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EXHIBIT 6.f
The Company has entered into agreements with 21 malls managed by Urban
Retail Properties Company. The following list describes each mall. Following the
list is a form of common agreement for each mall.
Urban (21 Centers) Contract Term - [**] Year
Property Name Location
------------- --------
Brandon TownCenter Brandon, FL
Century City Shopping Center Los Angeles, CA
Citrus Park Town Center Citrus, FL
Clackamas Town Center Clackamas, OR
Xxxxxx Place Boston, MA
Fashion Place Plantation, FL
Fox Valley Center Aurora, IL
Galleria At Roseville Roseville, CA
Hawthorn Center Vernon Hills, IL
Hickory Ridge Mall Memphis, TN
Louis Joliet Joliet, IL
MainPlace Santa Xxx Santa Ana, CA
Oakbrook Center Oak Brook, IL
Old Orchard Skokie, IL
Penn Square Oklahoma City, OK
900 North Michigan Chicago, IL
Stratford Square Bloomingdale, IL
Valencia Town Center Valencia, CA
Water Tower Place Chicago, IL
Wolfchase Galleria Memphis, TN
Woodland Hills Tulsa, OK
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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PURCHASE AGREEMENT AND SERVICE CONTRACT
THIS AGREEMENT (the "Agreement") is entered into effective as of
___________________, 2000 (the "Effective Date") by and between NEIGHBORHOOD BOX
OFFICE, INC., a Utah corporation ("NBO") with its principal place of business at
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000 and URBAN ROSEVILLE
LLC, a Delaware limited liability company ("Owner"), with its principal place of
business at 000 X. Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-1957.
RECITALS:
A. WHEREAS, NBO is in the business of developing, marketing, owning and
operating remote gift certificate distribution systems (the "Network");
B. WHEREAS, Owner is the owner of the improvements located at The Galleria
At Roseville, located at 0000 Xxxxxxx Xxxxxxxxx, xx Xxxxxxxxx, Xxxxxxxxxx (the
"Center");
C. WHEREAS, NBO and Owner desire to enter into a relationship whereby NBO
will make available and install its remote gift certificate distribution machine
(a "Counter Unit") in the Center; and
D. WHEREAS, a gift certificate represents an interest in funds held for
the benefit of holder of the gift certificate until redemption for merchandise.
NOW, THEREFORE, in consideration of the premises set forth above, the
mutual promises, covenants, and agreements set forth hereinafter, and for other
good and valuable consideration, the parties agree as follows:
1. COUNTER UNIT. Owner hereby grants NBO the right to offer, issue and
distribute through its Counter Unit, via the Internet and by telephone to retail
and corporate or consumer users, gift certificates redeemable at the retail
establishments located within the Center only. Following NBO's installation of
the Counter Unit at the Center, the equipment comprising the Counter Unit shall
be and remain the personal property of Owner.
2. INSTALLATION. NBO will install the Counter Unit at a location in the
Center designated by Owner in its sole discretion, within ninety (90) days
following the Effective Date of this Agreement. Owner will provide electrical
and telephone service connections to the Counter Unit, at Owner's sole cost and
expense. [OWNER XXXX ALSO BE RESPONSIBLE FOR ALL MONTHLY TELEPHONE UTILITY
EXPENSES INCURRED IN THE OPERATION OF THE COUNTER UNIT AT THE CENTER, CHARGES
SHALL BE LIMITED TO THE LOCAL TELEPHONE LINE PROVIDED BY THE AREA PHONE SERVICE
PROVIDER AND THE INTERNET SERVICE PROVIDER (ISP).] Any other alternative service
connection will be mutually agreed upon.
3. FEES. Owner will pay to NBO the sum of [**] Dollars ([**]) for the
Counter Unit installed by NBO within thirty (30) days following the installation
of the Counter Unit at the Center.
4. ADDITIONAL COUNTER UNIT. NBO will install an additional Counter Unit at
the Center at Owner's request, for the months of November and December of any
year during the Term (as defined hereinafter). The terms of this Agreement shall
be applicable to such temporary installation, with the exception that Owner will
pay NBO $[**] for such temporary installation, as well as all shipping fees
incurred to deliver the Counter Unit to Owner and to return the Counter Unit to
NBO. In the event Owner elects to rent the additional Counter Unit from NBO,
Owner must notify NBO no later than the July 31
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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immediately preceding the November in which Landlord requires such additional
installation in order for such election to become effective.
5. SERVICE AND WARRANTY. NBO will maintain and repair the Counter Unit in
a good and safe working order and condition, and in accordance with
manufacturer's recommended instructions and procedures and the requirements of
any applicable insurance or manufacturer's warranty and of any governmental
authority having jurisdiction over the Counter Unit during the Term of this
Agreement. NBO will provide, at its own expense, all service, inspection,
substitutions, materials and labor necessary for the proper use, repair,
operation and maintenance of the Counter Unit. In addition, NBO will provide
technical support, as well as training of Owner's employees, agents and
contractors in all aspects of the use of the Counter Unit, at all times during
the Term of this Agreement. All obligations of NBO under this Paragraph 5 shall
continue during any extension of this Agreement. NBO warrants that repair and
maintenance performed by NBO under this Agreement will be performed competently
and in accordance with industry practices, and the Counter Unit and service
parts furnished by NBO will be free of defects in material and manufacture upon
installation thereof at the Center.
Owner will grant to NBO personnel full and free access to the Counter Unit
to provide installation, operation, maintenance, repair and training services
(subject to Owner's security regulations), including, but not limited to,
telephone and electrical service and all related wiring and necessary systems
related thereto.
6. TERM. The term of this Agreement shall commence on __________________,
2000 (the "Commencement Date") and shall terminate on
___________________________ (the "Termination Date"), unless earlier terminated
by Owner, in its sole discretion, including, but not limited to, in accordance
with the terms and provisions of Paragraphs 15 or 18 of this Agreement. Owner
shall also have the option to extend the original Term for two (2) one-year
periods upon written notice to NBO given no less than sixty (60) days prior to
the expiration of the then current Term.
7. GIFT CERTIFICATES. NBO will supply Owner with blank gift certificate
paper stock. Owner will be responsible for monitoring the supply of the
certificates at the Counter Unit and for the restocking of the Counter Unit with
additional stock of the certificates to be supplied by NBO. NBO will supply such
stock upon the request of Owner, at no additional cost to Owner. Each gift
certificate shall bear a legend that states:
This gift certificate represents an interest in funds held for the
benefit of the holder of this gift certificate until redemption for
merchandise. Interest on such funds shall be paid to Neighborhood Box
Office, Inc., for administrative services.
The gift certificates to be dispensed through the Counter Unit will be in
the form of an executable bank check that can be redeemed for merchandise or
services at any retail establishment in the Center and deposited into the
account of such retail establishment. The design of the gift certificate shall
be determined by NBO provided the same is reasonably acceptable to Owner. Upon
notice from Owner not more often than one time per year, NBO shall change the
appearance of the gift certificate, provided NBO shall not be required to change
the paper stock it uses. Owner shall refer all inquiries regarding the gift
certificates to NBO. NBO shall arrange for a reputable bank to process the gift
certificate transactions (i.e., deposit into a segregated account the funds in
connection with the gift certificates and transfer of such deposited funds to
the retail establishments upon redemption of the gift certificates) as further
described in the Banking Terms, attached hereto as Exhibit A and made a part
hereof, and any and all bank processing fees shall be paid in accordance with
the Banking Terms. NBO will establish the bank accounts in accordance with the
Banking Terms. All bank accounts established pursuant to this Agreement in which
funds for redemption of gift certificates are held shall clearly indicate that
NBO and Owner have no ownership interest in such funds
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deposited in the accounts and that such funds are for the benefit of the holders
of gift certificates, subject to redemption and applicable abandoned property
and escheatment laws. NBO shall retain all interest and other income earned on
the bank accounts described in the Banking Terms as a fee for services rendered
to the holder of the gift certificate in connection with the issuance,
processing redemption and other administration of the gift certificates. All
gift certificates will be issued through the Counter Unit using a credit card or
standard debit card or by payment of cash. NBO will guarantee the redemption
funds to the retail establishments as long as said establishment follows the
gift certificate redemption procedures. Such redemption procedures shall be
mutually agreed upon by Owner and NBO and provided in writing to participating
retail establishments in the Center by NBO. NBO shall be solely responsible for
resolving any disputes which may arise with any retail establishment with
respect to the gift certificates. Neither NBO nor Owner has any interest in any
of the funds received through the use of the Counter Unit other than the payment
of fees as provided herein or in any other agreement between Owner and NBO. NBO,
at its sole cost and expense, shall secure all necessary permits, authorizations
and approvals which may be required by any and all governmental authorities with
respect to the installation, use and operation of the Counter Unit, and shall at
all times comply with all governmental rules, regulations, ordinances, statutes
and laws now, or hereinafter in force, pertaining to the Counter Unit and NBO's
installation, maintenance and repair thereof.
8. CREDIT CARD FEES. Owner agrees to pay all credit card fees for
transactions at the Counter Unit, including via the Internet and in connection
with corporate orders, paid for by nationally recognized credit card companies
as have been approved by Owner in its sole discretion. Credit card fees charged
by any credit card companies which have not been approved by Owner shall be
payable by NBO in their entirety. NBO will bill Owner on a monthly basis for
such credit card fees, and Owner shall pay such amount within thirty (30) days
following its receipt of the invoice. NBO agrees to submit such backup
documentation as Owner may reasonably require in order to verify such fees.
9. ACCOUNTING REQUIREMENTS FOR GIFT CERTIFICATE FUNDS. NBO shall reimburse
all redeemed gift certificates in accordance with this Agreement, and as set
forth in the Banking Terms, and shall administer all refunds in accordance with
and as set forth in the Banking Terms. Any breach by NBO or any of its
Affiliates (as defined hereinafter) of the Banking Terms, or any similar
agreement affecting any account into which the funds from the issuance of any
gift certificates has been deposited, shall be deemed an Event of Default under
this Agreement, and Owner shall be entitled to exercise any and all of its
remedies under this Agreement, as well as all remedies available to Owner at law
or in equity. In addition, any funds attributable to unredeemed gift
certificates shall be forfeited to the appropriate governmental authority, under
the applicable state abandoned property or escheat laws. This provision shall
survive the termination of this Agreement and Owner shall retain a continuing
right to audit NBO's books and records with respect to this Agreement.
10. COMPETING BUSINESS. Owner shall not allow a Competing Business (as
hereinafter defined) to operate in the Center during the Term of this Agreement.
A "Competing Business" shall mean a kiosk or other facility or operation, which
issues and sells gift certificates from counter units or via the Internet, to
corporate or consumer users for purchases in the Center. In no event shall the
issuance of gift certificates by retail establishments or by any automated
teller machines in the Center be deemed a Competing Business.
A Competing Business shall be considered to be operating with Owner's
consent only if: (i) Owner after the date of this Agreement entered into a lease
or other occupancy agreement with the tenant in question expressly permitting it
to engage in the Competing Business, or (ii) Owner's consent is required for any
change to a tenant's permitted use and Owner can withhold consent without being
required to be reasonable, and Owner consents, after the date of this Agreement,
to change such use to permit such tenant to be a Competing Business. A Competing
Business shall not be considered to be operating with Owner's consent if the
Competing Business has been permitted to assume a lease or operate its business
based upon
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or as a result of a bankruptcy, insolvency, or similar action or if the
Competing Business has been permitted to operate as the result of an action or
order by a court.
11. INTERNET ACCESS TO GIFT CERTIFICATES. NBO will arrange, at its sole
cost and expense, for patrons at the Center to procure mall gift certificates
from Owner's internet website. Any costs incurred in connection with
establishing such service shall be the obligation of NBO. Notwithstanding the
foregoing, Owner shall bear the programming charge regarding establishing a
connection to "PC Menu" in connection with use of the Counter Unit.
12. ADVERTISING. NBO shall have the right to engage in an on-going program
of advertising and promotion of the Counter Units at the Center to tenants at
the Center, retail customers, corporate customers and Internet customers of the
Center. Owner agrees to continue its current advertising program for mall gift
certificates at the Center, and agrees to use reasonable efforts to assist NBO,
so long as same is at no cost to Owner, in its advertising and promotion of the
Counter Units as set forth above. NBO will include a statement in all marketing
material to tenants at the Center that all obligations in connection with the
issuance and redemption of the gift certificates are the obligations solely of
NBO, and that Owner has no obligations, monetary or otherwise, in the redemption
process involved in connection with the gift certificates.
13. SIGNAGE. NBO shall not inscribe, paint or affix any sign,
advertisement, display or notice on any part of the Center or the Counter Unit
except for a sign identifying the Counter Unit as a gift certificate machine
which sign shall be subject to Owner's prior approval.
Owner shall have the right to prohibit any sign, advertisement, display or
notice of NBO wherever appearing which in Owner's opinion tends to impair the
reputation or appearance of the Center or is otherwise offensive or improper,
and upon written notice from Owner, NBO shall discontinue or remove such sign,
advertisement, display or notice. NBO shall promptly remove any sign which is
other than as set forth above, upon receipt of written notice from Landlord,
failing which Landlord may remove such sign, advertisement, display or notice at
Tenant's expense. NBO shall not use the name of the Center for any purpose other
than as the address of the business conducted by NBO at the Center.
14. INSURANCE; INDEMNITY.
(a) NBO shall obtain and maintain, during the entire Term hereof,
commercial general liability insurance coverage, including broad form
contractual liability and completed operations coverage with limits of liability
for personal injury to or death of persons and damage to or loss or destruction
of property with a single limit of not less than $2,000,000 per occurrence. All
insurance required hereunder shall be provided by responsible insurers rated at
least A and X in the then current edition of Best's Insurance Guide and shall be
licensed in the State in which the Center is located. NBO's insurance shall be
primary, and any insurance maintained by Owner or any other additional insureds
hereunder shall be excess and noncontributory.
(b) NBO shall provide Owner with a certificate of insurance naming
Owner, Owner's managing agent ("Agent") and such other parties as Owner may from
time to time designate as additional insureds and showing the required insurance
coverage is in full force and effect at all times during the Term hereof and,
when requested by Owner, evidence that all premiums for such coverage have been
paid in full. The certificate shall provide that coverage shall not be cancelled
or reduced without thirty (30) days' prior notice to Owner. All insurance shall
be issued by reputable companies licensed in the State in which the Center is
located.
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(c) NBO shall indemnify, defend and hold harmless Owner, Agent and
their respective present and former general and limited partners, members,
affiliates, trustees, beneficiaries, directors, officers, agents and employees
from and against any claims, demands, losses, damages, injuries, liabilities,
expenses, judgments, liens, encumbrances, orders and awards, together with
reasonable attorneys' fees and expenses arising out of the ownership or
operation of the Counter Unit, including, without limitation, those arising on
account of (i) injury to (including, without limitation, advertising and libel
injury) or death of any person, including agents and employees, (ii) loss of or
damage to property, (iii) claims of subcontractors, suppliers or workmen, (iv)
royalties, license fees and claims for patent and copyright infringement, and
(v) claims against Owner for indemnity or contribution arising by reason of any
of the foregoing.
15. DEFAULT.The following shall be an "Event of Default" hereunder: (i)
NBO shall default in fulfilling any covenant contained in this Agreement,
including, but not limited to, NBO's failure to reimburse retail establishments
at the Center for redeemed gift certificates, and such default shall continue
unremedied for a period of thirty (30) days after receipt of notice by NBO
specifying the default or if such default cannot reasonably be cured within a
period of thirty (30) days, if NBO shall have failed to commence the cure of
such default within the thirty (30) day period and thereafter diligently
prosecute same to completion within a reasonable time thereafter not to exceed
ninety (90) days, (ii) (a) NBO makes any general assignment for the benefit of
creditors, (b) a petition to have NBO adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy or insolvency
is filed by or against NBO (unless, in the case of a petition filed against NBO
the same is dismissed within sixty (60) days), (c) a trustee or receiver is
appointed to take possession of substantially all of NBO's assets or of NBO's
interest in this Agreement, where possession is not restored to NBO within
thirty (30) days, (d) substantially all of NBO's assets or NBO's interest in
this Agreement are subject to attachment, execution or other judicial seizure,
(e) a meeting of NBO's creditors or any class thereof is convened for the
purpose of effecting a moratorium upon or composition of its debt or (f) NBO is
insolvent or admits its inability to pay its debts as they mature or (iii) there
is a default beyond any applicable cure period, if any, by NBO or any affiliate
of NBO under any other lease or agreement with Owner or its beneficiary, if
applicable, or any Affiliate (as hereinafter defined) of Owner or its
beneficiary, if applicable. Upon the occurrence of an Event of Default, Owner
may terminate this Agreement. Failure by NBO to comply with the same term or
condition of this Agreement on two (2) occasions (after notice thereof on each
such occasion) during any twelve (12) month period shall cause any failure to
comply with such term or condition during the succeeding twelve (12) month
period, at Owner's option, to constitute an incurable Event of Default, thereby
entitling Landlord to immediately terminate this Agreement. The notice and cure
period provided herein are in lieu of, and not in addition to, any notice and
cure periods provided by law. For purposes hereof, an "Affiliate" of Owner shall
mean any entity controlled by, controlling or under common control with Owner,
Owner's beneficiary or any majority partner in Owner or Owner's beneficiary.
NBO's obligations under this Agreement accruing prior to any termination hereof
shall survive such termination.
16. LIMITATION OF OWNER'S LIABILITY. Any liability of Owner for the
purposes hereof (including without limitation Owner's and its beneficiary's
partners, members, directors, officers, affiliates, agents and employees) to NBO
shall be limited to the interest of Owner in the Center and NBO agrees to look
solely to such interest for the recovery of any judgment, it being intended that
Owner shall not be personally liable for any deficiency or judgment.
17. NOTICES. Notices and demands required or permitted to be given
hereunder shall be in writing given by personal delivery, overnight courier or
be sent by certified mail, return receipt requested, addressed, if to Owner, at
the address of Owner listed in Paragraph 1 above and to the Center at the
address listed in Paragraph 1 above, Attn: Management Office, or such other
address as Owner may designate by notice to NBO from time to time, and, if to
NBO, at the address of NBO listed in Paragraph 1 above. Notices and demands
shall be deemed to have been given when mailed or deposited with the overnight
courier or, if made by personal delivery, then upon such delivery.
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18. OWNER'S RIGHT TO PERFORM. If NBO shall fail to comply with and perform
any of NBO's obligations herein contained and an Event of Default shall have
resulted from such failure, then Owner shall have the right, but not be
obligated, to perform any such obligations, and NBO shall pay to Owner on
demand, as additional rent, a sum equal to the amount expended by Owner in the
performance of such obligations.
19. TRANSFER BY OWNER. In the event Owner conveys its interest in the
Center to another person or entity, Owner shall assign this Agreement to the
transferee. Upon such conveyance and assignment, Owner will thereafter no longer
have any liability hereunder. Owner's liability hereunder shall be limited to
Owner's interest in the Center, and NBO agrees that Owner, Agent and their
respective partners of such partners, officers, affiliates, directors, trustees,
beneficiaries, and shareholders shall have no personal liability hereunder.
20. MISCELLANEOUS. Owner reserves the right at any time to; change the
location or character of or make alterations in or additions to the common areas
or other parts of the Center and otherwise alter, repair or reconstruct or
change the common areas or other parts of the Center. The failure of Owner to
insist upon performance by NBO of any of the terms, conditions and covenants
hereof shall not be deemed a waiver of any subsequent breach or default in the
terms, conditions and covenants herein contained. All obligations (including
indemnity obligations) herein shall survive the expiration of this Agreement.
Nothing contained herein shall be deemed or construed by the parties hereto, nor
by any third party, as creating the relationship of principal and agent or of
partnership or of joint venture between the parties hereto. This Agreement shall
be construed in accordance with the laws of the state in which the Center is
located. The submission of this Agreement for examination or execution does not
constitute an offer and this Agreement shall become effective only upon
execution by Owner and delivery thereof to NBO.
This Agreement contains all of the agreements between the parties hereto
or their successors in interest with respect to the subject matter hereof. The
terms, covenants and conditions contained herein shall inure to the benefit of
and be binding upon the parties, and their respective permitted successors and
assigns. Neither party shall record this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
OWNER:
URBAN ROSEVILLE LLC,
a Delaware limited liability company
By: Urban Retail Properties Co.,
as Agent
By:
-------------------------------
Name:
-----------------------------
Title:
------------------------------
NBO:
NEIGHBORHOOD BOX OFFICE, INC.,
a Utah corporation
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Chairman/CEO
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EXHIBIT A
Banking Terms
ATTACHED TO AND FORMING A PART OF PURCHASE AGREEMENT AND SERVICE
CONTRACT DATED AS OF _____________________, 2000, BY AND BETWEEN
NEIGHBORHOOD BOX OFFICE, INC., AND URBAN ROSEVILLE LLC.
After the Effective Date, NBO and Owner shall take the following actions and
implement the following procedures relating to the establishment, maintenance
and operation of certain bank and investment accounts described below.
1. Funds from Issuance of Gift Certificates. Under Section 7 of the Agreement,
Owner shall collect cash, personal bank checks, credit card Funds and debit
card credits (collectively, "Funds") in connection with issuances
("Issuances") of Center gift certificates through the Counter Unit. NBO
shall have the right and the duty to transfer and disburse such Funds in
accordance with its agreements, covenants and obligations ("Obligations")
set forth in this Agreement (including this Exhibit A) [and the Lease].
2. [**]
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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[**]
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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[**]
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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[**]
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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SCHEDULE 1 TO EXHIBIT A
FORM OF DEPOSIT REPORTING AGREEMENT
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SCHEDULE 2 TO EXHIBIT A
ACCOUNT AND SECURITY AGREEMENT (INVESTMENT ACCOUNT)
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ACCOUNT AND SECURITY AGREEMENT
(INVESTMENT ACCOUNT)
THIS ACCOUNT AND SECURITY AGREEMENT (INVESTMENT ACCOUNT) (this
"Agreement") is made and dated as of this ______ of __________________, 2000 by
and between NEIGHBORHOOD BOX OFFICE, INC., a Utah corporation ("Account
Holder"), and URBAN RETAIL PROPERTIES CO., a Delaware corporation ("Agent"), as
agent for Urban Roseville LLC, a Delaware limited liability company ("Mall
Owner").
R E C I T A L S
A. Account Holder has entered into a certain Lease for Gift Certificate
Machine (the "Lease") dated as of __________________________, as well as a
certain Purchase Agreement and Service Contract (the "Purchase Agreement") dated
as of ______________________________________, all relating to the operation of
remote gift certificate distribution machines at The Galleria at Roseville,
located in Roseville, California (the "Mall").
B. [**]
C. [**]
D. [**]
E. [**]
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[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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A G R E E M E N T
NOW, THEREFORE, in consideration of the above Recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Account Holder and Agent hereby agree as follows:
[**]
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[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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5. [**]
6. [**]
7. Warranty of Title. Account Holder represents, warrants and covenants
that Account Holder is the owner of the Collateral (or, in the case of
after-acquired Collateral, at the time Account Holder acquires rights in the
Collateral, will be the owner thereof) except to the extent of the beneficial
ownership interests of the Funds by the holders of gift certificates.
8. Covenants of Account Holder. [**]
9. Notification of Account Debtor. Account Holder shall deliver to Agent
a copy of completed account application and all Investment Account agreements
concurrently with Account Xxxxxx's execution of this Agreement. Account Holder
shall also promptly deliver copies of all Investment Directions made by Account
Holder to FSVK.
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[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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10. Authorized Action by Agent. While an Event of Default is continuing,
Account Holder hereby irrevocably authorizes Agent to do (but Agent shall not be
obligated to do and shall incur no liability to Account Holder or any third
party for failure so to do) any act which Account Holder is obligated by this
Agreement to do, and to exercise such rights and powers as Account Holder might
exercise with respect to the Collateral, including, without limitation, the
right to: (a) collect by legal proceedings or otherwise and endorse, receive and
receipt for all dividends, interest, payments, proceeds and other sums and
property now or hereafter payable on account of the Collateral; (b) enter into
any extension, reorganization, deposit, merger, consolidation or other agreement
pertaining to, or deposit, surrender, accept, hold or apply other property in
exchange for the Collateral; (c) insure, process and preserve the Collateral;
(d) transfer the Collateral to its own or its nominee's name; and (e) make any
compromise or settlement, and take any reasonable action it deems advisable,
with respect to the Collateral consistent with the terms of this Agreement, the
Lease and the Purchase Agreement. Account Xxxxxx agrees to reimburse Agent upon
demand for any reasonable costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements, Agent may incur while acting
hereunder, all of which costs and expenses are included in the Obligations
secured hereby. It is further agreed and understood between the parties hereto
that such care as Agent gives to the safekeeping of its own property of like
kind shall constitute reasonable care of the Collateral when in Agent's
possession; provided, however, that Agent shall not be required to make any
presentment, demand or protest, or give any notice and need not take any action
to preserve any rights against any prior party or any other person in connection
with the Obligations or with respect to the Collateral.
11. Events of Default; Remedies.
a. An "Event of Default" shall be deemed to have occurred under this
Agreement upon (i) the transfer of any Funds to any account other than the FSB
Depository Account; (ii) Account Holder's failure to make any withdrawal from
the Investment Account in accordance with the Obligations or this Agreement and
the continuation of such default for a period of five (5) days; (iii) Account
Holder's failure to perform any other Obligation and the continuation of such
default for a period of thirty (30) days after written notice from Agent;
provided, however, that if despite all diligence such failure cannot reasonably
be cured within such thirty (30) day period, then no Event of Default shall be
deemed to have occurred hereunder so long as Account Holder has commenced such
cure within such thirty (30) day period and thereafter diligently prosecutes
such cure to completion; and, provided, however, that nothing contained in the
foregoing clauses (i), (ii) or (iii) shall be construed to grant any additional
notice or cure rights to Account Holder in the event that such failure would
otherwise constitute an "Event of Default"; or (iv) the occurrence of an "Event
of Default" under the Lease or the Purchase Agreement.
b. Upon the occurrence of any such Event of Default, Agent may, at its
option, and without notice to or demand on Account Holder and in addition to all
right and remedies available to Agent under the Leases or the Purchase
Agreement, do any one or more of the following without any advertisement or
notice to or authorization from Account Holder (all of which advertisements,
notice and/or authorizations are hereby expressly waived): (i) make a full
withdrawal or one or more partial withdrawals from the Investment Account in
order to take possession of the Collateral or distribute the Collateral in
accordance with the Obligations, including but not limited to redemption of the
gift certificates to the holders thereof; (ii) interplead the Investment Account
into a court having jurisdiction over Account Holder and claimants to the
Collateral, including but not limited to the holders of the gift certificates;
(iii) recover from Account Holder all costs and expenses, including, without
limitation, reasonable attorneys' fees, incurred or paid by Agent in exercising
any right, power of remedy provided by this Agreement or by law; and (iv)
exercise any other right or remedy available to Agent under applicable law or in
equity.
12. Further Acts. Account Holder hereby agrees, at its own expense, to
execute and deliver, from time to time, any and all further, or other,
instruments, and to perform such acts, as Agent may reasonably request to effect
the purposes of this Agreement and to secure to Agent the benefits of all
rights,
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authorities and remedies conferred upon Agent by the terms of this Agreement. In
the event that at any time hereafter, due to any change in circumstances,
including (without limitation) any change in any applicable law, or any decision
hereafter made by a court construing any applicable law, it is, in the opinion
of counsel for Agent, necessary or desirable to file or record this Agreement or
any financing statement or other instrument or document with respect to this
Agreement or the pledge made hereunder, Account Xxxxxx agrees to pay all fees,
costs and expenses of such recording or filing and to execute and deliver such
instruments as may be necessary or appropriate to make such filing or recording
effective.
13. Cumulative Rights. The rights, powers and remedies of Agent under
this Agreement shall be in addition to all rights, powers and remedies given to
Agent by virtue of any statute or rule of law, the Lease or the Purchase
Agreement, all of which rights, powers and remedies shall be cumulative and may
be exercised successively or concurrently without impairing Agent's security
interest in the Collateral.
14. Waiver. Any forbearance or failure or delay by Agent in exercising
any right, power or remedy shall not preclude the further exercise thereof, and
every right, power or remedy of Agent shall continue in full force and effect
until such right, power or remedy is specifically waived in a writing executed
by Agent. Account Holder waives any right to require Agent to proceed against
any person or to exhaust the Collateral or to pursue any remedy in Agent's
power.
15. Binding Upon Successors. All rights of Agent under this Agreement
shall inure to the benefit of its successors and assigns. Except in connection
with any "Transfer" permitted under the Lease, Account Holder shall not directly
or indirectly assign or otherwise transfer the Collateral or any of its rights,
obligations or duties under this Agreement without the prior written consent of
Agent, which consent may be given or withheld in its sole and absolute
discretion. All obligations and duties of Account Holder under this Agreement
shall bind its heirs, executors, administrators, and permitted successors,
assigns and transferees.
16. Notices. All notices, demands and requests hereunder shall be in
writing and shall be deemed to have been properly given if personally delivered,
or sent by United States certified or registered mail, return-receipt requested,
postage prepaid, or by Federal Express or other nationally recognized overnight
courier addressed to the parties at the respective addresses set forth below, or
such other address as any of the parties may from time to time designate by
written notice given as herein required. Notices, demands and requests given in
the manner aforesaid shall be deemed sufficiently served or given for all
purposes hereunder upon actual delivery or the date of delivery as shown on the
return receipt:
If to Agent: URBAN RETAIL PROPERTIES CO.
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-1957
Attn: Director of Marketing
With copy to: PIRCHER, XXXXXXX & XXXXX
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-1575
Attention: Real Estate Notices--EJML
If to Account Holder: NEIGHBORHOOD BOX OFFICE, INC.
Suite 000
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
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17. Choice of Law. This Agreement shall be construed in accordance with
and governed by the laws of the state in which the Investment Account is
located, without regard to conflicts of law principles.
18. Term; Notice. This Agreement shall remain in full force and effect
until the termination or expiration of the Lease or Purchase Agreement. Promptly
after execution of this Agreement and request by Agent, Account Xxxxxx agrees to
give to Agent a copy of this Agreement together with such additional
instructions or information as Agent may request to honor the terms hereof.
19. Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original and all of which together shall constitute a
single document.
IN WITNESS WHEREOF, Account Holder and Agent have caused this Agreement to
be executed the day and year first written above.
ACCOUNT HOLDER:
NEIGHBORHOOD BOX OFFICE, INC.,
a Utah corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AGENT:
URBAN RETAIL PROPERTIES CO.,
a Delaware corporation,
as agent for Mall Owner
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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EXHIBIT A
FORM OF INVESTMENT DIRECTION
{DATE}
Xxxxxxx X. Xxxxxxx
First Security Xxx Xxxxxx, Inc.
00 Xxxx 000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Reference: Purchase of security (Account number _____________ )
Dear Xx. Xxxxxxx:
Please purchase the following security for our investment account noted
above:
[**]
If you have any questions please call me at 000-0000 Extension 101.
Sincerely,
Xxxx Xxxxxxxxx, CPA/CFO
Neighborhood Box Office, Inc.
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.