EXHIBIT 10.5
Six Flags Over Mid America
Front Gate
(Renewal Pending)
SIX FLAGS ST. LOUIS
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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 ▇▇▇ ▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and RX Technologies, Inc., d/b/a
RX Technologies, Inc., a Nevada Corporation, having offices at P0 ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ("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
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,
▇▇▇▇ 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 ▇▇▇▇, 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 ▇▇▇▇ 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 ▇▇▇▇ 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, ▇▇▇▇ or charge on RX Technologies, Inc.'s
10
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, ▇▇▇▇ 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 ▇▇▇▇, 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
11
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 ▇▇▇▇, 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.
12
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
▇-▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Att: ▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Ext 406
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Retail Fax: ▇▇▇-▇▇▇-▇▇▇▇
Copy to: Six Flags Corporate Offices
▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
To Licensee: RX Technologies, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇
President/Owner
13
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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.
14
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
15
to the subject matter hereof. This Agreement may not be modified except by
written instrument duly executed by the parties hereto
--------------------
16
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:
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President & General Manager
RX TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
--------------------------------------
▇▇▇ ▇▇▇▇
President/Owner
S-1
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
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
(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) ▇▇▇▇ 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
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
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) ▇▇▇▇ 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
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) ▇▇▇▇ 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
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
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
Exhibit C
Employees
RX Technologies, Inc. Employees shall include the following:
No. of Employees Title
---------------- -----
1 Supervisor
3 Cashier/Photographers
Ex. C - 0
Exhibit D
SIX FLAGS ST. LOUTS
P0 BOX 60, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone #(636)938-5300Fax #(▇▇▇)▇▇▇-▇▇▇▇
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.
--------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
CO. TYPE OF INSURANCE POLICY EFFE. EXP. LIMITS IN THOUSANDS
LTR. NUMBER DATE DATE
----------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------
Ex. D - 1
----------------------------------------------------------------------------------------
EXCESS LIABILITY (NOTE 5) EACH OCCURRENCE $____
o UMBRELLA AGGREGATE $____
o 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 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
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