EXHIBIT 10.23
Silverwood
Tremors
AGREEMENT
This Agreement is between: RX Technology (SM)
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and
Silverwood
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▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Phone (▇▇▇) ▇▇▇-▇▇▇▇
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.
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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.
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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 ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, 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
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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
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Retail Sales Price $7.95
55% Payment to "The Park" -$4.37
RX Technology (RX pays for print media) $3.58
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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.
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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
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Signed /s/ ▇▇▇▇▇▇ ▇▇▇ Gay Signed /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name ▇▇▇▇▇▇ ▇▇▇ Gay Print Name ▇▇▇▇▇ ▇▇▇▇▇▇
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Date 4-22-99 Date 4/27/99
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