SECOND MODIFICATION AGREEMENT AND WAIVER OF DEFAULTS
THIS SECOND MODIFICATION AGREEMENT AND WAIVER OF DEFAULTS (this
"Agreement") dated as of June 25, 2001 is made by and between Cinema Ride,
Inc. ("Lessee") and FINOVA Capital Corporation, a Delaware Corporation, as
successor in interest to FINOVA Technology Finance Inc. ("Lessor").
WHEREAS, Lessee and Lessor have entered into that certain Master
Equipment Lease designated no. S619001 dated as of December 12, 1996 and
Rental Schedule No. 1 dated as of December 26, 1996 (the "Lease"). The
Lease, together with all other agreements, instruments and other documents
executed or otherwise delivered in connection therewith are defined herein
as the "Lease Documents"; and
WHEREAS, Lessee has defaulted in its obligations to Lessor by failing
to pay to Lessor the payments which were due for December 2000, January
2001, February 2001, March 2001, April 2001 and May 2001 (the "Defaults")
and Lessee has requested that Lessor modify the Lease and waive the
Defaults, and Lessor has agreed to modify the Lease and waive the Defaults
on the conditions set forth below.
NOW THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. ESTOPPEL WITH RESPECT TO OUTSTANDING INDEBTEDNESS. Lessee hereby
acknowledges, confirms and agrees that through and including the date of
this Agreement, the following amounts are due and owing to Lessor pursuant
to the Lease: underlying unpaid obligation in the amount of $830,730.67,
open delinquent payments due on December 2001, January 2001, February 2001,
March 2001, April 2001 and May 2001 in the aggregate amount of $130,732.62
(collectively, the "Delinquent Amounts") and Lessee acknowledges that
Lessee's failure to have paid the Delinquent Amounts constitutes an Event
of Default under the Lease. Lessee hereby acknowledges, confirms and
agrees that as of the date hereof, the Lease Documents are in full force
and effect and represent the valid, legal and binding obligations of Lessee
to Lessor.
2. MODIFICATION OF LEASE AND WAIVER OF DEFAULTS. Subject to the
satisfaction of the conditions precedent contained in Section 3 herein,
Lessor hereby waives the Defaults referred to above. Furthermore, subject
to the satisfaction of the conditions precedent contained in Section 3
herein, the Lease shall be modified to provide that as of June 1, 2001, the
monthly rental payments shall be reduced to $10,000.00 (exclusive of
applicable taxes) according to the amortization schedule attached hereto
and incorporated by reference herein as Exhibit "A". A final balloon
payment shall be due to Lessor on March 1, 2002 in the amount of
$631,786.81. Provided no events of default have occurred under this
Agreement or the Lease, Lessor agrees to enter into negotiations with
Lessee with respect to the refinance of the balloon payment at or around
the time same becomes due. Lessee acknowledges that except to the extent
expressly modified in this Agreement, all provisions of the Lease Documents
are and shall remain and be in full force and effect as to any and all
actions and transactions entered into by or on behalf of Lessee at any time
on or prior to the date hereof, or at any time subsequent to the date
hereof. Lessee further acknowledges that Lessor reserves its rights to
declare defaults other than the Defaults referred to above to the extent
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Lessee defaults under the terms of this Agreement or the Lease.
3. CONDITIONS PRECEDENT TO WAIVER. The agreement to modify the
Lease and waive Defaults contained herein is subject to the satisfaction,
in Lessor's sole and absolute discretion, of the following conditions
precedent:
a. Lessee shall issue to Lessor, within fourteen (14) days of the
date of this Agreement in a form acceptable to Lessor in Lessor's sole
discretion, 25,000 warrants at $.50 and 25,000 warrants at $1.00.
4. AFFIRMATIONS. Lessee hereby unconditionally and irrevocably
confirms, reaffirms, ratifies and agrees that all of Lessee's obligations
and liabilities to Lessor remain in full force and effect as the legally
binding and enforceable obligations and liabilities of Lessee.
5. WAIVER OF CLAIMS. Lessee irrevocably acknowledges, agrees and
affirms that it possesses no claims, defenses, offsets, recoupment or
counterclaims of any kind or nature against or with respect to the
enforcement of this Agreement or any of the Lease Documents (collectively,
the "Claims") nor does Lessee now have knowledge of any facts that would or
might give rise to any Claims. If facts now exist which would or could
give rise to any Claim against or with respect to the enforcement of this
Agreement and/or any of the Lease Documents, Lessee hereby unconditionally,
irrevocably and unequivocally waives and fully releases any and all such
Claims as if such Claims were the subject of a lawsuit, adjudicated to
final judgment from which no appeal could be taken, and therein dismissed
with prejudice. Lessee irrevocably acknowledges, agrees and affirms that
Lessor's waiver does not create nor shall be deemed to create any reliance
or expectation on the part of Lessee, or any course of dealing between
Lessor and Lessee, pursuant to which Lessor would be obligated to continue
to waive defaults under the Lease Documents other than the Defaults, except
as expressly set forth in this Agreement.
6. COUNTERPARTS/FACSIMILE COPIES. This Agreement may be executed in
counterparts, each of which shall constitute an original hereof and all of
which together shall constitute one Agreement. The parties to this
Agreement hereby agree that an executed facsimile of this Agreement shall
constitute a legally binding original copy.
7. MISCELLANEOUS.
a. The recitals set forth above are material, are incorporated
herein by this reference and shall be construed consistent
with such recitals.
b. This Agreement constitutes the entire agreement of the parties
concerning the subject matter hereof and it shall not be
modified or amended except by written consent of the parties.
c. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Connecticut.
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IN WITNESS WHEREOF the parties hereto have signed this Agreement or have
caused this Agreement to be signed on their respective behalves by their
duly authorized officers, as applicable, all as of the date and year first
above written.
CINEMA RIDE, INC.
By: /s/ Xxxxx Xxxxxxx
_______________________________________
Name: Xxxxx Xxxxxxx
Its: President
FINOVA CAPITAL CORPORATION, as successor
in interest to FINOVA TECHNOLOGY FINANCE, INC.
By: _______________________________________
Name: _______________________________________
Its: _______________________________________
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