EXHIBIT 10.18
Six Flags Great Adventure
Medusa
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 Xxxxx 000, Xxxxxxx, XX 00000 ("Six flags"), and RX TECHNOLOGY,
having offices at XX Xxx 0000, Xxxxxxxxxx, XX 00000 ("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 & Xxxxx 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.
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
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 xxxx 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 & Xxxxx 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 xxxx 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 xxxx 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, xxxx 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, xxxx 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 xxxx, 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
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 xxxx, 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
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
XXXXX 000
XXXXXXX, XX 00000
Attn: Xxxx Xxxxxxxx
Fax: (000) 000-0000
copy to: Premier Parks.
00000 Xxxxxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxx, Xx 00000
Attn: General Counsel
Fax: (000-000-0000)
To Licensee: RX TECHNOLOGY
d/b/a/ Batman & Xxxxx Ride Photo
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: D. Xxx Xxx
Fax: (000-000-0000)
13
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
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
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
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/ Xxxxxxx Xxxxxxx
------------------------------
Name Xxxxxxx Xxxxxxx
Title: Director of Finance
LICENSEE:
RX TECHNOLOGY
d/b/a/ Batman & Xxxxx Ride Photo
By: /s/ D. Xxx Xxx
------------------------------
Name: D. Xxx Xxx
Title: Chairman/CEO
S-1
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.
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
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)
xxxx 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.
(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.
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) xxxx 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.
(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) xxxx 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.
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.
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.
Exhibit C
Employees
Licensee's Employees shall include the following:
No. of Employees Title Function Location
---------------- ----- --------- --------
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
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
Exhibit F
Early Termination
Exhibit G
SIX FLAGS GREAT ADVENTURE
XXXXX 000, X.X. XXX 000
Telephone #(000) 000-0000 Fax #(000) 000-0000
CERTIFICATE OF INSURANCE
COMPANIES AFFORDING COVERAGE
COMPANY COMPANY
LETTER A LETTER D
COMPANY COMPANY
LETTER B XXXXXX 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)
_____________________________
--------------------------------------------------------------------------------------------------
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
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 ? ______ ______
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, Xxxxxxxxx, XX 00000.
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 0000 Xxx Xxxxx Xxxxxxx, Xxxxxxx, XX 00000.
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 X.X. Xxx 00,
Xxxxxx, XX 00000.
4. SIX FLAGS ASTROWORLD, a division of Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 0000 Xxxxx Xxxxx, Xxxxxxx, XX 00000.
5. SIX FLAGS WATERWORLD, d/b/a Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 0000 Xxxxx Xxxxx, Xxxxxxx, XX 00000.
6. SIX FLAGS GREAT ADVENTURE, a division of Six Flags Theme Parks Inc., a
Delaware corporation, having offices at Xxxxx 000, Xxxxxxx, XX 00000.
7. SIX FLAGS MAGIC MOUNTAIN, a division of Six Flags Theme Parks Inc., a
Delaware corporation, having offices at 0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx,
XX 00000.
8. SIX FLAGS HURRICANE HARBOR, d/b/a Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000.
9. SIX FLAGS GREAT AMERICA, a division of Six Flags Theme Parks Inc., a Delaware
corporation, having offices at 000 Xxxxx Xxxxx 00, Xxxxxx, XX 00000.
10. SIX FLAGS HURRICANE HARBOR, d/b/a Six Flags Theme Parks Inc., a Delaware
Corporation, having offices at 0000 X. Xxxxx, Xxxxxxxxx, XX 00000.
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 00000 XX 00 Xxxx, Xxx Xxxxxxx, XX 0000-0000.
12. SIX FLAGS THEME PARKS INC., a Delaware corporation, having offices at 000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx X, Xxxxx Xxxxx, Xxxxxxxxxx, XX 00000-0000.
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 000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx X, Xxxxx Xxxxx,
Xxxxxxxxxx, XX 00000-0000, 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 0000 0xx Xxxxxx. Xxxxxxxxxxx, XX 00000.
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
000 Xxxxxxxx Xxxxxx, 0000 Xxxx Xxxxxx XX, Xxxx Xxxxx, Xxxxx 00000, 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
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/ Xxxxxx Xxx Gay
-------------------------
Name: Xxxxxx Xxx Gay
-----------------------
Title: President
----------------------
