Frontier City, indicating the full amount
due for Goods sold hereunder.
2. Each Draft shall be imprinted by RX Technology Inc., or show
evidence of the electronic equivalent obtained through use of a terminal which
reads the magnetic stripe on the Credit Card.
3. The Draft shall include the following information: (i) Frontier
City' name and merchant account number, (ii) the city and state in which the
transaction takes place, (iii) the information on the Credit card, including the
account number, name and expiration date of the Credit Card, (iv) the date the
transaction takes place and the price of the Goods, (v) total amount of the
transaction, including all applicable taxes, (vi) description of Goods, and
(vii) signature of the Credit Card holder.
4. RX Technology Inc. shall compare the signature on the Draft with
the signature on the Credit Card to ascertain that they are the same, and if the
Credit Card has a photograph of the Credit Card holder, verify that the Credit
Card holder and the person presenting the Credit Card appear to be the same
person. If RX Technology Inc. believes there is a discrepancy in the signature
or if the photographic identification is uncertain, RX Technology Inc. shall
contact the service provider for instructions.
5. If the signature panel on the Credit Card is blank, RX Technology
Inc. shall do the following: (i) review positive identification to determine
that the user is the Credit Card holder; such identification must consist of a
current official government identification document (such as a passport or
driver's license) that bears the Credit Card holder's signature, (ii) indicate
such positive identification (including any serial number and expiration date)
on the Draft and (iii) require the Credit Card holder to sign the signature
panel of the Credit Card prior to completing the transaction.
6. For each Credit Card sale, RX Technology Inc. shall deliver or
cause to be delivered a copy of the completed sales draft to the customer,
evidencing the full amount due for the Goods.
7. RX Technology Inc. shall not complete a sales transaction without
first obtaining an authorization from the designated service provider for the
total amount of the transaction. RX Technology Inc. shall print legibly on the
Draft the authorization/approval code, evidencing any authorization so obtained.
Ex. B - 6
<PAGE>
Exhibit C
Employees
RX Technology Inc.' Employees shall include, as a minimum, the following:
No. of Employees Title
- ---------------- -----
1 Supervisor/Manager
3 Hosts/Hostesses
Ex. C - 0
<PAGE>
Exhibit D
FRONTIER CITY_________
______________________
______________________
CERTIFICATE OF INSURANCE
COMPANIES AFFORDING COVERAGE
COMPANY COMPANY
LETTER A LETTER D
COMPANY COMPANY
LETTER B LETTER E
COMPANY COMPANY
LETTER C LETTER F
COVERAGES
THIS CERTIFICATE IS TO CERTIFY TO FRONTIER CITY ______ OR ANY SUBSIDIARIES
HEREAFTER REFERRED TO AS "FRONTIER CITY" THAT POLICIES DESCRIBED BELOW HAVE BEEN
ISSUED TO THE INSURED BY THE UNDERSIGNED AND ARE IN FULL FORCE AND EFFECT AT
THIS TIME. IF ANY CHANGES ARE MADE IN THE POLICIES WHICH EFFECT THE INTEREST OF
FRONTIER CITY OR IF ANY OF THE POLICIES ARE CANCELED AT THE REQUEST OF EITHER
PARTY, WRITTEN NOTICE WILL BE GIVEN BY THE INSURANCE COMPANY TO FRONTIER CITY
AT LEAST THIRTY (30) DAYS PRIOR TO THE EFFECTIVE DATE THEREOF.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
CO. TYPE OF INSURANCE POLICY EFFE. EXP. LIMITS IN THOUSANDS
LTR. NUMBER DATE DATE
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
WORKERS COMPENSATION STATUTORY
EMPLOYERS LIABILITY (NOTE 1) EA. ACCIDENT $____
CERTIFICATE HOLDER NAMED ALT DISEASE-POLICY LIMIT $____
EMPLOYER DISEASE EA. EMPLOYEE $____
- --------------------------------------------------------------------------------------------------
GENERAL LIABILITY (NOTE 2) GENERAL AGG. $____
COMPREHENSIVE GENERAL LIABILITY PRODUCT-COMP/OPS AGG $____
CLAIMS MADE OCCURRENCE PERSONAL & ADV.INJURY $____
CERT. HOLDER NAMED ADDNL. INSURED EACH OCCURRENCE $____
WAIVER OF SUBROGATION WAIVED
AGAINST CERT. HOLDER FIRE DANIAGE
HOLD HARMLESS AGREEMENT WITH CERT. (ANY ONE FIRE) $____
HOLDER INSURED MEDICAL EXPENSE
PROFESSIONAL LIABILITY (ANY ONE PERSON) $____
- --------------------------------------------------------------------------------------------------
AUTO LIABILITY COMBINED SINGLE LIMIT $____
ANY AUTO BODILY INJURY
ALL OWNED (PER PERSON) $____
SCHEDULED AUTOS BODILY INJURY
CERT. HOLDER NAMED ADDNL. INSURED (PER ACCIDENT) $____
WAIVER OF SUBROGATION AGAINST
FRONTIER CITY PROPERTY DAMAGES $____
- --------------------------------------------------------------------------------------------------
CARE, CUSTODY AND CONTROL (NOTE 4) EACH OCCURRENCE $____
(IF APPLICABLE) AGGREGATE $____
ALL RISK DEDUCTIBLE $____
LEGAL LIABILITY FORM
- --------------------------------------------------------------------------------------------------
EXCESS LIABILITY (NOTE 5) EACH OCCURRENCE $____
UMBRELLA AGGREGATE $____
OTHER THAN UMBRELLA FORM DEDUCTIBLE $____
- --------------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS /LOCATIONS/RESTRICTIONS
PRODUCER/AGENT INSURED
I DO HEREBY CERTIFY THAT THE INSURERS LISTED HEREIN ARE
AUTHORIZED TO TRANSACT BUSINESS IN AND FOR THE STATE OF DATE ISSUED___________
_____ AND CARRY A. M. BEST RATINGS OF ____________________________
____________________________
AUTHORIZED REPRESENTATIVE REVERSE SIDE MUST BE COMPLETED
(OVER)
_____________________________
</TABLE>
Ex. D - 1
<PAGE>
POLICIES LISTED ON REVERSE SIDE INCLUDE COVERAGE FOR:
<TABLE>
<CAPTION>
CHECK ONE
YES NO
<S> <C> <C>
NOTE (1) WORKERS COMPENSATION AND EMPLOYER3 LIABILITY
(A) VOLUNTARY COMPENSATION ENDORSEMENT? ______ ______
(B) DOES POLICY INCLUDE "WAIVER OF SUBROGATION ENDORSEMENT"
AS REQUIRED BY CONTRACT WITH FRONTIER CITY? ______ ______
(C) ALTERXATE EMPLOYER ENDORSEMENT IN FAVOR OF FRONTIER CITY? ______ ______
(D) COVERAGE IS AFFORDED IN THE STATES OF:
______________________________________
NOTE (2) COMPREHENSIVE GENERAL LIABILITY
(A) COVERAGE WRITTEN ON A COMPREHENSIVE FORM? ______ ______
(B) PRODUCTS OR COMPLETED OPERATIONS COVERAGES INCLUDED? ______ ______
(C) IS POLLUTION COVERAGE INCLUDED? ______ ______
(D) CONTRACTUAL LIABILITY COVERING HOLD HARMLESS AGREEMENT
IN CONTRACT WITH FRONTIER CITY? ______ ______
(E) WAIVER OF SUBROGATION ENDORSEMENT AGAINST FRONTIER CITY? ______ ______
(F) IS FRONTIER CITY NAMED AS ADDITIONAL INSURED? ______ ______
(G) HAVE THERE EVER BEEN ANY PROFESSIONAL LIABILITY ACTIONS
AGAINST THE INSURED? IF YES, PLEASE EXPLAIN.___________ ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
HAVE THERE BEEN ANY SETTLEMENTS? IF YES, PLEASE EXPLAIN. ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
HAVE THERE BEEN ANY JUDGEMENTS? IF YES, PLEASE EXPLAIN. ______ ______
_______________________________________________________
_______________________________________________________
_______________________________________________________
NOTE (3) AUTO LIABILITY
(A) ALL OWNED, HIRED AND NON-OWNED VEHICLES? ______ ______
(B) WAIVER OF SUBROGATION AGAINST FRONTIER CITY? ______ ______
(C) IS FRONTIER CITY NAMED AS ADDITIONAL INSURED? ______ ______
NOTE (4) CARE, CUSTODY AND CONTROL
(A) IS COVERAGE INCLUDED FOR DAMAGES TO FRONTIER CITY PROPERTY WHILE
BEING RAISED, LIFTED OR LOWERED WHILE USING CRANE, BOOMS OR
HOISTS? ______ ______
NOTE (5) UMBRELLA FORM
(A) IS COVERAGE EXCESS OVER PRIMARY COMMERCIAL LIABILITY AND
EMPLOYERS LIABILITY? ______ ______
(B) IS FRONTIER CITY NAMED AS ADDITIONAL INSURED? ______ ______
(C) WAIVER OF SUBROGATION AGAINST FRONTIER CITY? ______ ______
</TABLE>
Ex. D - 2
<PAGE>
EXHIBIT 10.32
LEASE WITH OAKMONT FINANCIAL SERVICES
Acct. #66346
<PAGE>
=============================
OAKMONT FINANCIAL SERVICES
=============================
EQUIPMENT LEASING SPECIALISTS
Date: 8/15/97
o LEASE MANAGERS INTERNATIONAL
o 24412 S MAIN ST #114
o CARSON CA 90745
o
o
Re: Lease dated 7/17/97 (the "Lease") between Oakmont Financial Services ("OFS")
and RX, TECHNOLOGY, INC. ("Lessee") Lease No. 66346.
For the sum of one dollar ($1.00) and other considerations, provided all rental
and other moneys due OFS pursuant to the Lease have been fully paid, OFS agrees
to assign and release to you any interest OFS may have in the equipment which
is the subject of the lease (the "Equipment") or pay to you any proceeds
received by OFS from the sale or other disposition of the Equipment whether to
the Lease or otherwise. OFS shall have no obligation to locate, recover or
deliver the Equipment to you or to recover any proceeds from the disposition
thereof all, of which shall be your sole responsibility. OFS MAKES NO WARRANTIES
OR REPRESENTATIONS WITH RESPECT TO THE EQUIPMENT, INCLUDING WITHOUT LIMITATION
THE WARRANTY OF MERCHANTABILITY AND FITNESS, OF ANY KIND OR NATURE AND YOU AGREE
TO ACCEPT THE SAME "AS IS" AND "WHERE IS". All taxes arising from the
transactions contemplated herein shall be borne by you.
Oakmont Financial Services
By: /s/ Mohammed Ahsan
-----------------------------------
Mohammed Ahsan, Vice President
/podoll
800 WILSHIRE BLVD. SUITE 700, LOS ANGELES, CA 90017
800/749.1059 o 213/452.1200 o FAX 213/452.1205
<PAGE>
#66346
SCHEDULE "A"
QUANTITY EQUIPMENT DESCRIPTION
- -------- ---------------------
The following equipment us located at: Buffalo Bill's Hotel & Casino
1-15 South
California & Nevada Border
Primm, NV 89019
2 DXC 9000 Cameras
2 Fujinon S14 x 7.3 BWMD Lens
2 CCTZ-3RGB Sony DXC-950 camera cable
2 CCU-M5
2 RM 930 Control Unit for DXC 9000 Camera
2 CCMC-1210P3 S Meter Cable
The following equipment is located at: Six Flags Over Mid-America
I-44 & Allentown
Eureka, MO 63025
2 DXC 9000 Cameras
2 Fujinon S14 x 7.3 BWMD Lens
2 CCTZ-3RGB Sony DXC-950 camera cable
2 CCU-M5.
2 RM 930 Control Unit for DXC 9000 Camera
2 CCMC-1210P3 S Meter Cable
- --------------------------------------------------------------------------------
Debtor: RX Technology, Inc. and Amtronics, Inc.
As Co-Debtors
By: /s/ Donald Rex Gay
------------------------------------------------
Donald Rex Gay, President of RX Technology, Inc.
By:
------------------------------------------------
Donald Rex Gay, President of Amtronics, Inc. DATE: 7-17-97
----------
<PAGE>
=============================
OAKMONT FINANCIAL SERVICES
=============================
EQUIPMENT LEASING SPECIALISTS
Date: 8/15/97
o RX TECHNOLOGY, INC.
o 3220 N TUMBULL DR
o METAIRIE LA 70002
o
o
Re: Equipment Lease # 66346
Dear Lessee:
We are pleased to add you to Oakmont Financial Services growing family of
satisfied lessees. It is our sincere hope that we can help you prosper by
supporting your business through each stage of its growth.
For your information:
The number of payments remanding: 58
The amount of each lease payment: $1,035.99
Please be advised that billing and collections will be handled by our parent
company, your account will be automatically debited by our parent company.
HERITAGE FINANCIAL SERVICES
From time to time, Heritage will contact you concerning matters involved in
administering your lease and for final payment at lease expiration. In addition,
for property tax purposes, we are treating the lease equipment as being owned by
you; therefore, please include the equipment on your annual property tax
statement under Part II "declaration of Property Belonging to you" Item #2
"Equipment".
It has been a sincere pleasure to have been of services to you in your financing
needs and please contact Vice President, Mohammed Ahsan or me at (213) 452-1200
or (800) 749-1059 for any future equipment financing needs.
Oakmont Financial Services
/s/ Wendy Kochi
Wendy Kochi
Operations Manager
800 WILSHIRE BLVD SUITE 700, LOS ANGELES, CA 90017
800/749.1059 o 213/452.1200 o FAX 213/452.1205
<PAGE>
EQUIPMENT FINANCING AGREEMENT
Agreement No. 66346
- --------------------------------------------------------------------------------
("DEBTOR")
FULL LEGAL NAME RX Technology, Inc.
----------------------------------------------------------------
BILLING ADDRESS 3220 N. Tumbull Dr.
----------------------------------------------------------------
CITY Metairie STATE LA COUNTY ZIP CODE 70002
----------------- ------------ ----------- ------
CONTACT Donald Rex Gay TELEPHONE NUMBER 504-887-9412
-------------- ------------
- --------------------------------------------------------------------------------
QUANTITY
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FULL DESCRIPTION OF COLLATERAL INCLUDING MODEL, SERIAL NUMBER
- --------------------------------------------------------------------------------
See Attached Schedule "A"
- --------------------------------------------------------------------------------
ITEMIZED ADVANCE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TOTAL ADVANCE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
COLLATERAL LOCATION (IF DIFFERENT FROM BILLING ADDRESS)
- --------------------------------------------------------------------------------
TERM OF LOAN MONTHLY PAYMENT INITIAL PAYMENT DATE ADVANCE PAYMENT
- --------------------------------------------------------------------------------
60 Months $1,035.99 _______, 19___ $1,035.99
- --------------------------------------------------------------------------------
INITIAL PAYMENT
CHECK FOR THIS AMOUNT MUST ACCOMPANY AGREEMENT
$ 2,396.98
|X| FIRST |X| ADVANCE
|X| OTHER UCC Search, etc.
- --------------------------------------------------------------------------------
TERMS OF EQUIPMENT FINANCING AGREEMENT
Debtor and Creditor agree as follows:
1. SECURITY INTEREST. Debtor hereby grants Creditor a security interest under
the Uniform Commercial Code in the above property (collectively the "Collateral"
and individually an "Item of Collateral"). Such security interest is granted to
secure performance by Debtor of its obligations hereunder and under any other
present or future agreement with Creditor. Debtor shall insure that such
security interest is and shall remain a sole first [ILLEGIBLE] security
interest.
2. PAYMENTS. Debtor shall repay creditor the above "Total Advance" together with
interest in the number of monthly installments in the amount indicated above.
The initial installment payment shall be deemed due as of the date indicated
above, and subsequent installment payments shall be due on the same day of each
month thereafter until paid. All other amounts due hereunder shall be due upon
Debtor's receipt of Creditor's invoice therefor. Advance payments shall be
applied to the last installment payments in reverse order until exhausted;
provided that there is a default, any payments under this agreement may be
applied to Debtor's obligation to Creditor in such order as Creditor chooses.
3. NO AGENCY. DEBTOR ACKNOWLEDGES THAT NO SUPPLIER OF AN ITEM OR INTERMEDIARY
NOR ANY AGENT OF EITHER THEREOF IS AN AGENT OF CREDITOR AND FURTHER THAT NONE OF
SUCH PARTIES IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS
AGREEMENT. NO REPRESENTATION AS TO ANY MATTER BY ANY SUCH PARTY SHALL BIND
CREDITOR OR AFFECT DEBTOR'S DUTY TO PAY THE INSTALLMENT PAYMENTS AND PERFORM ITS
OTHER OBLIGATIONS HEREUNDER.
4. NON CANCELLABLE AGREEMENT; PREPAYMENT; NO OFFSET. THIS AGREEMENT IS NON
CANCELLABLE BY DEBTOR FOR ANY REASON WHATSOEVER. DEBTOR MAY PREPAY THE
INSTALLMENT PAYMENTS ONLY IN ACCORDANCE HEREWITH. ALL PAYMENTS HEREUNDER ARE TO
BE MADE WITHOUT OFFSET.
5. FINANCING. THIS AGREEMENT IS SOLELY A FINANCING AGREEMENT, CREDITOR HAS HAD
NO INVOLVEMENT IN THE SELECTION OR PURCHASE OF AND HAS MADE AND HEREBY MAKES NO
AGREEMENT, REPRESENTATION OR WARRANTY AS TO ANY ITEM OF COLLATERAL.
SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE PART OF THE
AGREEMENT.
This agreement is effective only upon execution by an authorized officer of
Creditor following Debtor's execution hereof, and upon executive Creditor shall
find the Total Advance, Debtor hereby authorizes Creditor in disburse the Total
Advance as follows:
Creditor reserves the right to pay the applicable portion of the Total Advance
jointly to any party not specified in the preceding sentence with a security
interest in an Item of Collateral.
- --------------------------------------------------------------------------------
(CREDITORS) (DEBTOR)
Oakmont Financial Services RX Technology, Inc.
--------------------------------------
PRINT FULL LEGAL NAME OF DEBTOR ABOVE
By /s/ Mohammed Ahsan VP BY /s/ Donald Rex Gay
---------------------------------- -----------------------------------
(TITLE) (AUTHORIZED SIGNATURE AND TITLE)
Donald Rex Gay, President of
RX Technology, Inc.
BY
-----------------------------------
(AUTHORIZED SIGNATURE AND TITLE)
BY
-----------------------------------
(AUTHORIZED SIGNATURE AND TITLE)
DATE 8-15-97 DATE 7-17-97
-------------------------------- ---------------------------------
- --------------------------------------------------------------------------------
<PAGE>
CONTINUING GUARANTY OF INDEBTEDNESS
TO: Oakmont Financial Services
RE: RX Technology, Inc. ("Customer")
(1) GUARANTY; DEFINITION OF "INDEBTEDNESS", The undersigned ("Guarantors")
will be benefited by the success of Customers. In consideration of your
providing leasing services and/or financial accommodation to Customer from time
to time Guarantors jointly and severally unconditionally guarantee and promise
to pay in lawful money of the United States to you or your order, and to
perform, on demand, any and all indebtedness of Customers to you. The word
"Indebtedness" is used herein in its most comprehensive sense and includes any
and all advances, debts, obligations and liabilities of Customers, or any of
them, heretofore, now or hereafter made, incurred or created, under leases,
credit sales, equipment finance agreements, notes, security agreements or
otherwise, whether voluntary or involuntary and however arising, whether due or
not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, and whether Customers may be liable individually or jointly, or
whether recovery upon such Indebtedness may be or hereafter become barred by any
statute of limitations or otherwise unenforceable in whole or in part for any
other reason including the bankruptcy of Customers.
(2) SUCCESSIVE TRANSACTIONS; WRITTEN NOTICE OF REVOCATION. This is a
continuing guaranty related to any Indebtedness, including that arising under
successive transactions which shall either continue the Indebtedness, renew it
after it has been satisfied or create new Indebtedness. This Guaranty shall not
apply to any new Indebtedness created after actual receipt by you of written
notice of this Guaranty's revocation as to such new Indebtedness; provided,
however, that extensions, renewals or modifications, of any kind, of
Indebtedness incurred by Customers prior to receipt by you of such revocation
notice and additional Indebtedness created pursuant to previously executed
commitments shall not be considered new Indebtedness. Any such notice must be
sent to you by registered mail with U.S. Mail postage prepaid, addressed to you
at 2280 Vehicle Drive, Suite 100, Rancho Cordova, CA 95670. As contemplated in
paragraph 10, a notice of revocation from one of the Customers will not effect
the liability of any of the other Guarantors.
(3) OBLIGATIONS JOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF
LIMITATIONS; REINSTATEMENT OF LIABILITY. Guarantors' obligations hereunder are
joint and several and independent of the obligations of Customers, and a
separate action or actions may be brought and prosecuted against Guarantors,
whether an action is brought against Customers or whether Customers be joined in
such action or actions. Guarantors waive the benefit of any statute of
limitations affecting Guarantors' liability hereunder or the enforcement thereof
and agree that any payment of any Indebtedness or other act which shall tell any
statute of limitations applicable thereto shall also operate to full such
statute of limitations applicable to Guarantors' liability hereunder. The
liability of Guarantors hereunder shall be reinstated and revived and your
rights shall continue with respect to any amount paid by any party on account of
the Indebtedness, which shall thereafter be required to be restored or returned
by you upon the bankruptcy, insolvency or reorganization of such party or for
any other reason, all as though such amount had not been paid.
(4) AUTHORIZATIONS. Guarantors authorize you, either before or after
revocation hereof, without notice or demand and without affecting Guarantors'
liability hereunder, even though your action might otherwise give Guarantors the
ability to avoid further liability under this Guaranty, from time to time to (a)
amend, renew, extend, accelerate, compromise, or otherwise change or waive any
of the terms applicable to the Indebtedness or any part thereof; (b) take and
hold security for the payment of this Guaranty or the Indebtedness and exchange,
enforce, waive, release and consent, to the owner's lease or other disposition
of any such security; (c) apply such security and direct the order or manner of
sale thereof, including without limitation, a non-judicial sale permitted by the
terms of the controlling security agreement, mortgage or deed trust, as you in
your discretion may determine; (d) consent to Customers' assignment of any lease
with is part of the Indebtedness or Customers' sublease of any related property;
and (e) release or substitute any one or more Customers' or endorsers or
guarantors of the Indebtedness. You may without notice assign this Guaranty in
whole or in part. Guarantee may not assign Guarantors' obligations hereunder.
(5) GUARANTORS' WARRANTIES. Guarantors warrant that (a) this Guaranty is
executed at Customers' request; (b) Guarantors will not, without your prior
written consent, sell, lease, assign, encumber, hypothecate, transfer or
otherwise dispose of all or substantially all of Guarantors' assets, or any
interest therein; and (c) Guarantors have established adequate means of
obtaining from Customers on a continuing basis financial and other information
pertaining to Customers' financial condition and business activities. Guarantors
agree to keep adequately informed from such means of any facts, events or
circumstances which might in any way affect Guarantors' risks hereunder. With
respect to information or material acquired in the course of your relationship
with Customers, Guarantors agree that you shall have no obligation to disclose
such information or material to Guarantors.
(6) GUARANTORS' WAIVERS. Guarantors waive any rights to require you to
(a) proceed against any person, including Customers or any other guarantors of
the Indebtedness; (b) proceed against or exhaust any property you leased to or
any collateral held from Customers, any other guarantors of the Indebtedness or
any other person; (c) give notice of the terms, time and place of any public or
private sale of any personal property security held with respect to this
Guaranty or in connection with a transaction with Customers, comply with any
other provisions of Section 9504 of the Uniform Commercial Code which may be
applicable or give any notice with respect to leased or any other property
repossessed from Customers; (d) pursue any other remedy in your power; or (e)
make any presentments or demands for performance, give any notices of
nonperformance, protests, notices of protests or notices of dishonor or give any
other notices in connection with the Indebtedness or this Guaranty including in
connection with the creation of new or additional Indebtedness or any
modifications, renewal, or extension of the Indebtedness.
Guarantors waive any defense to liability under this Guaranty which
Guarantors might otherwise have arising by reason of (a) any disability or other
defense of Customers, any other guarantors or any other person; (b) the
cessation from any cause whatsoever, other than payment and performance in full,
of the Indebtedness; (c) the application by Customers of the proceeds of, or use
of any property leased in connection with, any Indebtedness for purposes other
than the purposes represented by Customers to you or understood by you or
Guarantors; (d) any act or omission by you which directly or indirectly results
in or aids the discharge of Customers on any Indebtedness by operation of law or
otherwise, including your failure to file a document or to give a notice; (e)
your failure to enforce or delay in enforcing any right you may have respecting
the Indebtedness; or (f) any impairment of any security for the Indebtedness,
this Guaranty or any other guaranty of the Indebtedness. Guarantors shall have
no right of subrogation respecting your rights against Customers or right of
reimbursement or contribution against Customers arising out of the performance
of this Guaranty, and Guarantors further waive any other right to enforce any
remedy which you now have or may hereafter have against Customers, any other
guarantors or any other person and waive any benefit of, or any right to
participate in, any security whatsoever now or hereafter held by you for the
Indebtedness. The waivers in the preceding sentence are permanent if Guarantors
are "insiders" as contemplated by the United States Bankruptcy Code, 11 U.S.C.
ss. 101, and thus Guarantors are not "creditors" of Customers within the meaning
of the United States Bankruptcy Code, 11 U.S.C. ss. 101 (10) or ss. 547 (b).
Otherwise those waivers apply only until all Indebtedness shall have been paid
and performed in full. The waivers contained in this Guaranty include the waiver
by Guarantors of any rights and defenses which Guarantors might have as a result
of an impairment of any subrogation, reimbursement or contribution rights
Guarantors may have, which impairment results from any rights, powers or
remedies of Customers in connection with any anti-deficiency or similar laws
limiting or qualifying the Indebtedness, including California Code of Civil
Procedure ss. 580 (d).
Guarantors warrant and agree that each of the waivers set forth above are
made with guarantors' full knowledge of their significance and consequences,
including that without these waivers guarantor might be able to avoid further
liability under this guaranty upon the occurrence of an event to which a waiver
relates, and that under the circumstances the waivers are reasonable and not
contrary to public policy or law. If any of said waivers are determined to be
contrary to any applicable law or public policy, such waivers shall be effective
only to the extent permitted by law.
(7) SUBORDINATION OF CUSTOMERS' DEBTS TO GUARANTORS. Any Indebtedness of
Customers now or hereafter held by Guarantors is hereby subordinated to the
Indebtedness. Such indebtedness of Customers to Guarantors is assigned to you as
security for this Guaranty and the Indebtedness and, if you request, shall be
collected and received by Guarantors as trustees for you and paid over to you on
account of the Indebtedness but without reducing or affecting in any manner the
liability of Guarantors under the other provisions of this Guaranty, Guarantors
will mark any notes now or hereafter evidencing such indebtedness of Customers
with a legend that such notes are subject to this Guaranty and, if you so
request, will deliver such notes to you. Guarantors will execute and deliver to
you such financing and continuation statements and other documents and take such
other action as you deem necessary or appropriate to perfect, preserve and
enforce your rights hereunder.
(8) WAIVER OF AUTHENTICATION OF VALIDITY OF ACTS OF CORPORATION OR
PARTNERSHIP. Where any one or more of Customers are corporations or
partnerships, it is not necessary for you to inquire into the power of Customers
or the officers, directors, partners, or agents acting or purporting to act in
their behalf, and any Indebtedness made or created in reliance upon the
professed exercise of such power shall be guaranteed hereunder.
(9) FEES, COSTS AND EXPENSES IN CONNECTION WITH ENFORCEMENT OF GUARANTY
AND COLLECTION INDEBTEDNESS. Guarantors agree to pay reasonable attorneys' fees
and all other costs and expenses which may be incurred by you in the enforcement
of the Guaranty.
(10) APPLICATION OF SINGULAR AND PLURAL IN CONTEXT AND CONSTRUCTION. In
all cases where there is but a single Guarantor or Customer, then all words used
herein in the plural shall be deemed to have been used in the singular where the
context and construction to require; and where there is more than one Customer
or Guarantor named herein, the word "Customers" or "Guarantors" shall mean all
and any one or more of them as the context requires.
(11) CALIFORNIA LAWS APPLICABLE. This Guaranty is governed by and
construed in accordance with the laws of the State of California. Venue for any
related action will be in an appropriate court chosen by you have jurisdiction
over the parties.
In Witness Whereof, Guarantors have executed this Guaranty as of 7/17,
1997.
INDIVIDUAL OR PARTNERSHIP: CORPORATE:
/s/ Donald Rex Gay
- ------------------------------------- --------------------------------------
Donald Rex Gay
- ------------------------------------- --------------------------------------
(An Individual) (Authorized Signature)
Home or Partnership Corporate
Address: Address:
LIMITATIONS TO JOINT ASSETS
Despite anything to the contrary in the above guaranty, the liability to
the Customers signing below shall be limited to such Customers' Interest in
property now held jointly, whether in tenancy in common, joint tenancy of
community property or otherwise, with Customers or with any other guarantor of
Customers' obligations to you and to the proceeds of such property, including
but not limited to all money or property acquired in consideration of or in
exchange for such property.
--------------------------------------
(An Individual)
--------------------------------------
(An Individual)
<PAGE>
EXHIBIT 10.33
LEASE WITH IMPERIAL BUSINESS CREDIT
LEASE NUMBER #177871
<PAGE>
LESSOR: IMPERIAL BUSINESS CREDIT, INC. 177871
LEASE NUMBER
================================================================================
BUSINESS EQUIPMENT LEASE
================================================================================
LESSEE NAME
RX Technology, Inc.
- --------------------------------------------------------------------------------
LESSEE ADDRESS CITY COUNTY STATE ZIP
2264 7th Street Mandeville St. Tammans LA 70771
- --------------------------------------------------------------------------------
SUPPLIER/VENDOR NAME ADDRESS CITY STATE ZIP
Business Computer / Micro Outlet
================================================================================
QUANTITY DESCRIPTION: MODEL No., Serial No., or other Identification COST
================================================================================
See attached Schedule "A" attached hereto and made part of. 30,882.31
- --------------------------------------------------------------------------------
EQUIPMENT LOCATION: STREET CITY COUNTY STATE ZIP
If other Than
Billing Address
================================================================================
PAYMENT DUE DATE RENT PAYMENTS SECURITY DEPOSIT SALES/USE TAX
================================================================================
Of Each
Month $1187.25 Monthly $0 $INCL
================================================================================
TOTAL PAYMENT LEASE TERM
================================================================================
$1187.25 36 Months
- --------------------------------------------------------------------------------
Advance Payment of $2374.50 which equals the first and last 1 payment(s), The
Security Deposit and a $125.00 documentation fee MUST ACCOMPANY LEASE.
- --------------------------------------------------------------------------------
1. LEASE. Lessee hereby agrees to lease from Lessor the personal property
described above (herein called the "Equipment"); and requests that Lessor
purchase the Equipment from the Supplier/Vendor named above. This Lease shall
become NONCANCELLABLE DURING THE TERM STATED ABOVE by Lessee for any reason
whatsoever, and Lessee shall be obligated to pay Lessor all sums called for in
the Business Equipment Lease (herein called the "Lease").
2. COMMENCEMENT AND TERMINATION. This Lease shall be binding on Lessor only when
accepted and signed by a duly authorized officer of Lessor. Lessor may insert in
the space appearing below the "Lease Start Date," which shall be the earlier of
the date the Equipment (or any portion of it) is delivered to Lessee or the date
Lessor disburses the purchase price (or any portion of it) to the supplier.
Provided Lessee has successfully performed all its duties and obligations under
the Lease, it shall terminate upon expiration of the number of months (following
the lease Start Date) stated as the Lease Term.
3. RENT AND OTHER PAYMENTS. Lessee shall pay the advance rentals due under this
Lease, as stated above, upon signing this Lease. All such amounts shall be
non-refundable. Monthly rent payments due after the first month's rent shall be
payable on the "Payment Due Date" indicated above or on the first business day
thereafter if a Payment Due Date falls on a non-business day. The Payment Due
Date shall be either the 1st or the 15th of each month, whichever is next closer
to the Lease Start Date, as determined by Lessor. In addition to regular
rentals, Lessee shall pay to Lessor interim rent for the use of the Equipment
prior to the due date of the first payment interim rent shall be in an amount
equal to 1/30th of the monthly rental, multiplied by the number of days elapsing
between the date on which the Equipment is accepted by Lessee and the Lease
Start Date of this Lease, together with the number of days elapsing between the
Lease Start Date and the due date of the first payment. The payment of interim
rent shall be due and payable upon Lessee's receipt of invoice from Lessor.
Lessee agrees to pay to Lessor a service charge of 5% per month, but not to
exceed the maximum amount permitted by law, on any payment due under this Lease
which is not paid within five days of the Payment Due Date. Lessee shall pay all
sales, use, excise, personal property,. Stamp, documentary, and ad valorem
taxes, licenses and registration fees, assessments, fines, penalties, and other
charges imposed on the ownership, possession, or use of the Equipment during the
term of this Lease, and Lessee shall pay all taxes (except income taxes imposed
on Lessor) with respect to the rental payments hereunder, and shall, with the
next scheduled payment reimburse Lessor for any taxes paid by or advanced by
Lessor. Lessee's obligation to pay such taxes, fees, assessments, fines,
penalties and other charges shall survive termination of the Lease. Lessee
agrees that Lessor may adjust the rent payment proportionally up or down if the
actual cost of the Equipment exceeds or is less than the amount stated in the
Lease. All payments under this Lease shall be made to Lessor at the address set
forth above or at any other address Lessor subsequently gives to Lessee for
purposes of making payment. In the event of default, payments made under the
Lease may be applied to Lessee's obligation to Lessor in any order Lessor
chooses.
================================================================================
================================================================================
4. SELECTION OF EQUIPMENT. Lessee acknowledges that Lessor did not participate
in the selection, manufacture or supply of the Equipment and that Lessee has
made the selection of the Equipment and the supplier of such Equipment based
upon its own judgment. Lessee agrees to inspect the Equipment and to execute the
"Certificate of Acceptance", which is attached hereto, only after the Lessee is
satisfied that the Equipment is satisfactory in every respect. Lessee hereby
authorizes Lessor to insert in the Lease any equipment serial numbers and other
identification data relating to the Equipment as needed.
5. DISCLAIMER OF WARRANTIES. BY SIGNING BELOW, LESSEE ACKNOWLEDGES THAT LESSOR
IS LEASING THE EQUIPMENT TO LESSEE "AS IS" AND WITH ALL FAULTS, LESSOR SHALL NOT
BE RESPONSIBLE IF THE EQUIPMENT IS NOT PROPERLY INSTALLED, DOES NOT OPERATE AS
REPRESENTED OR GUARANTEED BY THE SUPPLIER, OR IS UNSATISFACTORY FOR ANY REASON.
LESSOR MAKES NO REPRESENTATIONS AND DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, CONCERNING THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY
OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. LESSEE HEREBY WAIVES
ANY CLAIM (INCLUDING ANY CLAIM BASED ON STRICT OR ABSOLUTE LIABILITY IN TORT) IT
MIGHT HAVE AGAINST LESSOR FOR ANY LOSS, DAMAGE (INCLUDING INCIDENTAL OR
CONSEQUENTIAL DAMAGE) OR EXPENSE CAUSED BY THE EQUIPMENT. Provided Lessee is not
in default of this Lease, Lessor hereby assigns to Lessee and Lessee shall have
the benefit of, any and all manufacturer's warranties, service agreements and
patent indemnities, if any, with respect to the Equipment; provided, however, t,
that Lessee's sole remedy for breach of any such warranty, indemnification or
service agreement shall be against the manufacturer of such Equipment and not
against the Lessor, nor shall such breach have any effect whatsoever on the
rights and obligations of Lessor or Lessee hereunder. LESSEE ACKNOWLEDGES THAT
NEITHER THE SUPPLIER, BROKER NOR THEIR AGENTS OR EMPLOYEES ARE AGENTS NOR ARE
THEY AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE WITHOUT
THE WRITTEN CONSENT OF LESSOR, NO AGREEMENT, EITHER WRITTEN OR VERBAL, BETWEEN
SUPPLIER AND LESSEE OR BROKER AND LESSEE SHALL BIND LESSOR UNLESS LESSOR
SPECIFICALLY CONSENTS TO SUCH AGREEMENT IN WRITING.
6. AMENDMENTS. No term or provision of this Lease may be amended, altered,
waived, discharged or terminated except by a written instrument signed by the
parties hereto, and, in compliance with U CC ss.2A-208(2) requiring a separate
signature of this provision. Lessee has signed in the space provided below.
Lessor and Lessee have specifically
negotiated and Agreed to the
preceding paragraphs 4,5 and 6 /s/ DRG
--------------------
Lessee's Initials
SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE A PART OF THIS
LEASE.
================================================================================
================================================================================
ACCEPTED BY: Imperial Business Credit
BY /s/ Leanna Dolan - Jones
-----------------------------------------------------------------------------
1-15-97
- --------------------------------------------------------------------------------
DATE (LEASE START DATE)
This agreement shall not be effective until executed by the Lessee and accepted
by an authorized representative of Lessor at its principal place of business.
LESSEE RX Technology, Inc.
--------------------------------------------------------------------------
BY /s/ Donald Rex Gay
------------------------------------------------------------------------------
WITNESS DATE
------------------------------------------------------------------------------
================================================================================
PERSONAL GUARANTY
================================================================================
In consideration of Lessor entering into the above Business Equipment Lease (the
"Lease"), the undersigned ("Undersigned") jointly and severally, personally and
unconditionally guarantee to Lessor the prompt payment in full, when due, of all
of Lessee's obligations under the Lease including without limitation, every
rental payable and the accelerated balance of rentals if demanded by Lessor.
Lessor shall not be required to proceed against Lessee or the Equipment or
enforce any other remedy before proceeding against the Undersigned. The
Undersigned agrees to pay all attorneys fees and other expenses incurred by
Lessor by reason of any default of Lessee or in enforcing the Lease or this
Guaranty. The Undersigned waives notice of acceptance hereof and all other
notices or demands of any kind to which the Undersigned may be entitled and
consents to the granting of extensions of time payment to Lessee and other
obligors and guarantors and to any other amendments or adjustments in the terms
of the lease. The Personal Guaranty shall bind the heirs, administrators,
representatives, successors and assigns of guarantors and may be enforced by or
for the benefit of any assignee or successor of Lessor. The Undersigned agrees
that all actions arising directly or indirectly from this Guaranty shall only be
litigated in the state and jurisdiction of any local, state or federal court in
any of such states. The Undersigned further waives personal service of any and
all process upon the Undersigned, and consents that service be made by certified
mail directed to the Undersigned at the address shown below, and that service
shall be effective two (2) days after mailing.
SIGNATURE X /s/ Donald Rex Gay SIGNATURE X /s/ RX Technology, Inc.
--------------------------- -------------------------
(INDIVIDUAL CAPACITY) (INDIVIDUAL CAPACITY)
(PRINT NAME) Donald Rex Gay (PRINT NAME)
--------------------------- -------------------------
HOME HOME
2264 7th Street
ADDRESS 3609 Neyrey, Metairve, LA 70002 ADDRESS Mandeville, LA 70471
------------------------------- -----------------------------
HOME HOME
PHONE NO.504 88-8112 DATE PHONE NO. DATE
------------- ----------- -----------
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE "A" ATTACHED HERETO AND MADE A PART HEREOF
Vendor:
Micro Outlet
326 Maple Avenue
Torrance CA 90503
Telephone: 310-533-1177 Fax:
- --------------------------------------------------------------------------------
QTY DESCRIPTION
01 1 NT Server as follows:
01 128 Megs SDRAM
01 9 Gigs SCSI Hard Drive
01 2 meg PCI Video Card
01 3 Com 100 mb PCI Combo Network Card
01 Microsoft Mouse
01 104 Enhanced Keyboard
01 24x CDROM
01 56k Modem
01 4 gig tape Backup System with Aroserve
01 266 mhz Processor with High end CPU Fan
01 1.44 MHZ
01 Medium Case with 250-300 Watt Power Supply
01 15" SVGA PnP Monitor
01 APC /battery Backup
01 Microsoft NT Server version 4.0
01 NT Workstation
01 64 Meg SDRAM
01 512 Pipeline Burst Cache
01 5.1 Gig Hard Drive
01 2meg PCI Video Card /3 Com 100 mb PCI Combo Network Card
01 233mhz Processor with High end CPU Fan /24x CDROM
01 1.44 Floppy Disk Drive / Internal Zip Drive / 56k Modem
01 Mini Tower with 230 Watt Power Supply / Microsoft Moust
01 104 Enhanced Keyboard / 17" SVGA PnP Monitor
01 Microsoft NT Workstation 4.0
Annexed and made a part of a Lease Agreement dated: 11/18/97 entered into
between RX Technology, Inc. as Lessee and Lease Managers International, Inc. as
lessor.
/s/ Donald Rex Gay
- ----------------------
Donald R. Gay
<PAGE>
SCHEDULE "A" ATTACHED HERETO AND MADE A PART HEREOF
Vendor:
Micro Outlet
326 Maple Avenue
Torrance CA 90503
Telephone: 310-533-1177 Fax:
- --------------------------------------------------------------------------------
QTY DESCRIPTION
01 1 NT Server as follows:
01 128 Megs SDRAM
01 9 Gigs SCSI Hard Drive
01 2 meg PCI Video Card
01 3 Com 100 mb PCI Combo Network Card
01 Microsoft Mouse
01 104 Enhanced Keyboard
01 24x CDROM
01 56k Modem
01 4 gig tape Backup System with Aroserve
01 266 mhz Processor with High end CPU Fan
01 1.44 MHZ
01 Medium Case with 250-300 Watt Power Supply
01 15" SVGA PnP Monitor
01 APC /battery Backup
01 Microsoft NT Server version 4.0
01 NT Workstation
01 64 Meg SDRAM
01 512 Pipeline Burst Cache
01 5.1 Gig Hard Drive
01 2meg PCI Video Card /3 Com 100 mb PCI Combo Network Card
01 233mhz Processor with High end CPU Fan /24x CDROM
01 1.44 Floppy Disk Drive / Internal Zip Drive / 56k Modem
01 Mini Tower with 230 Watt Power Supply / Microsoft Moust
01 104 Enhanced Keyboard / 17" SVGA PnP Monitor
01 Microsoft NT Workstation 4.0
Annexed and made a part of a Lease Agreement dated: 11/18/97 entered into
between RX Technology, Inc. as Lessee and Lease Managers International, Inc. as
lessor.
/s/ Donald Rex Gay
- ----------------------
Donald R. Gay
<PAGE>
TO WHOM IT MAY CONCERN:
This letter acknowledges that RX Technology, Inc. ("Lessee") agrees to commence
remitting rental payments on Lease #9701015 dated by the Lessee on 12/16/97
("Lease") although all equipment subject to such Lease may not yet be delivered,
installed or accepted. Lessee also authorizes payment of $8659.00 to a vendor
or vendors, in order to complete delivery of equipment under said Lease. Should
any item of equipment not be delivered, installed or accepted, Lessee agrees
that it alone will be responsible and shall have recourse only to the
appropriate vendor. Lessee, by execution of the Certificate of Acceptance and
this letter, irrevocably and unconditionally accepts and acknowledges said Lease
and agrees it to be in full force and effect and not subject to any defenses or
rights of setoff of Lessee.
Non-delivery of any item of equipment shall not revoke Lessee of it's
unconditional obligation to make payment in full under the terms of said Lease.
This letter shall become an addendum to end part of said Lease upon its
execution by Lessee and Acceptance by Lessor.
Sincerely,
RX Technology, Inc.
- --------------------------------
(Lessee)
By: /s/ Donald Rex Gay
-----------------------------
Title: President Date: 12/17/97
------------------ -----------
Guarantor's Acknowledgement
The undersigned guarantor acknowledges and consents to the terms and conditions
of this Addendum and acknowledges that the undersigned's guaranty of the
obligations evidenced by the Lease and this Addendum remain in full force and
effect.
/s/ Donald Rex Gay 12-17-97
- -------------------------------- ----------------------
Guarantor: Date
D-34.2
94
<PAGE>
TO WHOM IT MAY CONCERN:
This letter acknowledges that RX Technology, Inc. ("Lessee") agrees to commence
remitting rental payments on Lease #9701015 dated by the Lessee on 12/16/97
("Lease") although all equipment subject to such Lease may not yet be delivered,
installed or accepted. Lessee also authorizes payment of $22,223.31 to a vendor
or vendors, in order to complete delivery of equipment under said Lease. Should
any item of equipment not be delivered, installed or accepted, Lessee agrees
that it alone will be responsible and shall have recourse only to the
appropriate vendor. Lessee, by execution of the Certificate of Acceptance and
this letter, irrevocably and unconditionally accepts and acknowledges said Lease
and agrees it to be in full force and effect and not subject to any defenses or
rights of setoff of Lessee.
Non-delivery of any item of equipment shall not revoke Lessee of it's
unconditional obligation to make payment in full under the terms of said Lease.
This letter shall become an addendum to end part of said Lease upon its
execution by Lessee and Acceptance by Lessor.
Sincerely,
RX Technology, Inc.
- --------------------------------
(Lessee)
By: /s/ Donald Rex Gay
-----------------------------
Title: President Date: 12/17/97
------------------ -----------
Guarantor's Acknowledgement
The undersigned guarantor acknowledges and consents to the terms and conditions
of this Addendum and acknowledges that the undersigned's guaranty of the
obligations evidenced by the Lease and this Addendum remain in full force and
effect.
/s/ Donald Rex Gay 12-17-97
- -------------------------------- ----------------------
Guarantor: Date
D-34.2
94
<PAGE>
EXHIBIT 10.34
LEASE WITH G.E. CAPITAL TRANS LEASING
Acct. #8249428-001
<PAGE>
[LMI LOGO] LEASE MANAGERS Equipment Lease Agreement
International 177771 LEASE #:___________ Page 1 of 5
Funded & Administered by Trans Leasing
- --------------------------------------------------------------------------------
Lessee: Supplier:
RX Technology Sony Electronics
3220 N. Turnbull Drive Post Office Box 99561
Metairie, LA 70002 Chicago, IL 60693
Contact: Rex
Tel: 504-887-9412 Fax: 504-887-9815 KEN WOLFSON 800-327-9573
- --------------------------------------------------------------------------------
Equipment Schedule (Use a separate Schedule if Needed):
See Schedule "A"
- --------------------------------------------------------------------------------
Equipment Location (if different than above address):
SAME 60 X 1,001.20 = $60,072.00
Schedule of Rental Payments:
Term of Lease Total Number Amount of
(In Months) of Rental Payments Each payment Lessee's Deposit
60 60 $1,001.20 $2,002.39
Plus Applicable Taxes Includes Taxes
- --------------------------------------------------------------------------------
*Lessee's deposit to be applied to: |X|FIRST MONTH |_| SECURITY DEPOSIT
|X| LAST MONTH
- --------------------------------------------------------------------------------
THIS LEASE, THE TERMS OF WHICH HAVE BEEN FREELY NEGOTIATED BY EACH PARTY, IS
SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE WHICH ARE MADE A PART
HEREOF AND WHICH LESSEE AND LESSOR ACNOWLEDGE THAT THEY HAVE READ AND ACCEPTED.
- --------------------------------------------------------------------------------
THIS IS A NON-CANCELABLE/IRREVOCABLE LEASE. THIS LEASE CANNOT BE CANCELED OR
TERMINATED
Lessor: Trans-Leasing International, Inc. Signature /s/ Donald Rex Gay
-------------------------
By: /s/ M. Alger Donald R. Gay
-------------------------
Title: Admin Lessee Name: RX Technology
---------------------- ------------------------
Accepted On: 7/9/97 Title:
----------------- -----------------
Guaranty:
In the guaranty, I means the person making the guaranty, and you means the
Lessor indicated above. I guaranty that the Lessee will make all payments and
pay all other charges required under the lease agreement when they are due and
will perform all other obligations under the lease agreement fully and
promptly. I also agree that you may make other arrangements with the Lessee and
I will still be responsible for those payments and other obligations. You do not
have to notify me if the Lessee is in default under the lease agreement. If
Lessee defaults, I will immediately pay in accordance with the default
provisions of the lease agreement all sums due under the original terms of the
lease agreement and will perform all other obligations of Lessee under the lease
agreement. I will reimburse you for all the expenses you incur in enforcing any
of your rights against the Lessee or me, including attorney's fees. If this is a
corporate guaranty, it is authorized by the Board of Directors of the
guaranteeing corporation.
Lease Number
Guarantor Name: Donald R. Gay Signature /s/ Donald Rex Gay
--------------------------
(individual Name Only - Do not title)
Guarantor Name: Signature /s/ Donald Rex Gay
----------------------------
(individual Name Only - Do not title)
Acceptance Notice and Equipment Disclaimer and Agreement
Gentleman: This will advise that I am aware of my obligations with reference to
the above lease and that I agree to enforce in my own name all warranties,
agreements, or representations, if any, which may be made by the supplier to me.
I agree that Trans Leasing International makes no expressed or implied
warranties as to any matter whatsoever, including, without limitation the
condition of the equipment, its merchantability or its fitness for any
particular purpose. No defect or unfitness of equipment shall release me of the
obligation to pay rental payments or of any other obligations under this lease
agreement. All the items referred to above were received by us and were and are
in good order and condition acceptable to use. The decals, labels, etc., if
required and supplied have been affixed to the above items. We approve payment
by you to the supplier. Lessee hereby certifies that the Lessor has fully and
satisfactorily performed all covenants and conditions to be performed by it
under said lease agreement. Lessee acknowledges that it has read the terms and
conditions printed above and on the reverse side which are made a part hereof.
Lease Number: Lessee: RX Technology
Title President Signature /s/ Donald Rex Gay Date______________
------------------------
Donald R. Gay
<PAGE>
Lease Managers International
$1.00 PURCHASE OPTION LETTER
Lease #:
Dear: Donald R. Gay
Regarding your equipment lease contract, please be advised you have a $1.00
buy-out option at the conclusion of the lease period as long as you have met all
the terms and conditions of this lease contract.
Thank you for the opportunity of letting Lease Managers International service
your leasing requirements. If you wish any additional leasing, please feel free
to contact us at your convenience.
Sincerely,
Lease Managers International
By: /s/ Donald Rex Gay 6/18/97 By: ___________________________
Donald R. Gay Trans Leasing International
By: __________________
<PAGE>
TERMS AND CONDITIONS OF LEASE
Page 2 of 5 attached hereto and made a part of equipment lease agreement
number:
- --------------------------------------------------------------------------------
1. Definitions: The words "you" and "your" refer to the LESSEE as shown on page
1. The words "we", "us" and "our" refer to the LESSOR as shown on page 1.
2. Lease: We agree to lease to you, and you agree to lease from us the
equipment, products and/or services for the term shown on the Equipment Schedule
on the page 1 and made a part hereof. This lease shall not commence until we
accept and sign the lease. Thereafter, the lease shall continue for the full
term shown on the page 1.
3. Rentals: You promise to pay us the lease payments according to the Schedule
of Rental Payments shown on the reverse side. The obligation to make payments
begins when the equipment is delivered to you.
4. Lessee's Deposit: At our option, we may require you to pay a Security Deposit
and/or Rental Payments in advance for rent due hereunder. Except in the case
that we elect not to enter into this Lease due to your lack of creditworthiness
or as otherwise provided herein, such Security Deposit and/or Rental Payments
are non-refundable. We may apply your Security Deposit made hereunder to cure
any default. If all of the conditions herein are fully complied with, the
Security Deposit shall be refunded to you within 30 days after the return of the
equipment to us at the termination of the original lease term or of any renewal
term. You understand that our acceptance of your deposit does not constitute
acceptance of this lease, which acceptance is evidenced only by our execution of
this lease in the space provided on the reverse side.
5. Warranties: LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION
WITH THIS AGREEMENT. We transfer to you for the terms of this Lease all
warranties, if any, made by the manufacturer or supplier to us. We are not
liable to you for any modification or recision of supplier or manufacturer
warranties. You agree to continue making payments to us under this Lease
regardless of any claims you may have against the supplier or manufacturer. No
salesman or agent of the supplier of the equipment is authorized to waive or
alter any term or condition of this Lease, and no representation as to the
equipment or any other matter by the supplier shall in any way affect your
obligations to perform hereunder, including the obligation to make rental
payments as set forth in this Lease.
6. Automatic Renewal: This Lease will automatically renew for successive ninety
(90) day terms unless you send us written notice that you don't want to renew at
least ninety (90) days before the end of any term. We may cancel the automatic
renewal terms by sending you written notice that we don't want this lease to
renew, at least fifteen (15) days before the end of any term.
7. Liability: We are not responsible for any losses or injuries caused by the
installation or use of the equipment. You agree to reimburse us for and to
defend us against any claims for losses or injuries caused by equipment.
8. Finance Lease: You agree that if Article 2A-Leases of the Uniform Commercial
Code is deemed to apply to this Lease, this Lease will be considered a finance
lease as that term is defined in Article 2A. To the extent permitted by
applicable law, you hereby waive any and all rights and remedies conferred upon
a Lessee by Article 2A of the Code.
9. Location of Equipment: You will keep and use the equipment only at your
address shown on the reverse side. You agree that the equipment will not be
removed from that address unless you get our written permission in advance to
move it.
10. Maintenance and Installation: You are responsible for installing and keeping
the equipment in good working order. You are responsible for protecting the
equipment from damage except for ordinary wear and tear and from any other kind
of loss while you have the equipment. If the equipment is damaged or lost, you
agree to continue to pay rent.
11. Return of Equipment: At the end the Lease term, you will immediately return
the equipment to us in a condition as good as received less normal wear and tear
to any place in the United States we designate. You will prepay all expenses of
crating and shipping by means we designate and you will properly insure the
shipment. You also agree to pay us an administration fee for processing the
return of the equipment.
12. Insurance: You agree to keep the equipment fully insured against loss until
this Lease is paid in full and to have us named as loss payee. You also agree to
obtain a general public liability insurance policy from anyone who is acceptable
to us and to include us as an insured on the policy. You agree to provide us
with certificates or other evidence of insurance acceptable to us, before this
lease term begins. If you do not provide us with acceptable evidence of
insurance, we may, but will not be required to, buy such insurance for you and
add a charge to your monthly payments which will include the premium cost, costs
associated with effecting the insurance and a carrying charge.
13. Taxes and Fees: You agree to pay when due or reimburse us for all taxes,
fees, fines, and penalties relating to use or ownership of the equipment or to
this agreement, now or hereafter imposed, levied or assessed by any federal,
state or local government or agency. You also agree to pay us upon demand an
administration fee for the handing or collecting of any such tax or fee. Upon
termination/expiration of this Lease, you agree to promptly remit 90% of the
previous year's personal property tax due with respect to the equipment subject
to this Lease plus any applicable taxes and fees as specified in a written
notice from us in order to satisfy the current year personal property tax which
has yet to be invoiced by the date of the termination/expiration.
14. Ownership of Equipment: We are the owner of the equipment and have title to
the equipment. You shall keep the equipment free from any and all liens and
encumbrances. You shall give us immediate notice of any attachment or other
judicial process, liens or encumbrances affecting the equipment and shall
indemnify and save us harmless from any loss or damage caused thereby.
Lease Number: Lessee: RX Technology
Title President Signature /s/ Donald Rex Gay Date 6/18/97
------------------------------
Donald R. Gay
<PAGE>
TERMS AND CONDITIONS OF LEASE
Page 3 of 5 attached hereto and made a part of equipment lease agreement
number:
- --------------------------------------------------------------------------------
15. Filing: You hereby authorize us to file this lease, any financing statements
or security agreements with respect to the equipment or any other collateral you
provide to us prior to or following our acceptance of this lease, in any state
in the United States. You further authorize us to file such lease, financing
statement or security agreement without your signature thereon. If your
signature on any financing statement is required by law, you shall execute such
supplemental instruments and financing statements if we deem such to be
necessary and advisable and shall otherwise cooperate to defend our title by
filing or otherwise. You also agree to pay us on demand any filing and releasing
fees prescribed by the Uniform Commercial Code or other law or, at our option, a
non-filing protection fee.
16. Default: If you do not pay rent when due or if you break any of your
promises under this Lease, you will be in default. If you default, we can
require that you pay the remaining balance of this Lease and return the
equipment to us. We can also use any of the remedies available to us under the
Uniform Commercial Code or any other law. If we refer this Lease to an attorney
for collection, you agree to pay our reasonable attorney's fees and actual
costs. If we have to take possession of the equipment, you agree to pay the cost
of repossession. You agree that we will not be responsible to pay you any
consequential or incidental damages for any default by us under this Lease.
17. Late Charge: If any part of a payment is late, you agree to pay a late
charge of 10% of the payment which is late. You agree to pay or reimburse all
costs of collections, including reasonable attorney's fees, incurred by us in
collecting your lease.
18. Assignment: YOU HAVE NO RIGHT TO SELL, TRANSFER, ASSIGN OR SUBLEASE THE
EQUIPMENT OR THIS LEASE. We may sell, assign, or transfer this Lease. You agree
that if we sell, assign, or transfer this Lease, the new owner will have the
same rights and benefits that we have now and will not have to perform any of
our obligations. You agree that the rights of the new owner will not be subject
to any claims, defenses, or set off that you may have against us.
19. Right of Inspection: The lessor, it's agents, dealers, and representatives,
shall have the right at any time during regular business hours to inspect the
equipment and for that purpose to have access to the location of the equipment
20. Risk of Loss: You hereby assume and shall bear the entire risk of loss,
theft damage and destruction of the equipment from any cause whatsoever and no
loss, theft, damage or destruction of equipment shall relieve you of the
obligation to pay rent or any obligation of this lease, and this lease shall
remain in full force and effect. You shall promptly notify us in writing of such
loss, theft, damage or destruction of the equipment. In the event of damage of
any kind whatever to any item of equipment, you, at our option, shall at your
expense (a) place the item in good repair, condition or working order, or (b)
replace the same with like equipment of the same or later model in good repair,
condition and working order.
21. Financial Information: During the term of this lease and any renewal hereof,
you agree to provide us with all financial statements and copies of federal or
state tax returns as we may reasonably request, and permit us to obtain credit
reports, and make other credit inquiries on you, as we deem necessary. If we
supply you with labels, you shall label any and all items of equipment and shall
keep the same affixed in a prominent place. Labels shall bear the legend
"Property of Trans Leasing International, Lessor".
22. Severability: If any provision hereof or any remedy herein provided is found
to be invalid under any applicable law, such provision shall be inapplicable and
deemed omitted, but the remaining provisions hereof, including remaining default
remedies, shall be given effect in accordance with the manifest intent hereof.
23. Other Rights: You agree that any delay or failure to enforce our rights
under this Lease does not prevent us from enforcing any rights at a later time.
24. Miscellaneous: You agree that the terms and conditions indicated above are a
complete and exclusive statement of our agreement and they may be modified only
by written agreement signed by all of the parties hereto and not by course of
performance. You agree that the equipment will not be used for personal, family
or household purposes. You agree that the original of this Lease may be
microfilmed or electronically duplicated and a photo static copy of such
microfilm or electronic duplicate. You agree that facsimile copies of any
documents received and verified by Lessor shall be acceptable to all parties in
lieu of the original documents and shall have the full force and effect as any
original documents received thereafter, and that the original or such facsimile
of any document may be microfilmed or electronically duplicated, and photostatic
copy of such microfilm or electronic duplication may be introduced in lieu of
the original or such facsimile copy thereof and without further foundation. The
parties hereto expressly waive the secondary evidence rule. You acknowledge
receipt of a copy of this lease. You agree that this lease will be binding upon
your heirs, successors or legal representatives. You agree that our waiver of
any provision hereunder shall not constitute a waiver of any other matter.
25. Governing Law: THIS AGREEMENT IS PERFORMABLE IN THE STATE OF ILLINOIS AND
SHALL BE GOVERNED BY AND SUBJECT TO THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS
OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF ILLINOIS. LESSOR AND LESSEE
CONSENT TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN
THE STATE OF ILLINOIS, AND WAIVE ANY OBJECTION RELATING TO IMPROPER VENUE OR
FORUM NON CONVENIENT TO THE CONDUCT AND PROCEEDING IN ANY SUCH COURT. AT
LESSOR'S SOLE ELECTION AND DETERMINATION, ANY LEGAL, EQUITABLE, OR ARBITRATION
ACTION MAY ALSO BE BROUGHT IN ANY OTHER COURT OF COMPETENT JURISDICTION IN ANY
STATE IN WHICH LESSOR HAS AN OFFICE AND LESSEE WAIVES ANY OBJECTION RELATING TO
IMPROPER VENUE OR FORUM NON CONVENIENT TO THE CONDUCT OF ANY PROCEEDING IN ANY
SUCH COURT. LESSEE, ANY GUARANTOR AND LESSOR EXPRESSLY WAIVE ANY RIGHT TO A
TRIAL BY JURY SO THAT TRIAL SHALL BE BY AND ONLY TO THE COURT.
Lease Number: Lessee: RX Technology
Title President Signature /s/ Donald Rex Gay Date 6/18/97
------------------------------
Donald R. Gay
<PAGE>
INSURANCE VERIFICATION SHEET
Page 5 of 5 attached hereto and made a part of equipment lease agreement
number:
- --------------------------------------------------------------------------------
INSURANCE AGENT: INSURANCE UNDERWRITERS LIMITED
2610 EDENBORN AVE o P.O. BOX 6738
METAIRIE, LA 70009-6738
(Please provide name and address of agent above)
INSURANCE AGENT TELEPHONE NUMBER: (504) 883-2500
ATTENTION: STANLEY CHIOCCHIO EXT 166 OR VIRGINIA BABER EXT 317
LESSEE INFORMATION: RX Technology
3220 N. Turnbull Drive
Metairie, LA 70002
CCOPA58573
POLICY NUMBER: 3AN0196 EXPIRATION DATE: 8/16/97
This equipment is located at: 3220 N. Turnbull Drive
Metairie , LA 70002
- --------------------------------------------------------------------------------
Loss Payee: Trans Leasing - 3000 Dundee Road - Northbrook, IL 60062
This is a net lease and we are responsible for the insurance cost. Please see to
it that we have immediate coverage and notify Trans Leasing at once in the form
of a copy of the insurance policy or a Certificate of Insurance.
If the latter is sent, please include the standard 30 day notice of cancellation
clause.
Thank you,
By: /s/ Donald Rex Gay Title: President
------------------------- ---------------------------
Donald R. Gay
<PAGE>
[GE LOGO] GE Capital
Trans Leasing
- --------------------------------------------------------------------------------
General Electric Capital Corporation
570 Lake Cook Road, Suite 200, Deerfield IL 60015
800 323-1180
June 30, 1999
Mr. Donald R. Gay
RX Technology
P.O. Box 9112
Mandeville, LA 70470-9112
Dear Mr. Gay,
We're changing to better meet your needs. GE Capital Trans Leasing is about to
complete a computer system upgrade to enhance the way we do business with you.
Some of the benefits you will enjoy include:
o Improved Answer Time. Your time is valuable and we'll make sure your call
gets answered promptly.
o New Interactive Voice Response telephone system to expedite call
processing.
o Consolidated Billing Option, providing you with the ability to bring all
your leases together in one easy to read format. Call to learn more about
the benefits of consolidated billing.
Effective immediately, you will begin to see some changes, including:
o Your existing account number 249428-177771 will change to 8249428-001.
Please reference your new account number when making payments or when you
have questions.
o Your Customer Service Phone Number will remain the same. The hours of
operations, however, have been expanded to 7:00 a.m. to 6:00 p.m. CST to
better meet your needs. Please update your records accordingly.
o A new invoice format that provides you with greater detail to help you
manage your equipment financing through GE Capital Trans Leasing more
effectively. Separate statements will no longer be issued, any outstanding
dollar amounts will now be reflected on one invoice.
o Coupon Customers Only- The new invoice format will replace your coupon
book. Please discard your coupon book immediately as continued use of the
coupon books after the effective date will delay the crediting of your
payments. Payments should be mailed to GE Capital Trans Leasing, 75
Remittance Drive, Suite 1523, Chicago IL 60675-1523. Please note the change
in suite number from 1540 to 1523.
Please update your records with your new account number and the extended
Customer Service hours. If you have any questions regarding any of these
changes, please feel free to contact us at 1-800-937-9377.
GE Capital Trans Leasing appreciates your continued business. We look forward to
meeting your equipment financing needs today and in the future.
Sincerely,
/s/ Bill Artino
- -------------------------------
Bill Artino
Vice President, General Manager
<PAGE>
INSURANCE VERIFICATION SHEET
Page 5 of 5 attached hereto and made a part of equipment lease agreement
number:
- --------------------------------------------------------------------------------
INSURANCE AGENT: INSURANCE UNDERWRITERS LIMITED
2610 EDENBORN AVE P.O. BOX 6738
MATAIRIE, LA 70009-6738
(Please provide name and address of agent above)
INSURANCE AGENT TELEPHONE NUMBER: (504) 883-2500
ATTENTION: STANLEY CHIOCCHIO EXT 166 OR VIRGINIA BABER EXT 317
LESSEE INFORMATION: RX Technology
3220 N. Turnbull Drive
Metairie, LA 70002
CCOPA58573
POLICY NUMBER: 3AN0196 EXPIRATION DATE: 8/16/97
This equipment is located at: 3220 N. Turnbull Drive
Metairie, LA 70002
- --------------------------------------------------------------------------------
Loss Payee: Trans Leasing - 3000 Dundee Road - Northbrook, IL 60062
This is a net lease and we are responsible for the insurance cost. Please see to
it that we have immediate coverage and notify Trans Leasing at once in the form
of a copy of the insurance policy or a Certificate of Insurance.
If the latter is sent, please include the standard 30 day notice of cancellation
clause.
Thank you,
By: /s/ Donald Rex Gay Title: President
------------------------- ---------------------------
Donald R. Gay
<PAGE>
Lease Managers International
$1.00 PURCHASE OPTION LETTER
Lease #:
Dear: Donald R. Gay
Regarding your equipment lease contract, please be advised you have a $1.00
buy-out option at the conclusion of the lease period as long as you have met all
the terms and conditions of this lease contract.
Thank you for the opportunity of letting Lease Managers International service
your leasing requirements. If you wish any additional leasing, please feel free
to contact us at your convenience.
Sincerely,
Lease Managers International
By: /s/ Donald Rex Gay 6/18/97 By: ___________________________
Donald R. Gay Trans Leasing International
By: __________________
<PAGE>
[LMI LOGO] LEASE MANAGERS Equipment Lease Agreement
International 177771 LEASE #:___________ Page 1 of 5
Funded & Administered by Trans Leasing
- --------------------------------------------------------------------------------
Lessee: Supplier:
RX Technology Sony Electronics
3220 N. Turnbull Drive Post Office Box 99561
Metaire, LA 70002 Chicago, IL 60693
Contact: Rex
Tel: 504-887-9412 Fax: 504-887-9815 KEN WOLFSON 800-327-9573
- --------------------------------------------------------------------------------
Equipment Schedule (Use a separate Schedule if Needed):
See Schedule `A'
- --------------------------------------------------------------------------------
Equipment Location (if different than above address):
SAME 60 X 1,001.20 = $60,072.00
Schedule of Rental Payments:
Term of Lease Total Number Amount of
(In Months) of Rental Payments Each payment Lessee's Deposit
60 60 $1,001.20 $2,032.39
Plus Applicable Taxes Includes Taxes
- --------------------------------------------------------------------------------
*Lessee's deposit to be applied to: |X|FIRST MONTH |_| SECURITY DEPOSIT
|X| LAST MONTH
- --------------------------------------------------------------------------------
THIS LEASE, THE TERMS OF WHICH HAVE BEEN FREELY NEGOTIATED BY EACH PARTY, IS
SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE WHICH ARE MADE A PART
HEREOF AND WHICH LESSEE AND LESSOR AKNOWLEDGE THAT THEY HAVE READ AND ACCEPTED.
- --------------------------------------------------------------------------------
THIS IS A NON-CANCELABLE/IRREVOCABLE LEASE. THIS LEASE CANNOT BE CANCELED OR
TERMINATED
Lessor: Trans-Leasing International, Inc. Signature /s/ Donald Rex Gay
-------------------------
By: /s/ M. Alger Donald R. Gay
-------------------------
Title: Admin Lessee Name: RX Technology
---------------------- ------------------------
Accepted On: 7/9/97 Title:
----------------- -----------------
Guaranty:
In the guaranty, I means the person making the guaranty, and you means the
Lessor indicated above. I guaranty that the Lessee will make all payments and
pay all other charges required under the lease agreement when they are due and
will perform all other obligations under the lease agreement fully and
promptly. I also agree that you may make other arrangements with the Lessee and
I will still be responsible for those payments and other obligations. You do not
have to notify me if the Lessee is in default under the lease agreement. If
Lessee defaults, I will immediately pay in accordance with the default
provisions of the lease agreement all sums due under the original terms of the
lease agreement and will perform all other obligations of Lessee under the lease
agreement. I will reimburse you for all the expenses you incur in enforcing any
of your rights against The Lessee or me, including attorney's fees. If this is a
corporate guaranty, it is authorized by the Board 0f Directors of the
guaranteeing corporation.
Lease Number
Guarantor Name: Donald R. Gay Signature /s/ Donald Rex Gay
--------------------------
(individual Name Only - Do not title)
Guarantor Name: Signature /s/ Donald Rex Gay
----------------------------
(individual Name Only - Do not title)
Acceptance Notice and Equipment Disclaimer and Agreement
Gentleman: This will advise that I am aware of my obligations with
reference to the above lease and that I agree to enforce in my own name all
warranties, agreements, or representations, if any, which may be made by the
supplier to me. I agree that Trans Leasing International makes no expressed or
implied warranties as to any matter whatsoever, including, without limitation
the condition of the equipment, its merchantability or its fitness for any
particular purpose. No defect or unfitness of equipment shall release me of the
obligation to pay rental payments or of any other obligations under this lease
agreement. All the items referred to above were received by us and were and are
in good order and condition acceptable to use. The decals, labels, etc., if
required and supplied have been affixed to the above items. We approve payment
by you to the supplier. Lessee hereby certifies that the Lessor has fully and
satisfactorily performed all covenants and conditions to be performed by it
under said lease agreement. Lessee acknowledges that it has read the terms and
conditions printed above and on the reverse side which are made a part hereof.
Lease Number: Lessee: RX Technology
Title President Signature /s/ Donald Rex Gay Date______________
------------------------
Donald R. Gay
<PAGE>
TERMS AND CONDITIONS OF LEASE
Page 2 of 5 attached hereto and made a part of equipment lease agreement
number:
- --------------------------------------------------------------------------------
1. Definitions: The words "you" and "your" refer to the LESSEE as shown on page
1. The words "we", "us" and "our" refer to the LESSOR as shown on page 1.
2. Lease: We agree to lease to you, and you agree to lease from us the
equipment, products and/or services for the term shown on the Equipment Schedule
on the page 1 and made a part hereof. This lease shall not commence until we
accept and sign the lease. Thereafter, the lease shall continue for the full
term shown on the page 1.
3. Rentals: You promise to pay us the lease payments according to the Schedule
of Rental Payments shown on the reverse side. The obligation to make payments
begins when the equipment is delivered to you.
4. Lessee's Deposit: At our option, we may require you to pay a Security Deposit
and/or Rental Payments in advance for rent due hereunder. Except in the case
that we elect not to enter into this Lease due to your lack of creditworthiness
or as otherwise provided herein, such Security Deposit and/or Rental Payments
are non-refundable. We may apply your Security Deposit made hereunder to cure
any default. If all of the conditions herein are fully complied with, the
Security Deposit shall be refunded to you within 30 days after the return of the
equipment to us at the termination of the original lease term or of any renewal
term. You understand that our acceptance of your deposit does not constitute
acceptance of this lease, which acceptance is evidenced only by our execution of
this lease in the space provided on the reverse side.
5. Warranties: LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION
WITH THIS AGREEMENT. We transfer to you for the terms of this Lease all
warranties, if any, made by the manufacturer or supplier to us. We are not
liable to you for any modification or recision of supplier or manufacturer
warranties. You agree to continue making payments to us under this Lease
regardless of any claims you may have against the supplier or manufacturer. No
salesman or agent of the supplier of the equipment is authorized to waive or
alter any term or condition of this Lease, and no representation as to the
equipment or any other matter by the supplier shall in any way affect your
obligations to perform hereunder, including the obligation to make rental
payments as set forth in this Lease.
6. Automatic Renewal: This Lease will automatically renew for successive ninety
(90) day terms unless you send us written notice that you don't want to renew at
least ninety (90) days before the end of any term. We may cancel the automatic
renewal terms by sending you written notice that we don't want this lease to
renew, at least fifteen (15) days before the end of any term.
7. Liability: We are not responsible for any losses or injuries caused by the
installation or use of the equipment. You agree to reimburse us for and to
defend us against any claims for losses or injuries caused by equipment.
8. Finance Lease: You agree that if Article 2A-Leases of the Uniform Commercial
Code is deemed to apply to this Lease, this Lease will be considered a finance
lease as that term is defined in Article 2A. To the extent permitted by
applicable law, you hereby waive any and all rights and remedies conferred upon
a Lessee by Article 2A of the Code.
9. Location of Equipment: You will keep and use the equipment only at your
address shown on the reverse side. You agree that the equipment will not be
removed from that address unless you get our written permission in advance to
move it.
10. Maintenance and Installation: You are responsible for installing and keeping
the equipment in good working order. You are responsible for protecting the
equipment from damage except for ordinary wear and tear and from any other kind
of loss while you have the equipment. If the equipment is damaged or lost, you
agree to continue to pay rent.
11. Return of Equipment: At the end the Lease term, you will immediately return
the equipment to us in a condition as good as received less normal wear and tear
to any place in the United States we designate. You will prepay all expenses of
crating and shipping by means we designate and you will properly insure the
shipment. You also agree to pay us an administration fee for processing the
return of the equipment.
12. Insurance: You agree to keep the equipment fully insured against loss until
this Lease is paid in full and to have us named as loss payee. You also agree to
obtain a general public liability insurance policy from anyone who is acceptable
to us and to include us as an insured on the policy. You agree to provide us
with certificates or other evidence of insurance acceptable to us, before this
lease term begins. If you do not provide us with acceptable evidence of
insurance, we may, but will not be required to, buy such insurance for you and
add a charge to your monthly payments which will include the premium cost, costs
associated with effecting the insurance and a carrying charge.
13. Taxes and Fees: You agree to pay when due or reimburse us for all taxes,
fees, fines, and penalties relating to use or ownership of the equipment or to
this agreement, now or hereafter imposed, levied or assessed by any federal,
state or local government or agency. You also agree to pay us upon demand an
administration fee for the handing or collecting of any such tax or fee. Upon
termination/expiration of this Lease, you agree to promptly remit 90% of the
previous year's personal property tax due with respect to the equipment subject
to this Lease plus any applicable taxes and fees as specified in a written
notice from us in order to satisfy the current year personal property tax which
has yet to be invoiced by the date of the termination/expiration.
14. Ownership of Equipment: We are the owner of the equipment and have title to
the equipment. You shall keep the equipment free from any and ail liens and
encumbrances. You shall give us immediate notice of any attachment or other
judicial process, liens or encumbrances affecting the equipment and shall
indemnify and save us harmless from any loss or damage caused thereby.
Lease Number: Lessee: RX Technology
Title President Signature /s/ Donald Rex Gay Date 6/18/97
------------------------------
Donald R. Gay
<PAGE>
TERMS AND CONDITIONS OF LEASE
Page 3 of 5 attached hereto and made a part of equipment lease agreement
number:
- --------------------------------------------------------------------------------
15. Filing. You hereby authorize us to file this lease, any financing statements
or security agreements with respect to the equipment or any other collateral you
provide to us prior to or following our acceptance of this lease, in any state
in the United States. You further authorize us to file such lease, financing
statement or security agreement without your signature thereon. If your
signature on any financing statement is required by law, you shall execute such
supplemental instruments and financing statements if we deem such to be
necessary and advisable and shall otherwise cooperate to defend our title by
filing or otherwise. You also agree to pay us on demand any filing and releasing
fees prescribed by the Uniform Commercial Code or other law or, at our option, a
non-filing protection fee.
16. Default: If you do not pay rent when due or if you break any of your
promises under this Lease, you will be in default. If you default, we can
require that you pay the remaining balance of this Lease and return the
equipment to us. We can also use any of the remedies available to us under the
Uniform Commercial Code or any other law. If we refer this Lease to an attorney
for collection, you agree to pay our reasonable attorney's fees and actual
costs. If we have to take possession of the equipment, you agree to pay the cost
of repossession. You agree that we will not be responsible to pay you any
consequential or incidental damages for any default by us under this Lease.
17. Late Charge: If any part of a payment is late, you agree to pay a late
charge of 10% of the payment which is late. You agree to pay or reimburse all
costs of collections, including reasonable attorney's fees, incurred by us in
collecting your lease.
18. Assignment: YOU HAVE NO RIGHT TO SELL, TRANSFER, ASSIGN OR SUBLEASE THE
EQUIPMENT OR THIS LEASE. We may sell, assign, or transfer this Lease. You agree
that if we sell, assign, or transfer this Lease, the new owner will have the
same rights and benefits that we have now and will not have to perform any of
our obligations. You agree that the rights of the new owner will not be subject
to any claims, defenses, or set off that you may have against us.
19. Right of Inspection: The lessor, it's agents, dealers, and representatives,
shall have the right at any time during regular business hours to inspect the
equipment and for that purpose to have access to the location of the equipment
20. Risk of Loss: You hereby assume and shall bear the entire risk of loss,
theft damage and destruction of the equipment from any cause whatsoever and no
loss, theft, damage or destruction of equipment shall relieve you of the
obligation to pay rent or any obligation of this lease, and this lease shall
remain in full force and effect. You shall promptly notify us in writing of such
loss, theft, carnage or destruction of the equipment. In the event of damage of
any kind whatever to any item of equipment, you, at our option, shall at your
expense (a) place the item in good repair, condition or working order, or (b)
replace the same with like equipment of the same or later model in good repair,
condition and working order.
21. Financial Information: During the term of this lease and any renewal hereof,
you agree to provide us with all financial statements and copies of federal or
state tax returns as we may reasonably request, and permit us to obtain credit
reports, and make other credit inquiries on you, as we deem necessary. If we
supply you with labels, you shall label any and all items of equipment and shall
keep the same affixed in a prominent place. Labels shall bear the legend
"Property of Trans Leasing International, Lessor"
22. Severability: If any provision hereof or any remedy herein provided is found
to be invalid under any applicable law, such provision shall be inapplicable and
deemed omitted, but the remaining provisions hereof, including remaining default
remedies, shall be given effect in accordance with the manifest intent hereof.
23. Other Rights: You agree that any delay or failure to enforce our rights
under this Lease does not prevent us from enforcing any rights at a later time.
24. Miscellaneous: You agree that the terms and conditions indicated above are a
complete and exclusive statement of our agreement and they may be modified only
by written agreement signed by all of the parties hereto and not by course of
performance. You agree that the equipment will not be used for personal, family
or household purposes. You agree that the original of this Lease may be
microfilmed or electronically duplicated and a photo static copy of such
microfilm or electronic duplicate. You agree that facsimile copies of any
documents received and verified by Lessor shall be acceptable to all parties in
lieu of the original documents and shall have the full force and effect as any
original documents received thereafter, and that the original or such facsimile
of any document may be microfilmed or electronically duplicated, and photostatic
copy of such microfilm or electronic duplication may be introduced in lieu of
the original or such facsimile copy thereof and without further foundation. The
parties hereto expressly waive the secondary evidence rule. You acknowledge
receipt of a copy of this lease. You agree that this lease will be binding upon
your heirs, successors or legal representatives. You agree that our waiver of
any provision hereunder shall not constitute a waiver of any other matter.
25. Governing Law: THIS AGREEMENT IS PERFORMABLE IN THE STATE OF ILLINOIS AND
SHALL BE GOVERNED BY AND SUBJECT TO THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS
OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF ILLINOIS. LESSOR AND LESSEE
CONSENT TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN
THE STATE OF ILLINOIS, AND WAIVE ANY OBJECTION RELATING TO IMPROPER VENUE OR
FORUM NON CONVENIENT TO THE CONDUCT AND PROCEEDING IN ANY SUCH COURT. AT
LESSOR'S SOLE ELECTION AND DETERMINATION, ANY LEGAL, EQUITABLE, OR ARBITRATION
ACTION MAY ALSO BE BROUGHT IN ANY OTHER COURT OF COMPETENT JURISDICTION IN ANY
STATE IN WHICH LESSOR HAS AN OFFICE AND LESSEE WAIVES ANY OBJECTION RELATING TO
IMPROPER VENUE OR FORUM NON CONVENIENT TO THE CONDUCT OF ANY PROCEEDING IN ANY
SUCH COURT. LESSEE, ANY GUARANTOR AND LESSOR EXPRESSLY WAIVE ANY RIGHT TO A
TRIAL BY JURY SO THAT TRIAL SHALL BE BY AND ONLY TO THE COURT
Lease Number: Lessee: RX Technology
Title President Signature /s/ Donald Rex Gay Date 6/18/97
------------------------------
Donald R. Gay
<PAGE>
SCHEDULE "A"
Page 4 of 5 attached hereto and made a part of equipment lease agreement
number:
- --------------------------------------------------------------------------------
Qty Description
8 SONY UP5500 VEDO PRINTER
Annexed and made a part of a Lease Agreement dated: 6/10/97 entered into between
RX Technology as lessee and Trans Leasing International as Lessor.
/s/ Donald Rex Gay
- ----------------------- ----------------------------------
Donald R. Gay TRANS LEASING INTERNATIONAL
<PAGE>
6/10/97 [LEASE MANAGERS LOGO] LEASE MANAGERS
INTERNATIONAL
RX Technology
3220 N. Turnbull Drive
Metairie LA 70002
- --------------------------------------------------------------------------------
[Authorized Signature: Donald R. Gay
- --------------------------------------------------------------------------------
CONGRATULATIONS! YOUR LEASE IS APPROVED.
PLEASE COMPLETE YOUR ORDER BY FOLLOWING THESE SIMPLE INSTRUCTIONS:
1. If you do not have a plain paper fax machine please make photocopies of all
documents.
2. When signing please put your original signature on plain paper only!
3. Please sign, title, and date wherever a _/ appears, if you have any
questions please call.
***IMPORTANT! CHEQUE MUST BE WRITTEN FROM THE FOLLOWING BANK:
- --------------------------------------------------------------------------------
_/ PRINCIPAL BANK: Hibernia National Bank _/ ACCOUNT NUMBER 812356593
- --------------------------------------------------------------------------------
PAY TO DESCRIPTION AMOUNT
- --------------------------------------------------------------------------------
|X| LEASE MANAGERS First & Last Payment $2,002.39
- --------------------------------------------------------------------------------
|_|LEASE MANAGERS Acquisition Fee Waived
- --------------------------------------------------------------------------------
|X|LEASE MANAGERS Set Up Fees $125.00
- --------------------------------------------------------------------------------
4. In order to process your order we will need the following cheque to be
included with your paperwork please submit a company cheque in the amount
of: $2,127.39
5. After signing lease and writing cheque OVERNIGHT PAPERWORK TO US!!!!!
TO SHIP PAPERWORK:
Company: Lease Managers
Address: 24412 S. Main St. Suite 114
City: Carson State: CA Zip: 90745
Attention: Cust. Svc. Telephone: 800-327-9573
PLEASE SHIP PRIORITY OVERNIGHT!
<PAGE>
EXHIBIT 10.35
LEASE WITH G. E CAPITAL TRANS LEASING
Acct. #8247021-001
<PAGE>
[LETTERHEAD OF GENERAL ELECTRIC CAPITAL CORPORATION]
June 30, 1999
Mr. Donald R. Gay
RX Technology
P.O. Box 9112
Mandeville, LA 70470-9112
Dear Mr. Gay,
We're changing to better meet your needs. GE Capital Trans Leasing is about to
complete a computer system upgrade to enhance the way we do business with you.
Some of the benefits you will enjoy include:
o Improved Answer Time. Your time is valuable and we'll make sure your call
gets answered promptly.
o New Interactive Voice Response telephone system to expedite call
processing.
o Consolidated Billing Option, providing you with the ability to bring all
your leases together in one easy to read format. Call to learn more about
the benefits of consolidated billing.
Effective immediately, you will begin to see some changes, including:
o Your existing account number 247021 -176595 will change to 8247021-001.
Please reference your new account number when making payments or when you
have questions.
o Your Customer Service Phone Number will remain the same. The hours of
operations, however, have been expanded to 7:00 a.m. to 6:00 p.m. CST to
better meet your needs. Please update your records accordingly.
o A new invoice format that provides you with greater detail to help you
manage your equipment financing through GE Capital Trans Leasing more
effectively. Separate statements will no longer be issued, any outstanding
dollar amounts will now be reflected on one invoice.
o Coupon Customers Only- The new invoice format will replace your coupon
book. Please discard your coupon book immediately as continued use of the
coupon books after the effective date will delay the crediting of your
payments. Payments should be mailed to GE Capital Trans Leasing, 75
Remittance Drive, Suite 1523, Chicago IL 60675-1523. Please note the
change in suite number from 1540 to 1523.
Please update your records with your new account number and the extended
Customer Service hours. If you have any questions regarding any of these
changes, please feel free to contact us at 1-800-937-9377.
GE Capital Trans Leasing appreciates your continued business. We look forward to
meeting your equipment financing needs today and in the future.
Sincerely,
/s/ Bill Artino
Bill Artino
Vice President, General Manager
<PAGE>
[LETTERHEAD OF GENERAL ELECTRIC CAPITAL CORPORATION]
December 18, 1997
Donald Gay
RX Technology
P.O. Box 24700
New Orleans, LA 70184
Dear Donald,
On December 12, 1997, GE Capital Vendor Financial Services acquired the leasing
business of Trans Leasing International. The combined resources of these
industry leaders bring a wealth of experience and ingenuity to the leasing
marketplace.
I'd like to take this opportunity to introduce and welcome you to our new
business, GE Capital Trans Leasing, and explain what this new venture means for
you, our valued customer.
As the world's biggest equipment lessor, GE Capital understands the unique
financing requirements of your business. This comes from many years of providing
financing services in a number of targeted industry segments. We believe our
success is built upon the way we service the needs of our customers. We
understand that you have choices in the selection of a financing partner. Our
goal is to build long-term, lasting relationships with our customers. We are
fully dedicated to serving the needs of your business today...and in the future.
As part of building customer relationships, GE Capital has embarked upon a
comprehensive quality program. As a result, we have developed very focused
quality initiatives in areas that our customers have told us are important to
them -- credit and funding processing times, and customer service inquiry
response, follow-up, and resolution. We believe that programs like these set GE
Capital Trans Leasing apart from the competition, and more importantly, provide
you with a partner that can deliver a financing resource to help you meet your
business goals.
Thank you for your business over the past years. Our goal in 1998 is to raise
service to a new level, so that we are the only financial services provider you
think of when the need arises.
We are excited about our new business and welcome your thoughts on how GE
Capital Trans Leasing can serve you better.
Sincerely,
/s/ J.N. Gioia
J.N. Gioia
General Manager, GE Capital Trans Leasing
Please note that in addition to changing ownership, we've also changed our
headquarters location. The enclosed leaflet has our new address and telephone
numbers. Please retain for future reference.
<PAGE>
[LOGO] LEASE MANAGERS Equipment Lease Agreement
INTERNATIONAL -------------- ------------
Funded & Administered by Trans Leasing Lease #: Page 1 of 5
-------------- ------------
================================================================================
Lessee: Supplier:
RX Technology Sony Electronics
3220 N Turnbull Drive Post Office Box 99561
Mataine, LA 70002 Chicago IL 80693
Contact: Rex
KEN WOLFSON 800-327-9573
Tel: 504-887-3412 Fax: 504-887-9815
================================================================================
Equipment Schedule (Use a separate Schedule if Needed):
See Schedule 'A'
Equipment Location (if different than above address):
1,033.18 x 60 = 61,990.80
================================================================================
Schedule of Rental Payment:
- --------------------------------------------------------------------------------
Term of Lease (in Months) Total Number of Rental Payments
60 60
- --------------------------------------------------------------------------------
Amount of Each payment Lessee's Deposit
$1,033.18 $2,066.37
Plus Applicable Taxes Includes Taxes
- --------------------------------------------------------------------------------
*Lessee's deposit to be applied to: |X| FIRST MONTH |_|SECURITY DEPOSIT
|X| LAST MONTH
================================================================================
THIS LEASE, THE TERMS OF WHICH HAVE BEEN FREELY NEGOTIATED BY EACH PARTY, IS
SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE WHICH ARE MADE A PART
HEREOF AND WHICH LESSEE AND LESSOR ACKNOWLEDGE THAT THEY HAVE READ AND ACCEPTED.
================================================================================
THIS IS A NON-CANCELABLE/IRREVOCABLE LEASE. THIS LEASE CANNOT BE CANCELLED OR
TERMINATED
Lessor: Trans Leasing International, Inc. Signature /s/ Donald Rex Gay
------------------
Donald R. Gay
By: /s/ M. Algu Lessee Name: RX Technology
------------------------------------ --------------------
Title: Admin Title: President
--------------------------------- ----------------
Accepted on: 6/6/97
------------------------
Guaranty:
In the guaranty, I means the person making the guaranty, and you means the
Lessor indicated above. I guaranty that the Lessee will make all payments and
pay all other charges required under the lease agreement when they are due and
will perform all other obligations under the lease agreement fully and promptly.
I also agree that you may make other arrangements with the Lessee and I will
still be responsible for those payments and other obligations. You do not have
to notify me if the Lessee is in default under the lease agreement. If Lessee
defaults, I will immediately pay in accordance with the default provisions of
the lease agreement all sums due under the original terms of the lease agreement
and will perform all other obligations of Lessee under the lease agreement. I
will reimburse you for all the expenses you incur in enforcing any of your
rights against the Lessee or me, including attorney's fees. If this is a
corporate guaranty, it is authorized by the Board of Directors of the
guaranteeing corporation.
Lease Number
Guarantor Name: Donald R. Gay Signature /s/ Donald Rex Gay
-----------------------
(individual Name Only -
Do not title)
Guarantor Name: Signature /s/ Donald Rex Gay
-----------------------
(individual Name Only -
Do not title)
Acceptance Notice and Equipment Disclaimer and Agreement
Gentleman: This will advise that I am aware of my obligations with reverence to
the above lease and that I agree to enforce in my own name all warranties,
agreements, or representations, if any, which may be made by the supplier to me.
I agree that Trans leasing international makes no expressed or implied
warranties as to any matter whatsoever, including without limitation on the
condition of the equipment, its merchantability or its fitness for any
particular purpose. No defect or unfitness of equipment shall release me of the
obligation to pay rental payments or of any other obligations under this lease
agreement. All the items referred to above were received by us and were and are
in good order and condition acceptable to use. The decals, labels, etc., if
required and supplied have been affixed to the above items. We approve payment
by you to the supplier. Lessee hereby certifies that the Lessor has fully and
satisfactorily performed all covenants and conditions to be performed by it
under said lease agreement. Lessee acknowledges that it has read the terms and
conditions printed above and on the reverse side which are made a part hereof.
Lease Number: Lessee: RX Technology
Title: President Signature: /s/ Donald Rex Gay Date: 5-3-97
-------------- -------------------- -----------------
Donald R. Gay
<PAGE>
TERMS AND CONDITIONS OF LEASE
Page 2 of 5 attached hereto and made a part of equipment lease agreement number:
- --------------------------------------------------------------------------------
1. Definitions: The words "you" and "your" refer to the LESSEE as shown on page
1. The words "we", "us" and "our" refer to the LESSOR as shown on page 1.
2. Lease: We agree to lease to you, and you agree to lease from us the
equipment, products and/or services for the term shown on the Equipment Schedule
on the page 1 and made a part hereof. This lease shall not commence until we
accept and sign the lease. Thereafter, the lease shall continue for the full
term shown on the page 1.
3. Rentals: You promise to pay us the lease payments according to the Schedule
of Rental Payments shown on the reverse side. The obligation to make payments
begins when the equipment is delivered to you.
4. Lessee's Deposit: At our option, we may require you to pay a Security Deposit
and/or Rental Payments in advance for rent due hereunder. Except in the case
that we elect not to enter into this Lease due to your lack of creditworthiness
or as otherwise provided herein, such Security Deposit and/or Rental Payments
are non-refundable. We may apply your Security Deposit made hereunder to cure
any default. If all of the conditions herein are fully complied with, the
Security Deposit shall be refunded to you within 30 days after the return of the
equipment to us at the termination of the original lease term or of any renewal
term. You understand that our acceptance of your deposit does not constitute
acceptance of this lease, which acceptance is evidenced only by our execution of
this lease in the space provided on the reverse side.
5. Warranties: LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION
WITH THIS AGREEMENT. We transfer to you for the terms of this Lease all
warranties, if any, made by the manufacturer or supplier to us. We are not
liable to you for any modification or recision of supplier or manufacturer
warranties. You agree to continue making payments to us under this Lease
regardless of any claims you may have against the supplier or manufacturer. No
salesman or agent of the supplier of the equipment is authorized to waive or
after any term or condition of this Lease, and no representation as to the
equipment or any other matter by the supplier shall in any way affect your
obligations to perform hereunder, including the obligation to make rental
payments as set forth in this Lease.
6. Automatic Renewal: This Lease will automatically renew for successive ninety
(90) day terms unless you send us written notice that you don't want to renew at
lease ninety (90) days before the end of any term. We may cancel the automatic
renewal terms by sending you written notice that we don't want this lease to
renew, at least fifteen (15) days before the end of any term.
7. Liability: We are not responsible for any losses or injuries caused by the
installation or use of the equipment. You agree to reimburse us for and to
defend us against any claims for losses or injuries caused by equipment.
8. Finance Lease: You agree that if Article 2A-Leases of the Uniform Commercial
Code is deemed to apply to this Lease, this Lease will be considered a finance
lease as that term is defined in Article 2A. To the extent permitted by
applicable law, you hereby waive any and all rights and remedies conferred upon
a Lessee by Article 2A of the Code.
9. Location of Equipment: You will keep and use the equipment only at your
address shown on the reverse side. You agree that the equipment will not be
removed from that address unless you get our written permission in advance to
move it.
10. Maintenance and Installation: You are responsible for installing and keeping
the equipment in good working order. You are responsible for protecting the
equipment from damage except for ordinary wear and tear and from any other kind
of loss while you have the equipment. If the equipment is damaged or lost, you
agree to continue to pay rent.
11. Return of Equipment: At the end of the Lease term, you will immediately
return the equipment to us in a condition as good as received less normal wear
and tear to any place in the United States we designate. You will prepay all
expenses of crating and shipping by means we designate and you will properly
insure the shipment. You also agree to pay us an administration fee for
processing the return of the equipment.
12. Insurance: You agree to keep the equipment fully insured against loss until
this Lease is paid in full and to have us named as loss payee. You also agree to
obtain a general public liability insurance policy from anyone who is acceptable
to us and to include us as an insured on the policy. You agree to provide us
with certificates or other evidence of insurance acceptable to us, before this
lease term begins. If you do not provide us with acceptable evidence of
insurance, we may, but will not be required to, buy such insurance for you and
add a charge to your monthly payments which will include the premium cost, costs
associated with effecting the insurance and carrying charge.
13. Taxes and Fees: You agree to pay when due or reimburse us for all taxes,
fees, fines, and penalties relating to use or ownership of the equipment or to
this agreement, now or hereafter imposed, levied or assessed by any federal,
state or local government or agency. You also agree to pay us upon demand an
administration fee for the handling or collection of any such tax or fee. Upon
termination/expiration of this Lease, you agree to promptly remit 90% of the
previous year's personal property tax due with respect to the equipment subject
to this Lease plus any applicable taxes and fees as specified in a written
notice from us in order to satisfy the current year personal property tax which
has yet to be invoiced by the date of the termination/expiration.
14. Ownership of Equipment: We are the owner of the equipment and have title to
the equipment. You shall keep the equipment free from any and all liens and
encumbrances. You shall give us immediate notice of any attachment or other
judicial process, liens or encumbrances affecting the equipment and shall
indemnify an save us harmless from any loss or damage caused thereby.
Lease Number Lessee: RX Technology
Title: President Signature: /s/ Donald Rex Gay Date: 5-12-97
-------------- -------------------- -----------------
Donald R. Gay
<PAGE>
TERMS AND CONDITIONS OF LEASE
Page 3 of 5 attached hereto and made a part of equipment lease agreement number:
- --------------------------------------------------------------------------------
15. Filing: You hereby authorize us to file this lease, any financing
statements or security agreements with respect to the equipment or any other
collateral you provide to us prior to or following our acceptance of this lease,
in any state in the United States. You further authorize us to file such lease,
financing statement or security agreement without your signature thereon. If
your signature on any financing statement is required by law, you shall execute
such supplemental instruments and financing statements if we deem such to be
necessary and advisable and shall otherwise cooperate to defend our title by
filing or otherwise. You also agree to pay us on demand any filing and
releaseing fees prescribed by the Uniform Commercial Code or other law or, at
our option, a non-filing protection fee.
16. Default: if you do not pay rent when due or if you break an of your promises
under this Lease, you will be in default. If you default, we can require that
you pay the remaining balance of this Lease and return the equipment to us. We
can also use any of the remedies available to us under the Uniform Commercial
Code or any other law. If we refer this Lease to an attorney for collection, you
agree to pay our reasonable attorney's fees and actual costs. If we have to take
possession of the equipment, you agree to pay the cost of repossession. You
agree that we will not be responsible to pay you any consequential or incidental
damages for any default by us under this Lease.
17. Late Charge: If any part of a payment is late, you agree to pay a late
charge of 10% of the payment which is late. You agree to pay or reimburse all
costs of collections, including reasonable attorney's fees incurred by us in
collecting your lease.
18. Assignment: YOU HAVE NO RIGHT TO SELL, TRANSFER, ASSIGN OR SUBLEASE THE
EQUIPMENT OR THIS LEASE. We may sell, assign, or transfer this Lease. You agree
that if we sell, assign, or transfer this Lease, the new owner will have the
same rights and benefits that we have now and will not have to perform any of
our obligations. You agree that the rights of the new owner will not be subject
to any claims, defenses, or set off that you may have against us.
19. Right of Inspection: The lessor, it's agents, dealers, and representatives,
shall have the right at any time during regular business hours to inspect the
equipment and for that purpose to have access to the location of the equipment.
20. Risk of Loss: You hereby assume and shall bear the entire risk of loss,
theft damage and destruction of the equipment from any cause whatsoever and no
loss, theft, damage or destruction of equipment shall relieve you of the
obligation to pay rent or any obligation of this lease, and this lease shall
remain in full force and effect. You shall promptly notify us in writing of such
loss, theft, damage or destruction of the equipment. In the event of damage of
any kind whatever to any item of equipment, you, at our option, shall at your
expense (a) place the item in good repair, condition or working order, or (b)
replace the same with like equipment of the same or later model in good repair,
condition and working order.
21. Financial Information: During the term of this lease and any renewal hereof,
you agree to provide us with all financial statements and copies of federal or
state tax returns as we may reasonably request, and permit us to obtain credit
reports, and make other credit inquiries on you, as we deem necessary. If we
supply you with labels, you shall label any and all items of equipment and shall
keep the same affixed in a prominent place. Labels shall bear the legend
"Property of Trans Leasing International, Lessor".
22. Severability: If any provision hereof or any remedy herein provided is found
to be invalid under any applicable law, such provision shall be inapplicable and
deemed omitted, but the remaining provisions hereof, including remaining default
remedies, shall be given effect in accordance with the manifest intent hereof.
23. Other Rights: You agree that any delay or failure to enforce our rights
under this Lease does not prevent us from enforcing any rights at a later time.
24. Miscellaneous: You agree that the terms and conditions indicated above
are a complete and exclusive statement of our agreement and they may be modified
only by written agreement signed by all of the parties hereto and not by course
of performance. You agree that the equipment will not be used for personal,
family or household purposes. You agree that the original of this Lease may be
microfilmed or electronically duplicated and photo static copy of such microfilm
or electronic duplicate. You agree that facsimile copies of any documents
received and verified by Lessor shall be acceptable to all parties in lieu of
the original documents and shall have the full force and effect as any original
documents received thereafter, and that the original or such facsimile of any
document may be microfilmed of electronically duplicated, and photostatic copy
of such microfilm or electronic duplication may be introduced in lieu of the
original or such facsimile copy thereof and without further foundation. The
parties hereto expressly waive the secondary evidence rule. You acknowledge
receipt of a copy of this lease. You agree that this lease will be binding upon
you heirs, successors or legal representatives. You agree that our waiver of any
provision hereunder shall not constitute a waiver of any other matter.
25. Governing Law: THIS AGREEMENT IS PERFORMABLE IN THE STATE OF ILLINOIS AND
SHALL BE GOVERNED BY AND SUBJECT TO THE INTERNAL LAWS (AS OPPOSED TO
CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF ILLINOIS. LESSOR AND
LESSEE CONSENT TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED
WITHIN THE STATE OF ILLINOIS, AND WAIVE ANY OBJECTION RELATING TO IMPROPER VENUE
OR FORUM NON CONVENIENT TO THE CONDUCT AND PROCEEDING IN ANY SUCH COURT. AT
LESSOR'S SOLE ELECTION AND DETERMINATION, ANY LEGAL, EQUITABLE, OR ARBITRATION
ACTION MAY ALSO BE BROUGHT IN ANY OTHER COURT OF COMPETENT JURISDICTION IN ANY
STATE IN WHICH LESSOR HAS AN OFFICE AND LESSEE WAIVES ANY OBJECTION RELATING TO
IMPROPER VENUE OR FORUM NON CONVENIENT TO THE CONDUCT OF ANY PROCEEDING IN ANY
SUCH COURT. LESSEE, ANY GUARANTOR AN LESSOR EXPRESSLY WAIVE ANY RIGHT TO A TRIAL
BY JURY SO THAT TRIAL SHALL BE BY AND ONLY TO THE COURT.
Lease Number Lessee: RX Technology
Title: President Signature: /s/ Donald Rex Gay Date: 5-12-97
-------------- -------------------- -----------------
Donald R. Gay
<PAGE>
SCHEDULE "A"
Page 4 of 5 attached hereto and made a part of equipment lease agreement number:
- --------------------------------------------------------------------------------
Qty Description
4 DXC9000
4 CCTZ3RGB
4 CCUM5
4 CCMC1210P3
4 S14X73BWMD
$39,319.40
Annexed and made a part of a Lease Agreement dated: 5/8/97, entered into between
RX Technology as lessee and Trans Leasing International as Lessor.
/s/ Donald Rex Gay M. Algu
- ------------------------- ------------------------------------
Donald R. Gay TRANS LEASING INTERNATIONAL
<PAGE>
RETAIL
Seasonal Wage Plan
Department Incumbents Proposed Rate Day Night 3rd shift
================================================================================
Merchandising
- Host/Hostess $ 5.50
- Asst Lead $ 5.90
- Lead $ 6.00
- Supervisor $ 7.00
- Office Clerk $ 6.25
- Inventory Clerk $ 7.00
- Cash Management $ 6.25 $6.50
Food Service
- Host/Hostess $ 5.75 $6.00
- Asst Lead $ 6.20 $6.45
- Lead $ 6.30 $6.55
- Supervisor $ 7.35 $7.60
- Office Clerk $ 6.25 $6.50
- Tech Post Mix/Beer (17) $ 6.25 $6.50
- Beer Cash/Server (21) $ 6.25 $6.50
- Cooks (21) $ 6.25 $6.50
- Inventory Clerk $ 7.00 $7.25
- Cash Management $ 6.50 $6.75
<PAGE>
Exhibit 10.36
AGREEMENT ENTERED BETWEEN "VENTAS Y SERVICIOS AL CONSUMIDOR S.A. DE C.V."
REPRESENTED IN THIS ACT BY MR. ANTONIO CROSSWELL ESTEFAN ACTING AS LEGAL
REPRESENTATIVE, HEREINAFTER "VESEC" AND "RX" TECHNOLOGIES REPRESENTED IN THIS
ACT BY MR. DONALD REX GAY ACTING AS PRESIDENT HEREINAFTER "RX" IN ACCORDANCE
WITH THE FOLLOWING RECITALS AND CLAUSES.
R E C I T A L S
I. "VESEC" DECLARES THAT,
1. IS A COMPANY DULY INCORPORATED BY PUBLIC DEED NUMBER 6,840 DATED
AUGUST 26 1986, GRANTED BEFORE THE NOTARY OUBLIC 142 OF THE FEDERAL
DISTRICT MR. HUMBERTO HASSEY PEREZ CANO.
1.2 "VESEC" CONTINUE DECLARING THAT HAS CELEBRATED WITH THE MERCANTILE
SOCIETY "REINO" AVENTURA S.A. DE C.V. A CONTRACT IN WHICH "VESEC"
IS AUTHORIZED AS THE ONLY COMMERCE COMPANY IN THE PREMISES OF THE
ENTERTAINMENT PARK "REINO" AVENTURA, HEREINAFTER "THE PARK" THAT IS
LOCATED IN THE PICACHO AJUSCO ROAD KM. 1.5 COL. HEROES DE PADIERNA C.P.
14200, IN MEXICO CITY, AS PER CERTIFIED COPY OF THE MENTIONED CONTRACT
WHICH IS ATTACHED TO THE PRESENT AS LETTER "A".
1.3 THE REPRESENTATIVE OF "VESEC" DECLARES THAT HAS EMPOWERMENT TO CELEBRATE
THE PRESENT CONTRACT, ACCORDING TO THE LEGAL INSTRUMENT NO. 7276 DATED
JUNE 3, 1996, GIVEN UNDER THE FAITH OF JUAN LINARES QUINTO, NOTARY
PUBLIC 7 OF THE CITY OF PACHUCA DE SOTO, IN HIDALGO STATE, WHICH COPY IS
ATTACHED AS LETTER "B".
1.4 THE REPRESENTATIVE OF "THE CONTRACTOR" DECLARES THAT IS ENTITLED FOR
CELEBRATING THE PRESENT CONTRACT AS PER THE PUBLIC HANDWRITING ATTACHED
HERETO WITH THE LETTER "C".
1.5 BY HIS OWN WAY "THE CONTRACTOR" DECLARES THAT HER IS CAPABLE AND HAS
ENOUGH EXPERIENCE, MEANS AND RESOURCES, TECHNICAL AND HUMANS REQUIRED TO
UNROLL THE OBJECT OF THIS CONTRACT WHICH CONSISTS IN PROVIDE AND INSTALL
PHOTO IMPRESSION "THE EQUIPMENT" IN "THE PARK", WITH ARRANGEMENT TO THE
CLAUSES THAT HEREINAFTER ESTABLISHED, HAVING ALL THE AUTHORIZATION AND
PROCEEDING LICENSES, AS WELL AS THE MARK REGISTRIES AND ALL THE
GOVERNMENTAL REQUIREMENTS.
IN VIEW OF THE FOREGOING THE PARTIES AGREE AS FOLLOWS:
C L A U S E S
FIRST. THE OBJECT OF THIS AGREEMENT IS TO COMMERCIALIZE IN "THE PARK" INSTANT
PHOTO IMPRESSIONS "PHOTO IMPRESSIONS" IN ACCORDANCE WITH THE CLAUSES OF THIS
CONTRACT.
SECOND. FOR THE EXECUTION OF THE ABOVE MENTIONED OBJECT, "RX" WILL PROVIDE
THE PHOTO IMPRESSIONS SYSTEMS (THE "THE EQUIPMENT"), CONSISTING IN:
a) VIDEO CAMERA
b) PRINTER MACHINE AND COLOR MONITOR
c) CASH REGISTER
d) SENSORIAL SYSTEM
e) LIGHTS AND FLASHES UNITS
f) COMPUTER AND SOFTWARE
1
<PAGE>
ITS UNDERSTOOD AND AGREED BY THE PARTIES THAT "THE EQUIPMENT" IS PROPERTY OF
"RX" THEREFORE NEITHER "VESEC" NOR "REINO" HAVE NO RIGHT UPON THE "THE
EQUIPMENT" AND THEREFORE UNDERTAKES NOT TO LIEN NOR TO PROVOKE A LIEN UPON
SAME.
THIRD. "VESEC" AS THE ONLY COMMERCIAL COMPANY IN "THE PARK" WILL SALE THE
"PHOTO IMPRESSIONS" UNDER THE TERMS AND CONDITIONS ESTABLISHED HEREIN.
THE COMMERCIALIZATION OF THE "PHOTO IMPRESSIONS" WILL BE PERFORMED AT THE
PLACES AGREED BY THE PARTIES.
FOURTH. "RX" "TECHNOLOGY" UNDERTAKES TO PROVIDE, INSTALL, AND KEEP "CABINS" AT
HIS OWN EXPENSE IN THE "PLACES" WHICH WILL BE FABRICATED IN CONFORMITY WITH
THE SPECIFICATIONS ATTACHED AS EXHIBIT 2, HEREINAFTER THE "CABINS" OR
"CABIN". THE CONDITIONING AND DECORATION OF THE "CABINS" WILL REQUIRE THE
PREVIOUS AUTHORIZATION FROM THE IMAGE DEPARTMENT OF "REINO" UNDERTAKING
"VESEC" TO PERFORM THE NECESSARY PAPERWORK TO OBTAIN THE MENTIONED
AUTHORIZATION.
THE PARTIES AGREE THAT IF AVAILABLE PREMISES OR CONSTRUCTIONS ALREADY EXISTS
AT THE PLACE TO BE USED AS "CABINS", "VESEC" UNDERTAKES TO OBTAIN FROM
"REINO" AUTHORIZATION IN ORDER FOR THE MENTIONED PREMISES OR CONSTRUCTIONS TO
BE MODIFIED BY "RX" AND USED AS "CABINS" BY THE PERSON WHO WILL BE OPERATING
SUCH "CABINS".
FIFTH. BOTH PARTIES AGREE TO CONTINUE THE FOLLOWING OPERATIVE STEPS IN ORDER
TO ACHIEVE THE OBJECTS OF THIS CONTRACT:
a) "RX" AT HIS OWN COST WILL INSTALL THE "THE EQUIPMENT" IN EVERY "PLACE"
AND "CABINS".
b) "RX" WILL BE RESPONSIBLE FOR GIVING THE TECHNICAL SUPPORT, MAINTENANCE,
AND GOOD WORKING OF THE "THE EQUIPMENT" THEREFORE "VESEC" WILL NOT BE
RESPONSIBLE OF ANY DETRIMENT OR LOSS THAT SAME COULD SUFFER UNLESS THAT
DETIRMENT OR LOSS ARISE AS A RESULT OF NEGLIGENCE FROM "VESEC", "REINO",
IT CONTRACTORS OR SUBCONTRACTORS.
c) "RX" WILL HIRE, AT HIS OWN COST, INSURANCE TO COVER ALL THE MOBILE
GOODS, ACCESSORIES AND "THE EQUIPMENT" DESCRIBED HEREIN THAT WILL BE
INSTALLED AT "THE PARK" AND "CABINS".
d) "VESEC" WILL PERFORM AND WILL CHARGE "RX" ALL THE NECESSARY
ADVERTISEMENT TO PROMOTE THE SALES OF "PHOTO IMPRESSIONS" FOLLOWING THE
IMAGE REQUIREMENTS OF "THE PARK".
e) "RX" BY NO MEANS IS ALLOWED TO ADVERTISE THE NAME OF "THE PARK" WITHOUT
AUTHORIZATION OF "REINO", HOWEVER "REINO" CAN USE THE NECESSARY MEANS OF
DEVELOPMENT OF "RX".
f) THE PARTIES HEREBY AGREE THAT ONCE EXECUTED THE CONTRACT, WILL AGREE WHO
WILL BE RESPONSIBLE FOR THE OPERATION OF THE "CABINS" AND "THE "THE
EQUIPMENT" AS WELL AS THE PERSONNEL IN CHARGE. THE PARTY WHO BEARS SUCH
OBLIGATION, WILL BE THE ONLY RESPONSIBLE OF PAYING THE SALARIES AND
PREMIUMS TO THE PERSONNEL IN CHARGE OF "THE "THE EQUIPMENT" AND
"CABINS". THEREFORE, THE PARTY IN CHARGE OF "THE EQUIPMENT" AND "CABINS"
HEREBY UNDERTAKES TO DEFEND AND HOLD HARMLESS THE OTHER PARTY AND
"REINO" FROM ANY CLAIM, DEMAND OR COMPLAINT OF ANY NATURE THAT COULD BE
PRESENTED BY THE PERSONNEL IN CHARGE OF "THE EQUIPMENT" AND "CABINS".
g) THE PERSONNEL WILL BE TRAINED AND SUPERVISED IN EVERY MOMENT FOR THE
OPERATION OF THE "THE EQUIPMENT" AND "RX" WILL ARRANGE FOR THAT.
h) THE CORRECTIVE AND PREVENTIVE MAINTENANCE OF THE "CABINS" WILL BE AT THE
ACCOUNT OF "RX" AND THE CLEANING OF THE MOBILE "THE EQUIPMENT" WILL BE
BY THE PARTY IN CHARGE OF THE "CABINS".
2
<PAGE>
i) "RX" WILL PROVIDE EVERY WEEK THE PAPER, CARTRIDGES AND FRAMES REQUIRED
FOR "THE PHOTO IMPRESSIONS" WHICH WILL BE BE DELIVERED AT THE SOUVENIR
WAREHOUSE AND "VESEC" WILL BE THE ONLY RESPONSIBLE OF SUCH PRODUCTS FROM
THE TIME THAT "THE PRODUCTS" INGRESS THE WAREHOUSE AND WILL BE
RESPONSIBLE FOR LOSS.
"VESEC" UNDERTAKES TO DELIVER TO THE "CABINS", AS PER DEMAND, THE PHOTO
IMPRESSIONS REGISTERED THE WEEK PREVIOUS TO DELIVERY (HEREINAFTER THE
"PRODUCTS"). "THE PRODUCTS" WILL BE DELIVERED TO THE PERSONNEL IN CHARGE
OF THE "CABINS" WHO WILL BE RESPONSIBLE FOR "THE PRODUCTS" AND ANY
LOSSES AND UNDERTAKES TO FILE ON A WEEKLY BASIS A BREAKDOWN OF THE USE
AND SALES OF SAME. THE OBLIGATION OF "RX" TO PROVIDE THE NECESSARY
PRODUCTS FOR "THE "THE EQUIPMENT" WILL REMAIN AS LONG AS "VESEC" HAS
PERFORMED EVERY PAYMENT MENTIONED IN CLAUSE SEVEN.
THE PAYMENT OF LOSSES IN THE EVENT OF "VESEC"S RESPONSIBILITY WILL BE
PAID WITHIN THE FOLLOWING FIVE WORKING DAYS FROM THE DETECTION OF SUCH
LOSS.
j) THE PARTY ON CHARGE OF THE "CABINS" UNDERTAKES TO FILE ON A WEEKLY BASIS
A SALES REPORT TO THE OTHER PARTY.
k) "VESEC" UNDERTAKES TO PERFORM THE FOLLOWING INSTALLATIONS WITH PRODUCTS
AND "THE EQUIPMENT" PROVIDED BY "RX":
1) ELECTRIC INSTALLATIONS FOR THE GOOD WORKING OF "THE EQUIPMENT" AND
"CABINS".
2) DUCT OF 3" OF DIAMETER TO BE INSTALLED IN SUBTERRANEAN WAY BETWEEN
THE INSTALLATIONS OF ASSEMBLING OF THE CAMERAS AND THE "CABINS".
3) ELECTRIC CONTACTS, BREAKERS, AND CURRENT PROTECTORS.
4) AIR CONDITIONING SYSTEM 24 HRS PER DAY.
THE INSTALLATION FOR THE PLACEMENT OF THE CAMERAS WILL BE PERFORMED BY
"RX".
l) "VESEC" WILL PROVIDE A TELEPHONE LINE IN EVERY "CABIN" AND THE PARTY IN
CHARGE OF THE "CABINS" WILL COVER ALL THE EXPENSES OF THIS SERVICE. THE
EXPENSE WILL BE PAID ONCE THE INVOICE IS DELIVERED.
SIX. THE "PHOTO IMPRESSIONS" WILL HAVE THE DESIGN AND MARKS THAT "VESEC"
DETERMINES, THEREFORE, WITH EXCEPTION OF "THE PRODUCTS" MENTIONED HEREIN, IS
EXPRESSLY FORBIDDEN FOR "RX" TO USE, SALE, EXPLOIT, ETC. THE MENTIONED
DESIGN, MARK AND/OR ANY OTHER ELEMENT PROPERTY OF "REINO" AND /OR "VESEC"
AND/OR ANY OTHER OF THE BRANCH OFFICES UNDER THE PENALTY TO INCUR IN CIVIL
AND CRIMINAL SANCTIONS CONTAINED IN MEXICAN LAW.
SEVEN. BOTH PARTIES IN COMMON AGREEMENT AGREE THAT THE GROSS INCOMES DERIVED
FROM THE "PHOTO IMPRESSIONS" SALES WILL CORRESPOND, THROUGHOUT THE REMAINDER
OF THIS CONTRACT, 60% (SIXTY PERCENT) TO "RX" AND 40% (FORTY PERCENT) TO
"VESEC"; THEREFORE "RX" WILL PRESENT TO "VESEC" A MONTHLY INVOICE IN DOLLARS,
CURRENCY OF THE UNITED STATES OF AMERICA, COVERING THE AVERAGE ESTABLISHED
FROM THE WEEKLY SALES OF THE "CABINS" WHICH WILL BE PAID WITHIN THE NEXT 7
DAYS FROM THE TIME OF DELIVERY OF THE INVOICE. THE TERMS AND CONDITIONS FOR
PAYMENT WILL NOT BE MODIFIED.
IN CASE OF BREACH IN THE PART OF "VESEC", "VESEC" UNDERTAKES TO PAY 3% (THREE
PERCENT) PER MONTH OF THE TOTAL AMOUNT DUE.
EIGHT. "VESEC" WILL SALE THE "PHOTO IMPRESSIONS" TO THE VISITORS OF THE "PARK"
IN THE PRICE THAT BOTH PARTIES AGREE IN WRITING PREVIOUS TO THE SALES, BUT
WILL NEVER BE
3
<PAGE>
LESS THAN $5.00 U.S. DOLLARS FOR THE "PHOTO IMPRESSIONS" OF 5" X 7" AND $4.00
U.S. DOLLARS FOR THE "PHOTO IMPRESSIONS" OF 3"X 4" AT THE CURRENT EXCHANGE
RATE. THE PARTIES AGREE THAT TEH PROCE OF THE "PHOTO IMPORESSIONS" WILL BE
ADJUSTED IN THE EVENT OF A CHANHE IN RESPECT OF THE EXCHANGE RATE BETWEEN THE
MEXICAN PESO AND THE AMERICAN DOLLAR EQUAL OR HIGHER THAT 5% ACUMULATED IN A
PERIOD OF THIRTY (30) CALENDAR DAYS. THEREFORE, IN THE EVENT THAT THE
MENTIONED CHANGE IN THE EXCHANGE RATE ARISES, THE PARTY IN CHARGE OF THE
"CABINS" UNDERTAKES TO PERFORM THE NECESSARY AMENDMENTS TO THE PRICE OF THE
"PHOTO IMPRESSIONS" WITHIN THE NEXT 24 HOURS.
NINETH. THE AGREED PRICE FOR THE SALE OF THE "PHOTO IMPRESSIONS" WILL BE DULY
INDICATED IN THE "CABINS" FOR THE KNOWLEDGE OF THE VISITORS OF THE "PARK",
ANY OTHER NOTICE OR ANNOUNCEMENT THAT "VESEC" WISHES WILL BE AT HIS OWN
EXPENSE.
TENTH. BOTH PARTIES WILL BE RESPONSIBLE FOR THE TAXES OF THEIR RESPECTIVE
INCOMES DERIVED FROM THE PRESENT CONTRACT.
ELEVENTH. "RX" HAS THE RIGHT TO MODIFY "THE EQUIPMENT" BY MEANS OF SECURITY
AND TECHNOLOGY ADVANCEMENTS OR IN ORDER TO COMPLY WITH THE LAW REQUIREMENTS
WITHOUT ANY CHARGE TO "VESEC". IN THE EVENT THAT "THE "THE EQUIPMENT" SUFFERS
ANY DAMAGES, "RX" WILL HAVE 14 DAYS TO RESTORE OR REPLACE "THE "THE
EQUIPMENT" ONCE NOTIFIED BY THE PERSONNEL OF "THE PARK".
TWELVE. IN THE EVENT THAT "REINO" DECIDES TO REMOVE SALE OR CLOSE ANY GAME IN
ORDER TO PERFORM MAINTENANCE WORK, "RX" WILL BE NOTIFIED IN WRITING, WITH NO
LIABILITY FOR "VESEC" AND BEING "RX" ALLOWED TO TERMINATE THE CONTRACT OR TO
RE-LOCATE "THE EQUIPMENT" PREVIOUSLY AT THE CLOSED GAME IN WHICH CASE THE
CONTRACT WILL REMAIN THE SAME.
IN THE EVENT OF CLOSING OF ONE GAME OR "THE PARK" FOR MORE THAN 7 DAYS, "RX"
WILL BE ALLOWED TO TERMINATE THE CONTRACT WITHOUT RESPONSIBILITY OR TO REMOVE
PART OF "THE EQUIPMENT" AND CONTINUE WITH THE TERMS AND CONDITIONS OF THIS
CONTRACT.
THIRTEEN. "VESES AND "REINO" HEREBY GRANT TO "RX" THE EXCLUSIVE RIGHT TO
PROVIDE PHOTOGRAPHS AT THE GAMES, WHICH IS OBJECT OF THIS CONTRACT,
UNDERTAKING BOTH COMPANIES NOT TO HIRE THE SERVICES OR ACQUIRE "THE PRODUCTS"
MENTIONED IN THIS CONTRACT FROM A THIRD PARTY.
THE BREACH IN THE PART OF VESES OF "REINO" WILL GRANT THE RIGHT TO "RX" TO
DEMAND, PER EACH INSTALLED "THE EQUIPMENT", AN INDEMNIZAITON EQUAL TO THE
INCOME OBTAINED BY THE OPERATION OF THE MOST PROFITABLE "THE EQUIPMENT" OF THE
"THE EQUIPMENT" AND WILL LAST FOR THE TIME OF THE BREACH.
FOURTEEN. "VESEC" WILL BE THE ONLY ENTITLED TO GIVE DISCOUNTS IN THE INSIDE
STORES OF "THE PARK".
FIFTEEN. "RX" WILL HAVE TO IMPROVE THE "CABINS" AS REQUIRED BY THE IMAGE OF
"THE PARK" OR WHEN REQUIRED BY "VESEC" WITHOUT ANY EXPENSES FOR "VESEC". "RX"
WILL NOT BE ABLE TO PERFORM ANY MODIFICATION WITHOUT AUTHORIZATION FROM
"REINO" WHICH WILL BE OBTAINED BY "VESEC".
SIXTEEN. BOTH PARTIES AGREE THAT THE PRESENT CONTRACT WILL HAVE A DURATION
TERM OF THREE YEARS FROM DATE OF THE INSTALLATION OF THE FIRST "THE
EQUIPMENT". SHOULD ANY OF THE PARTS OF TEH CONTRACT WOULD LIKE TO ANTICIPATE
THE TERMINATION OR TO EXTEND THE PERIOD OF TIME, WILL HAVE TO MADE A WRITTEN
REQUEST 120 DAYS IN ADVANCE.
SEVENTEEN. ALL THE EXPENSES DERIVED FROM THE OPERATION OFT HE "CABINS" IN
WHICH THE PHOTO IMPRESSIONS WILL BE AT SALE, WILL BE AT THE COST OF THE PARTY
IN CHARGE OF THE "CABINS".
4
<PAGE>
EIGHTEEN. "RX" WILL BE THE ONLY ONE RESPONSIBLE FOR ANY CLAIM FROM THE
VISITORS FOR BAD IMPRESSIONS OF PHOTO IMPRESSIONS AND UNDERTAKES TO DEFEND
AND MAINTAIN "VESEC" AND/OR "REINO" SAFE OF ANY PROBLEM THAT COULD ARISE FOR
SUCH CAUSES AND/OR UNDERTAKES TO INDEMNIFY FOR THE COSTS IN DEFENDING SAME.
NINETEEN. "RX" MUST PROVIDE EVERYTHING NECESSARY FOR THE OPERATIONS OF THE
"CABINS", EXCEPT THE BANK TERMINALS THAT COULD BE PROVIDED BY "VESEC" AS
LONG AS "VESEC" HAS EFFECTED ALL PAYMENTS IN ACCORDANCE WITH CLAUSE SEVENTH.
TWENTIETH. THE PARTIES AGREE THAT THE PRESENT CONTRACT IS OF A MERCANTILE
NATURE THEREFORE IT IS EXPRESSLY AGREED THAT IN NO WAY A LABOR RELATIONSHIP
COULD ARISE BETWEEN "RX", "VESEC" AND "REINO".
"RX" IS TO EMPLOY ONE MANAGER TO COMPLY WITH ITS OBLIGATIONS WITH "VESEC".
ALL OTHER EMPLOYEES WILL DEPEND EXCLUSIVELY FROM "VESEC", BEING "VESEC" THE
ONLY RESPONSIBLE FOR THE PAYMENT OF THE SALARY AND PREMIUMS AS WELL AS THE
COMPLIANCE WITH ALL THE LABOR OBLIGATIONS WITH THE MENTIONED PERSONNEL.
SHOULD THE "VESEC" PERSONNEL FILE A LAW SUIT OF ANY NATURE, EITHER CIVIL,
LABOR OR CRIMINAL OR ANY OTHER AGAINST "RX", "VESEC" UNDERTAKES TO DEFEND AND
HOLD "RX" HARMLESS AS WELL AS TO COVER THE LEGAL COSTS AND EXPENSES INCURRED.
TWENTYONE. THE LICENSES AND PERMISSIONS REQUIRED FOR THE OPERATION OF THE
"CABINS" IN THE "PARK" WILL BE CONDUCTED, OBTAINED AND PAID BY "VESEC" WHICH
WILL HAVE THE TITLE OF THE SAME.
TWENTYTWO. NONE OF THE PARTIES CAN CEDE OR TRANSMIT TO THIRD PERSONS THE
RIGHTS AND OBLIGATIONS DERIVED IN THEIR FAVOR FROM THE PRESENT CONTRACT
WITHOUT PREVIOUS WRITTEN AUTHORIZATION FROM THE OTHER PARTY.
TWENTYTHREE. A BREACH OF ANY TERM OF THE PRESENT CONTRACT WILL ALLOW THE
PARTIES TO RESCIND IT.
IT IS EXPRESSLY AGREED THAT IN THE EVENT OF TERMINATION OF THIS CONTRACT "RX"
WILL HAVE ACCESS TO "THE PARK" IN ORDER TO PROCEED WITH THE REMOVAL OF "THE
"THE EQUIPMENT". "RX" WILL HAVE 10 WORKING DAYS TO REMOVE ITS "THE EQUIPMENT",
FAILURE TO DO SO "VESEC" WILL REMOVE IT WITHOUT RESPONSIBILITY AS TO DAMAGES
SUFFERED BY "THE "THE EQUIPMENT" DURING THE PROCESS OF BEING STORED.
"VESEC" AND "REINO" UNDERTAKE TO INDEMNIFY "RX" THE EQUIVALENT OF
U.S.D. $2,000.00 (TWO THOUSAND AMERICAN DOLLARS) PER EXTRA DAY IN THE EVENT
THAT FOR CAUSES ATTRIBUTABLE TO "VESEC" OR TO "REINO", "RX" COULD NOT REMOVE
"THE EQUIPMENT". THIS PARAGRAPH AS WELL AS THE FINE MENTIONED HEREIN WILL NOT
BE IN FORCE IN THE EVENT THAT THE FAILURE TO REMOVE "THE EQUIPMENT" IS DUE TO
AN ORDER BY COMPETENT AUTHORITY THAT CAN NOT BE ATTRIBUTABLE TO A FAULT OR
OMISSION IN THE PART OF "VESEC" AND/OR "REINO", FORCE MAJOR, STRIKES,
DEMONSTRATIONS, OR ANY OTHER CAUSE THAT COULD NOT BE AVOIDED BY "VESEC"
AND/OR "REINO".
IN VIEW OF THE FOREGOING, AND WITH THE ONLY PURPOSE TO HAVE KNOWLEDGE AS WELL
AS TO ASSUME THE OBLIGATIONS IMPOSED BY THIS CONTRACT, "REINO" EXECUTES SAME
BY ITS LEGAL REPRESENTATIVE ANTONIO CROSSWELL ESTEFAN AND IT IS EXPRESSLY
AGREED THAT "REINO" DOES NOT, IN ANY WAY, BEARS THE OBLIGATIONS "VESEC"
NOR GUARANTEES SAME.
TWENTYFOUR. FOR THE INTERPRETATION OF THE PRESENT CONTRACT THE LAW OF THE
UNITED MEXICAN STATES WILL BE THE APPLICABLE. IN THE EVENT OF A DISPUTE
BETWEEN THE PARTIES REGARDING THE OPERATION, INTERPRETATION, TERMINATION AND
OBSERVANCE OF THIS CONTRACT THE PARTIES HEREBY SUBMIT TO ARBITRATION IN
ACCORDANCE WITH THE RULES OF THE INTERAMERICAN COMMERCIAL ARBITRATION
COMMISSION, AND BOTH ENGLISH AND SPANISH LANGUAGES ARE CONSIDERED VALID AND
ARE PART OF THE PRESENT CONTRACT.
THE PARTIES FURTHER AGREE THAT:
5
<PAGE>
1. IN THE EVENT THAT THE PARTIES DOES NOT NOMINATE THE ARBITRATORS OR IN
THE EVENT OF VACANCY OF ANY ARBITRATOR, THESE WILL BE DESIGNED BY THE
INTERAMERICAN COMMERCIAL ARBITRATION COMMISSION.
2. THE ARBITRATION WILL TAKE PLACE WITHIN THE UNITED MEXICAN STAES.
3. THE RESOLUTION WILL BE PRONOUNCED WITHIN THE NEXT THREE DAYS FROM THE
TERMINATION OF THE EXHIBITION OF PROOFS AND CLOSING OF HEARINGS.
4. THE PARTIES RENOUNCE TO EFFECT AN APPEAL TO SUCH RESOLUTION, UNLESS THE
NULLITY TRIAL FOR THE EXCESS OF POWERS OF THE ARBITRATORS.
5. THE PARTIES WILL FULLY COMPLY THE RESOLUTION OF THE ARBITRATION IN
ACCORDANCE WITH THE RULES OF THE MENTIONED COMMISSION AND THIS CONTRACT.
TWENTYFIVE. "RX" ACKNOWLEDGES THAT THE INFORMATION, DOCUMENTS, KNOWLEDGE,
MANUALS, PRODUCTS AND SERVICES TO WHICH HAS ACCESS BY VIRTUE OF THIS CONTRACT
ARE THE PROPERTY OF "VESEC" AND UNDERTAKES TO MAINTAIN ABSOLUTE
CONFIDENTIALITY AND THEREFORE NOT TO REVEAL OR PERMIT IN ANY WAY THE ACCESS
TO SAME TO THIRD PARTIES. IN THE SAME FORM. "VESEC" UNDERTAKES TO PROCEED
ACCORDINGLY WITH REGARD TO THE INFORMATION, DOCUMENTS, MANUALS, KNOWLEDGE
PRODUCTS AND SERVICES OF "RX".
TWENTYSIX. "RX" HAS NO RIGHTS TO SPONSOR OR TO BE SPONSORED WITH THE PREVIOUS
AUTHORIZATION FROM "REINO".
TWENTYSEVEN. FOR ALL THE RELATED EFFECTS OF THIS CONTRACT THE PARTIES
INDICATE AS THEIR RESPECTIVE DOMICILES FOR SERVICE AS FOLLOWS:
"VESEC" CARRETERA AJUSCO-PICACHO KM 1.5 COL. HEROES DE PADIERNA C.P.
14200 MEXICO D.F., TELEPHONE: 57 28 72 00 FAX: 57 28 72 91
"RX" 2264 SEVENTH STREET MANTEVILLE, LOUISIANA, 70471, ESTADOS UNIDOS DE
NORTEAMERICA.
"REINO" CARRETERA PICACHO AL AJUSCO KM. 1.5 COL. HEROES DE PADIERNA C.P.
14200 MEXICO, D.F.
THE PARTIES BEING AWARE OF THE CONTENTS OF THIS CONTRACT EXECUTE SAME IN
DUPLICATE IN MEXICO CITY THIS DAY 22 OF MARCH 2000.
"VESEC" "RX"
- ------------------------------ ----------------------------
S. Beatriz Gay Secretary
"REINO"
- ------------------------------
ANTONIO CROSSWELL ESTEFAN
LEGAL REPRESENTATIVE
6
<PAGE>
Exhibit 10.37
AGREEMENT BETWEEN RX TECHNOLOGY EUROPE LIMITED.
AND RX TECHNOLOGY INC.
DATE: 25TH JANUARY 2000
WRITTEN BY: CHRIS MARVELL (RX TECHNOLOGY EUROPE LIMITED.)
HISTORY
There has been a business relationship between Rex Gay and Chris Marvell
since 1984. The role of Chris Marvell, with the company Marvell Consultants
Ltd. and later RX Technology Europe Limited has always been that of inventor,
designer, developer and supplier of electronic equipment and software to Rex
Gay of RX Technology Inc.
AGREEMENT
1. RX Technology Europe Limited is the inventor of and owns the
intellectual property in the Hardware and Software developed by it
for use in digital photography applications and supplied by it,
sometimes through intermediate subcontract manufacturers, to RX
Technology Inc.
2. For the purposes of marketing this equipment, RX Technology Europe
Limited agrees that RX Technology Inc. shall have the sole right to
use and market this equipment within the American Continent (USA,
Canada, Mexico, Central America, South America and the West Indies).
3. RX Technology Europe Limited agrees to the supply of RX Technology
Inc. with this equipment and software when RX Technology Inc.
requests this.
4. RX Technology Europe Limited will make a charge of the parts and
manufacturing costs plus an additional amount between 20% and 80% of
the parts and manufacturing costs to cover testing, shipping to RX
Technology Inc. and a basic 1 year warranty on this equipment.
5. RX Technology Europe Limited will develop software to enable the
operation of the equipment. This software will be supplied without
charge on an as-is basis as it becomes available.
6. RX Technology Europe Limited will investigate new developments in
the field of digital photography and design custom hardware and
software to exploit these new developments. RX Technology Inc. will
then be kept fully informed of these developments and offered them.
7. RX Technology Inc. agree that they will utilize no equipment or
software from suppliers other than RX Technology Europe Limited as
long as RX Technology Europe Limited is able to supply suitable
equipment and software for the intended uses.
8. RX Technology Inc. agree that, unless authorized by RX Technology
Europe Limited, they will not sell, give or otherwise supply any RX
Technology Europe Limited equipment or software to a person or
organization which is then or could reasonably be expected to become
a competitor.
9. Both RX Technology Europe Limited and RX Technology Inc. agree not
to disclose, without authorization by the other, to any person or
organization, information concerning the equipment, software,
interests or customers of the other company which has been disclosed
in confidence and is not of common knowledge.
CONDITIONS
1. RX Technology Europe Limited reserves the right to end this
agreement if the charges made in (4) above are not paid by RX
Technology Inc. in a reasonable time, agreed at the time each order
is placed by RX Technology Inc.
<PAGE>
2. RX Technology Europe Limited reserves the right to end the agreement
if RX Technology Inc. should cease trading, become insolvent or no
longer be under the control of Rex Gay. Under any of these
conditions, the agreement would lapse and need to be renegotiated.
3. RX Technology Europe Limited reserves the right to end the agreement
if RX Technology Europe Limited should cease trading, become
insolvent or no longer be under the control of Chris Marvell. Under
any of these conditions, the agreement would lapse and need to be
renegotiated.
4. RX Technology Europe Limited accept no responsibility for the
malfunction of equipment and/or software supplied nor for any loss
or damage caused by any such malfunction.
5. This agreement is valid for a period of 1 year from the date of this
document and will be renewed annually subject to the status of RX
Technology Inc. and RX Technology Europe Limited meeting conditions
(2) and (3).
6. The agreement is made under the jurisdiction of British Law.
APPENDIX: LIST OF ITEMS SUPPLIED BY RX TECHNOLOGY EUROPE
CUSTOM ELECTRONIC HARDWARE
1. Ultra-high-speed photographic flash (Superflash)
2. Camera triggering and control unit (TCU/TCUCAM/VTCU)
3. PC based multi-monitor display system (VBUFM)
4. PC based specialized frame grabbers (BFG/CFG)
5. PC based video print server (VBUFC)
6. Video Line equalizer and sync corrector (VRX/DVRX)
7. PC based specialized network communications unit (485)
8. Specialized EPOS Unit (POS)
9. Specialized multiple video printer controller (MUX)
10. Multiple Camera timing and selection unit (VMUX)
CUSTOM SOFTWARE
1. DOS Photosystem Control/EPOS/Accounting software RXTB286
2. DOS Photosystem Control/EPOS/Accounting software RXT98
3. Windows Remote Camera Control Software CAMCTRL
4. Windows Complete Photosystem Software RXT99
5. Windows Photosystem Software RXT2000
6. Engineering diagnostic and support software (NETSTAR, TCUTALK, VMUXTALK,
CSUITE)
These items in various combinations are needed as parts of a complete RX
Technology Photosystem. The items work with or within standard equipment from
other manufacturers. While these standard items may be obtained from many
sources, the items listed above are specific designs by RX Technology Europe.
The RX Technology Europe designed hardware items are currently manufactured
in England.
For and on Behalf of RX Technology Europe Limited,
For and on Behalf of RX Technology Inc.
<PAGE>
REGISTRANT'S LIST OF SUBSIDIARIES
1. RX Technology, Inc.
<PAGE>
Exhibit 23.0
[LETTERHEAD]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the use in this Registration Statement on Form SB-2 of
our report dated January 13, 2000, relating to the financial statements of
RX Technology, Inc. for the years ended December 31, 1999 and 1998, which is
part of this Registration Statement.
/s/ Wegmann-Dazet & Co. APC
----------------------------
Wegmann-Dazet & Co. APC
Metairie, Louisiana
April 7, 2000
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form SB-2 for RX Technology Holdings, Inc. (formerly
known as Valley Excavation and Trucking, Inc.), of our report dated January 14,
2000, relating to the December 31, 1999 and 1998 financial statements of Valley
Excavation and Trucking, Inc., which appears in such Prospectus. We also consent
to the reference to us under the heading "Experts".
/s/ PRITCHET, SILER & HARDY
PRITCHETT, SILER & HARDY, P.C.
Salt Lake City, Utah
April 24, 2000
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM RX
TECHNOLOGY, INC. YEAR ENDED DECEMBER 31, 1999 AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 109,958
<SECURITIES> 0
<RECEIVABLES> 289,250
<ALLOWANCES> (2,500)
<INVENTORY> 190,055
<CURRENT-ASSETS> 586,763
<PP&E> 3,202,680
<DEPRECIATION> (664,512)
<TOTAL-ASSETS> 3,162,253
<CURRENT-LIABILITIES> 2,987,698
<BONDS> 0
0
0
<COMMON> 2,027
<OTHER-SE> 31,619
<TOTAL-LIABILITY-AND-EQUITY> 3,162,253
<SALES> 6,028,397
<TOTAL-REVENUES> 6,028,397
<CGS> 3,049,454
<TOTAL-COSTS> 3,207,170
<OTHER-EXPENSES> (655)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 595,774
<INCOME-PRETAX> (823,346)
<INCOME-TAX> 0
<INCOME-CONTINUING> (823,346)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (823,346)
<EPS-BASIC> (.41)
<EPS-DILUTED> (.41)
</TABLE>
