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EXHIBIT 10.12
CABLE TELEVISION AND TELEPHONE SERVICE AGREEMENT
THIS CABLE TELEVISION AND TELEPHONE SERVICE AGREEMENT (this
"Agreement") is entered into this 12th day of September, 1997, by and between
Park 'N View, Inc., a Delaware corporation ("PNV"), with its headquarters at
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ #▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Petro Stopping
Centers, L.P., a Delaware limited partnership ("Operator"), with its
headquarters at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS, Operator currently owns or operates (or has entered into
franchise agreements with certain entities entitling them to operate)
full-service travel plaza truckstops which are located at the addresses listed
on Schedules 1A and 1B hereto; all of the aforesaid hereinafter individually
being referred to as a "Truckstop" and collectively being referred to as either
the "Truckstops" or the "Petro Network"; and
WHEREAS, PNV has designed and developed the concept and equipment ("the
System") to (i) enable truck drivers to: (a) receive and/or have access to cable
television services and telecommunications services; and (b) provide such truck
drivers programming consisting of video and audio services, and telephone, fax
or other data services while remaining in their vehicles parked at the
Truckstop; and (ii) sell advertising to be broadcast over the System (the
specific services set forth in (i) and (ii) above are hereinafter collectively
referred to as the "Services"); and
WHEREAS, Operator desires to engage PNV to install the System and
provide the Services at (i) the Initial Sites (as defined in Section 1(a)); and
(ii) perhaps at all of the additional Truckstops in the Petro Network,
contingent upon Petro electing to have PNV install the System and provide the
Services at such Truckstops pursuant to Section 1 (b).
NOW THEREFORE, in consideration of the mutual promises and covenants
and subject to the terms and conditions contained herein, Operator and PNV
(hereinafter collectively being referred to as the "Parties"), intending to be
legally bound, hereby mutually agree as follows:
1. Purpose.
(a) Installation at Initial Sites. The Parties hereby
agree that PNV shall, within sixty (60) days of the date of this Agreement,
commence installation of the System at Operator's Truckstops located at (i) ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and I-10; (ii) ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇▇▇; and (iii) ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ (collectively the "Initial Sites"). PNV shall complete
installation of the System and commence provision of the Services at the Initial
Sites within 60 days of
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commencement of installation subject to Operator's observance and performance of
its duties and obligations under this Agreement and Operator's reasonable
cooperation with PNV to facilitate the installation. PNV shall in all instances
install the PNV Equipment in a workmanlike and efficient manner, with the least
interference with the operation of the Truckstop as is possible in the best
efforts of PNV. Without limiting the foregoing, PNV agrees that during the
course of installation of the System at the Initial Sites, PNV shall: (i) not
cause significant disruption to the traffic flow or the availability of parking
spaces in the parking lots of the Initial Sites; and (ii) install the
underground wire in the parking lots in stages in order to minimize the number
of parking spaces which will be inaccessible at any one time. In no event shall
any single row of parking spaces remain completely inaccessible for more than
two (2) days. Notwithstanding the foregoing, the Parties agree that while PNV
shall use its best efforts to complete the installation of the System at the
Initial Sites within the foregoing time frame, PNV's obligations to install the
System at a particular Truckstop shall be subject to: (i) completion of
satisfactory engineering and environmental surveys at such Truckstop; (ii)
confirmation that no part of the System crosses a public right of way adjacent
to such Truckstop; (iii) receipt from Operator of all requested maps, blue
prints and other relevant information relating to such Truckstop on a timely
basis; and (iv) PNV being unable to complete any such installation within said
time because of any of the following: floods; civil unrest; acts of God; war;
governmental interference or embargoes; labor strikes; failure to supply fuel,
power, materials or supplies; transportation delays by third parties; or any
other cause (whether or not similar to those described in this Section 1) beyond
the control of PNV; so long as in any case PNV uses its best efforts to
recommence its performance of the installation whenever and to whatever extent
possible without delay and such nonperformance does not otherwise constitute a
breach of this Agreement or grounds for termination of this Agreement. In the
event PNV fails to complete any installation within a reasonable period of time
after the expiration of the aforesaid time frame, Operator may elect to
terminate this Agreement, in whole or as to the particular Truckstop or
Truckstops in question. Operator may elect to extend the term of this Agreement
as to the affected Truckstop for a period equal to the delay in completion of
the installation.
(b) Installation at Additional Truckstops. Within ninety
(90) days of the completion of the installation of the System and commencement
of the Services at all of the Initial Sites, Petro shall provide PNV with
written notice (the "Written Notice") as to whether Petro elects to have PNV
install the System and provide the Services at all of the additional Truckstops
listed on Schedules 1A and 1B. If Petro elects not to have PNV install the
System and provide the Services at the additional Truckstops listed on Schedules
1A and 1B, the Parties will continue to operate the Initial Sites pursuant to
the terms of this Agreement. If Petro elects to have PNV install the System and
provide the Services at all of the additional Truckstops listed on Schedules 1A
and 1B, PNV shall, subject to Operator's observance and performance of its
duties and obligations under this Agreement and Operator's reasonable
cooperation with PNV to facilitate the installation: (i) complete the
installation of the System and commence provision of the Services at the
Truckstops listed on Schedule 1A within
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eighteen (18) months of the date of receipt of the Written Notice from Petro;
and (ii) complete the installation of the System and commence provision of the
Services at the Truckstops listed on Schedule 1B subject to the terms of this
Agreement, including Section 1(c). PNV shall, in all instances, install the PNV
Equipment in a workmanlike and efficient manner, with the least interference
possible with the operation of each such Truckstop in the best efforts of PNV.
Without limiting the foregoing, during the course of installation of the System
at each Truckstop, PNV shall not cause significant disruption to the traffic
flow or the availability of parking spaces in the parking lots at each
Truckstop. PNV shall install the underground wire in the parking lots in stages
in order to minimize the number of parking spaces which will be inaccessible at
any one time. In no event shall any single row of parking spaces remain
completely inaccessible for more than two (2) days. Notwithstanding the
foregoing, the Parties agree that while PNV shall use its best efforts to
complete the installation of the System at all of the Truckstops constituting
the Petro Network within the foregoing time frame, PNV's obligations to install
the System at a particular Truckstop shall be subject to: (i) completion of
satisfactory engineering and environmental surveys at such Truckstop; (ii)
confirmation that no part of the System crosses a public right of way adjacent
to such Truckstop; (iii) receipt from Operator of all requested maps, blue
prints and other relevant information relating to such Truckstop on a timely
basis; and (iv) PNV being unable to complete any such installation within said
time because of any of the following: floods; civil unrest; acts of God; war;
governmental interference or embargoes; labor strikes; failure to supply fuel,
power, materials or supplies; transportation delays by third parties; or any
other cause (whether or not similar to those described in this Section 1) beyond
the control of PNV; so long as in any case PNV uses its best efforts to
recommence its performance of the installation whenever and to whatever extent
possible without delay and such nonperformance does not otherwise constitute a
breach of this Agreement or grounds for termination of this Agreement. In the
event PNV fails to complete any installation within a reasonable period of time
after the expiration of the aforesaid time frame, Operator may elect to
terminate this Agreement, in whole or as to the particular Truckstop or
Truckstops in question. Operator may elect to extend the term of this Agreement
as to the affected Truckstop for a period equal to the delay in completion of
the installation.
(c) Installation at Franchisee Sites. PNV acknowledges
and agrees that, upon receipt of Written Notice from Operator to extend the
System and the Services to the Truckstops listed on Schedule 1B, which are
operated by a franchisee of Operator (the "Franchisee"), other than Highway
Services Ventures, Inc. or Welsh, Inc. (both of which have already entered into
agreements with PNV), PNV shall, subject to the Franchisee entering into an
agreement with PNV substantially identical to this Agreement (and as to which
Operator shall have consented to writing), install the System and provide the
Services to the Truckstops owned or operated by the Franchisee (which are listed
on Schedule 1B) within twelve (12) months of entering into an agreement with the
Franchisee. Notwithstanding the foregoing, the agreement with any Franchisee may
be for a term of not to exceed 10 years and need not contain the financial
milestones set forth in Section 16(b).
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2. Installation of Equipment.
(a) PNV shall, at its sole cost and expense, and in the
manner herein provided, install and continually maintain at each Truckstop at
which the Services are to be provided all equipment necessary to provide the
Services including the following:
(i) equipment necessary for the provision and
distribution of the Services.
(ii) outlet ports to parking spaces to provide
users with access to the Services.
(iii) such other equipment or services as may be
agreed upon by PNV and Operator, including, without limitation, the
provision of AC power to parking spaces at certain of the Truckstops.
Prior to installing such additional equipment or providing such
additional services, PNV and Operator shall mutually agree to a
reasonable adjustment to the profit allocations set forth in Section 8
in order to reflect PNV's differing profit margins and increased
capital costs with respect to the installation of such additional
equipment and the provision of such additional services at the
Truckstops.
All of the foregoing equipment as currently used by PNV is described on Schedule
2 hereto and is hereinafter, together with any additions or deletions to said
equipment, collectively referred to as the "PNV Equipment". PNV may make
additions to and deletions from the PNV Equipment to be installed at each
Truckstop for the purposes of upgrading and repairing the System. PNV shall
provide the Services to at least 75% of the truck parking spaces located at each
Truckstop at which it installs the System. The Parties shall mutually determine
the precise number and location of the truck parking spaces at which the
Services shall be provided, taking into account such factors as the cost of
construction and implementation, the layout of the parking facilities, the usage
of particular parking rows to drop trailers and such other factors as the
Parties may deem relevant. After installation of the System at a Truckstop, PNV
may not expand the System to provide the Services to additional truck parking
spaces located at or added to such Truckstop without the prior written consent
of Operator.
(b) Operator shall make available to PNV a sufficient
area in which to install the PNV Equipment including: (i) such area as is
required for the installation of satellite dish(es); (ii) a secured
air-conditioned interior area of approximately 50 square feet for the
installation of the headend equipment and the telephone and related monitoring
equipment; and (iii) an area at the fuel desk and/or the travel store for
installation of the equipment required for activation of the Services
(hereinafter collectively referred to as the "Equipment Area"). PNV shall be
entitled to have continued access to the Equipment Area and all parking areas
for purposes of installing, repairing and monitoring the PNV Equipment, the
System and the
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Services. PNV may install and maintain in each Truckstop: (i) a bank of six (6)
television sets to be located in the hallway of the main building for purposes
of broadcasting, programming and advertising to solicit truckdrivers as
customers; (ii) a permanent message board below such bank of television sets;
(iii) three additional television sets for purposes of broadcasting, programming
and advertising, two of which shall be located in the diesel fuel island store
and one in the mall area near the telephones. Without the prior written consent
of Operator, PNV shall not be entitled to display any other banners or signs at
the Truckstops, other than newsletters, pamphlets, flyers and other printed
materials (the placement of which shall be agreed to by the Parties). If any
such television sets are in need of maintenance or repair, unless extenuating
circumstances exist, PNV shall within forty-eight (48) hours, dispatch a
designated repair technician to make the necessary repairs at PNV's cost.
(c) Prior to commencement of construction at any
Truckstop, PNV shall obtain Operator's approval of the methods and materials to
be used by PNV with respect to the installation of the System. PNV will repair
any damage to the Truckstop which is caused by PNV. However, PNV shall not be
responsible for any existing defects or deficiencies or the normal wear and tear
to the parking lot or the Truckstop. PNV shall not permit any contractors or
subcontractors, retained by or providing services on behalf of PNV, to place any
liens on any Truckstop for work performed pursuant to the installation,
operation or maintenance of the System.
(d) PNV shall install the PNV Equipment in a workmanlike
and efficient manner, without unreasonable interference with the operation of
each Truckstop. PNV shall on a timely basis secure, and continuously maintain in
full force and effect, all licenses, permits and approvals required by
governmental authorities with respect to the installation, operation and
maintenance of the System and providing the Services. Upon request by PNV,
Operator shall provide PNV with reasonable assistance (at PNV's expense) in
obtaining any such licenses, permits, or approvals.
(e) Within thirty (30) days of completion of the
installation of the System at a Truckstop, PNV shall provide Operator with
written notice of the date on which the sale of the Services shall commence at
each such Truckstop (hereinafter referred to as the "Truckstop Service Date").
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3. Rights and Duties of The Parties With Respect To The PNV
Equipment.
(a) Notwithstanding the fact that certain parts of the
PNV Equipment may be affixed to each Truckstop, the PNV Equipment shall not
become a fixture thereto and shall remain the property of PNV. Operator
acknowledges that the System, the Services and the PNV Equipment and the manner
of its operation and installation are proprietary to PNV. Accordingly, Operator
shall use its reasonable best efforts to insure that all material confidential
information and data concerning the System, the Services and the PNV Equipment
shall not be divulged, and (except in the case of emergency) that access to the
System and the PNV Equipment shall not be given to any person or persons other
than personnel authorized by PNV.
(b) If Operator re-asphalts or changes the layout of the
parking lot of a Truckstop, PNV shall be responsible for removal and
reconnection of the PNV Equipment to the extent necessary to facilitate such
work. Operator shall provide PNV with at least 90 days prior written notice
before commencement of such work. Operator shall make reasonable efforts not to
cause PNV to remove any underground cable pursuant to such work. PNV and
Operator shall share in the cost of the removal and reconnection of the PNV
Equipment as follows: (i) prior to the first anniversary of the Truckstop
Service Date, Operator shall incur 80% of such costs (up to a maximum of
$50,000, with PNV being responsible for the balance of such cost); (ii) prior to
the second anniversary of the Truckstop Service Date, Operator shall incur 75%
of such costs (up to a maximum of $45,000, with PNV being responsible for the
balance of such cost); (iii) prior to the third anniversary of the Truckstop
Service Date, Operator shall incur 70% of such costs (up to a maximum of
$40,000, with PNV being responsible for the balance of such cost); (iv) prior to
the fourth anniversary of the Truckstop Service Date, Operator shall incur 65%
of such costs (up to a maximum of $35,000, with PNV being responsible for the
balance of such cost); (v) prior to the fifth anniversary of the Truckstop
Service Date, Operator shall incur 60% of such costs (up to a maximum of
$30,000, with PNV being responsible for the balance of such cost); (vi) after
the fifth anniversary of the Truckstop Service Date, Operator shall incur 50% of
such costs (up to a maximum of $25,000, with PNV being responsible for the
balance of such cost).
(c) If Operator closes down a Truckstop at which the
System has been installed, this Agreement shall terminate with respect to that
Truckstop but shall remain in full force and effect with respect to all other
Truckstops in the Petro Network then subject to this Agreement.
(d) Upon the termination of this Agreement, in whole or
as to any individual Truckstop, for any reason, PNV shall either: (i) remove, at
its sole cost and expense, any or all of the PNV Equipment from each affected
Truckstop; or (ii) sell or lease it to the Operator or its successors, nominees
or assignees if, in response to PNV's offer to sell, such parties are agreeable
to the purchase. If the System is to be removed, PNV shall restore each affected
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Truckstop as near as reasonably possible to the condition of such premises prior
to the installation of the System, normal wear and tear excepted, provided
however, PNV shall not remove any underground cables.
4. Programming and Telecommunications Services to Be Provided.
(a) PNV shall make the Services available on the System
as follows:
(i) PNV shall source and deliver a programming
package consisting of a minimum of eleven (11) channels of
entertainment programming. PNV shall pay the cost of all such
programming. The current programming schedule to be broadcast by PNV is
as set forth on Schedule 3. PNV may make changes to the programming
schedule from time to time, provided that, such changes are limited to
the substitution or addition of quality programming comparable to that
currently provided by PNV. Any other changes to the programming
schedule will require Operator's prior written consent.
(ii) In addition to the eleven (11) channel
entertainment lineup, there shall be other channels which shall be used
to provide a programming schedule and advertising. Net profits (after
payment of all "Directly Related Expenses" as defined in Section 8(b)
below) generated by advertising on such channels at each Truckstop
shall be divided as follows: 50% to PNV and 50% to Operator pursuant to
Section 8(c). All advertising revenue and other revenues and
commissions generated by these channels shall not be considered "Gross
Receipts" (as defined in Section 8(a)) for purposes of the Agreement.
(iii) PNV may, with the consent of Operator,
provide pay-per-view or other non-traditional cable channels or
services as part of the Services. The net profits (after payment of all
Directly Related Expenses) from such additional channels or services
shall be divided as follows: 50% to PNV and 50% to Operator. All
revenues and commissions generated by these channels shall not be
considered Gross Receipts for purposes of the Agreement.
(iv) PNV shall also provide telephone service to
certain parking slots at each Truckstop. The current telephone services
offered by PNV are set forth on Schedule 4. The fee schedules
established for the Services include a charge relating to phone usage
and such fees shall be considered Gross Receipts for purposes of this
Agreement. PNV shall, with Operator's prior written consent, have the
right to determine and make changes to the specific types of
telecommunication services provided to a particular Truckstop from time
to time, provided that, Operator shall have the right to offer drivers
any other telephone or telecommunication services in the parking lot
that is not transmitted by hard wire. If the Parties mutually agree to
permit
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PNV to provide phone service to areas of the Truckstops, other than the
parking lot, the Parties shall mutually agree as to the profit
allocations with respect to such Services. The nominated long distance
carrier will be AT&T unless the parties mutually agreed to change such
carrier and/or the other services.
5. Operation of the System and Sale and Promotion of the
Services.
(a) Initially, upon installation of the System at any
Truckstop, PNV shall train the Operator and its designated employees with
respect to the maintenance and operation of the System and the promotion of the
Services. PNV shall provide follow up training for Operator's personnel during
working hours with respect to the promotion of the Services, the operation of
the System, and the maintenance of the PNV Equipment as may be reasonably
requested by Operator from time to time. PNV shall, with the prior written
consent of Operator, be entitled to have its own employees or agents engage in
the promotion of the Services at any Truckstop, provided that PNV's employees
and agents shall not interfere with the operation of said Truckstop.
(b) Operator shall use its reasonable best efforts to
insure that the management, fuel desk employees and other personnel promote the
use of the Services by the truck drivers frequenting the Truckstop as mutually
agreed to prior to installation of the System. The Parties may mutually agree
from time to time to implement sales incentive programs for the fuel desk
employees and other personnel to promote the sale of the Services. The Parties
may share the cost of implementing and funding any such mutually agreed upon
incentive programs.
(c) Operator may develop and supply to PNV, at no cost to
PNV, certain advertising and promotional materials relating to the Petro
truckstop system to be run on a single dedicated channel to be made available to
Operator at no charge. Additional channels may be provided for Operator's use at
mutually agreed upon charges. PNV may also develop and supply to Operator, at no
cost to Operator, certain advertising and promotional materials relating to the
System and the sale of the Services. Subject to the terms of Section 2(b) and
each Party's approval and consent, Operator and PNV shall make reasonable
efforts to utilize and display such materials at each Truckstop in order to
promote the sale and promotion of the Services.
6. Maintenance of the PNV Equipment and the System.
(a) PNV shall maintain a good quality signal and
reception through the System comparable to the signal and reception supplied for
regular television programming and telecommunications services to home
consumers.
(b) The day to day maintenance of the System shall be
handled as follows:
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(i) Operator's trained staff members shall: (i) replace
failed connecting drop cables and accessories with equipment to be
furnished by PNV at its cost; (ii) maintain the cable and phone boxes
in the outside hookups in proper operating order, including cleaning
and removal of debris (i.e. oil, dirt, ice, snow, etc.); and (iii)
replace cable and phone connection outlets in the outside hookups with
equipment furnished by PNV at its cost.
(ii) If a mechanical problem arises other than through a
failed connecting cable, accessory or television set, Operator shall
contact PNV by telephone at PNV's office. Unless extenuating
circumstances exist, PNV shall, within forty-eight (48) hours, either
authorize Operator to contact a designated repair technician or
dispatch a designated repair technician to make the necessary repairs
to the System. Charges for repairs will be billed directly to PNV.
7. Term.
(a) Subject to Section 16, the term of this Agreement
shall be for a period of nine (9) years commencing on the date of this Agreement
and terminating on the ninth anniversary of the date of this Agreement (the
"Term"). Upon the expiration of the Term, PNV and Operator may mutually agree to
an additional term.
8. Fees.
(a) The monthly Gross Receipts derived from sales at each
card dispensing machine located at each Truckstop shall be allocated between PNV
and Operator as follows: (i) during the first five years of the Term, sixty-five
percent (65%) to PNV and thirty-five percent (35%) to Operator; and (ii) during
the last four years of the Term, sixty percent (60%) to PNV and forty percent
(40%) to Operator.
For these purposes, "Gross Receipts" for any period shall mean the
aggregate gross amount collected by the Operator, during any calendar month,
from the sale of the Services at the card dispensing machine located at each
truckstop during such period less the amount of taxes, if any, which are
required to be charged to the user of the Services and less any refunds for
faulty service or equipment. Notwithstanding the foregoing, for purposes of this
Agreement, "Gross Receipts" shall not include any revenue received by PNV or the
Operator for: (i) advertising displayed by PNV pursuant to Section 4(a)(ii) or;
(ii) pay-per-view or other additional channels or services provided as part of
the Services pursuant to Section 4(a)(iii).
(b) Operator shall also be entitled to receive a portion
of the gross revenues received by Park 'N View from sales to fleets ("Fleet
Revenues"). The Operator's portion of the Fleet Revenues shall be determined by
multiplying thirty-five percent 35% of the Fleet
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Revenues by a fraction, the numerator of which is the total number of wired
stalls at the Operator's Truckstops and the denominator of which is the total
number of wired stalls in the PNV network.
(c) Net profits (after payment of all Directly Related
Expenses) generated by the services provided pursuant to Sections 4(a)(ii) and
4(a)(iii) shall be divided as follows: 50% to PNV and 50% to Operator. For these
purposes, "Directly Related Expenses" shall mean all direct costs and expenses
incurred by PNV with respect to the: (i) acquisition and installation of the
equipment necessary to transmit advertising over the System, including, without
limitation, loop tape players and loop tapes; (ii) sale, promotion and
production of advertising programs; (iii) salaries and commissions paid to and
expenses incurred by individuals or entities which sell advertising; and (iv)
fees paid to pay-per-view programmers. Directly Related Expenses shall not
include: (i) allocations of corporate overhead (other than the advertising
department); (ii) depreciation of the PNV Equipment, other than the equipment
necessary to transmit advertising over the System; or (iii) other costs and
expenses which are not directly related to the sale and promotion of advertising
over the System.
(d) PNV will provide Operator, free of charge, use of one
(1) channel at each Truckstop at which the System is installed. Operator shall
be responsible for providing the content and material to be broadcast over such
channel, provided that, Operator shall not broadcast or advertise over such
channel any services which compete with the Services provided by PNV (including,
but not limited to, satellite dish television or wireless telephone services).
(e) All amounts due to Operator hereunder shall be paid
by PNV to Operator by check on or before the twentieth (20th) day of the month
following the month in which PNV receives such revenues. The books and records
of the Operator and PNV pertinent to the Fleet Revenues, Gross Receipts,
Directly Related Expenses, and other revenue and taxes received with respect to
the sale of the Services shall be open for inspection and audit by an authorized
representative of either Operator or PNV upon five (5) business days notice to
said party. If any such audit shows an error of 5% or more with respect to the
amount to be paid to Operator, PNV shall bear the cost of such audit.
9. Exclusivity.
(a) PNV shall, subject to PNV's performance and observance of its
obligations under this Agreement and Operator's rights of termination provided
for in Sections 1 and 16, for a period of nine (9) years from the date of this
Agreement, have the exclusive right to install the System and provide the
Services to the Initial Truckstops. Furthermore, if, pursuant to Section 1 (b),
Petro elects to have PNV install the System at the additional Truckstops in the
Petro Network, PNV shall, subject to PNV's performance and observance of its
obligations under this Agreement and Operator's rights of termination provided
for in
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Sections 1 and 16, for a period of nine (9) years from the date of this
Agreement, have the right to install the System at all Truckstops listed on
Schedule 1A. Notwithstanding the foregoing, the right of exclusivity granted
hereunder to PNV with respect to telecommunication services is limited solely to
telecommunication services provided by means of a system and equipment of the
same kind as the PNV System (i.e. the delivery of phone service by hard wire to
parking stalls), it being agreed that Operator may install or agree to have
installed competing telecommunication services to the Truckstops which are
different in their technology, systems or equipment from the PNV System.
(b) PNV shall during the Term of this Agreement have: (i)
the non-exclusive right to offer to Operator at competitive prices coaxial and
phone cables for use with the Services provided by PNV; and (ii) the
nonexclusive right to offer to Operator television, telephone and cable
accessories and adapters for use with the Services. After purchasing the
foregoing items from PNV, Operator shall be entitled to resell such items to its
customers and retain all profits from such resales.
10. Rights Granted to PNV. Operator hereby grants and conveys to
PNV, during the Term of this Agreement, reasonable access to the premises of
each Truckstop at which the System is installed for purposes of installing,
maintaining, repairing, replacing and operating the System and providing the
Services. If PNV is denied access to any portions of the promises necessary for
making repairs, the 48 hour period in which such repairs are to be made shall
commence at such time as PNV is granted access to the necessary premises.
11. Representations and Warranties of PNV.
(a) PNV is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has full power
and authority: (i) to enter into this Agreement; and (ii) to carry out the other
transactions and agreements contemplated by this Agreement.
(b) The execution, delivery and performance of this
Agreement by PNV has been duly authorized by all necessary action of PNV. This
Agreement and each of the other documents to be executed and delivered by PNV
pursuant to this Agreement have been duly executed and delivered by PNV and are
the valid and binding obligations of PNV enforceable in accordance with their
respective terms, subject only as to enforceability affected by bankruptcy,
insolvency or similar laws affecting the rights of creditors generally and by
general equitable principles. The execution, delivery and performance of this
Agreement and the other documents to be executed, delivered and performed by PNV
pursuant to this Agreement will not: (i) conflict with or violate any provision
of PNV's organizational documents, or any law, ordinance or regulation or any
decree or order of any court or administrative or other governmental body which
is either applicable to, binding upon or enforceable against PNV; or (ii) result
in any breach of or default under or cause the
-11-
12
acceleration of performance of any mortgage, contract, agreement, indenture or
other instrument which is either binding upon or enforceable against PNV.
(c) PNV is not required to obtain the approval, consent
or waiver of any other person or entity for the execution, delivery or
performance of this Agreement.
(d) All of the information contained in the
representations and warranties of PNV set forth in this Agreement or in any of
the documents delivered or to be delivered herewith or after the execution
hereof as set forth in any provision of this Agreement is true, accurate and
complete.
12. Representations and Warranties of Operator.
(a) Operator is a limited partnership duly organized,
validly existing and in good standing under the laws of Delaware and has full
power and authority: (i) to enter into this Agreement; and (ii) to carry out the
other transactions and agreements contemplated by this Agreement.
(b) The execution, delivery and performance of this
Agreement by Operator has been duly authorized by all necessary partnership
action of Operator. This Agreement and each of the other documents to be
executed and delivered by Operator pursuant to this Agreement have been duly
executed and delivered by Operator and are the valid and binding obligations of
Operator enforceable in accordance with their respective terms, subject only as
to enforceability affected by bankruptcy, insolvency or similar laws affecting
the rights of creditors generally and by general equitable principles. The
execution, delivery and performance of this Agreement and the other documents to
be executed, delivered and performed by Operator pursuant to this Agreement will
not: (i) conflict with or violate any provision of Operator's Partnership
Agreement, or any law, ordinance or regulation or any decree or order of any
court or administrative or other governmental body which is either applicable
to, binding upon or enforceable against Operator; or (ii) result in any breach
of or default under or cause the acceleration of performance of any mortgage,
contract, agreement, indenture or other instrument which is either binding upon
or enforceable against Operator.
(c) Operator is not required to obtain the approval,
consent or waiver of any other person or entity for the execution, delivery or
performance of this Agreement.
(d) All of the information contained in the
representations and warranties of Operator set forth in this Agreement or in any
of the documents delivered or to be delivered herewith or after the execution
hereof as set forth in any provision of this Agreement is true, accurate and
complete.
-12-
13
13. Safety, Liability for Loss and Damage; Indemnification;
Insurance.
(a) PNV shall be responsible for initiating, maintaining
and supervising all necessary and appropriate safety precautions, policies and
programs in connection with the installation, operation and maintenance of the
System and provision of the Services at and to each Truckstop and shall be fully
responsible for the safety of and take all steps necessary to prevent damage,
loss and injury to any person or property in connection with such installation,
maintenance and operation of the System. PNV shall be liable for any and all
loss, damage and injury to person or property that in any way relates to,
results from, is based upon or arises in connection with this Agreement or the
subject matter hereof or the installation, operation and maintenance of the
System and provision of the Services to a Truckstop or events occurring in
connection therewith, except where such loss, damage or injury is caused by the
intentional misconduct or wrongdoing of Operator, its employees, contractors or
agents. Operator shall not be liable to PNV or any other party for any act or
omission to act, including acts or omissions to act constituting negligence of
Operator, in connection with this Agreement or the transactions contemplated
hereby or events occurring in connection herewith or therewith, except where
Operator shall be guilty of gross negligence, fraud or intentional wrongdoing or
misconduct. In no event shall Operator, its partners, officers, directors,
employees, agents or affiliates be liable for any special, indirect,
consequential or punitive damages in respect of any theory of liability arising
out of or related to any act or omission to act in connection with this
Agreement or the transactions contemplated hereby or events occurring in
connection therewith.
(b) PNV hereby agrees to indemnify and save and keep
harmless Operator and its partners, officers, directors, employees, agents and
affiliates, from and against any and all liabilities, obligations, losses,
damages, penalties, fines, punitive damages, amounts in settlement, claims,
actions, proceedings, suits, judgments, costs, interest, expenses and
disbursements of any kind and nature whatsoever, including attorneys' fees and
costs (a "Claim") that may be imposed on, incurred by or asserted against any
such indemnified party in any way relating to, resulting from, based upon or
arising out of this Agreement or the transactions contemplated hereby or the
subject matter hereof, including, without limitation, any Claim arising from any
liability in tort (strict or otherwise) or from the active or passive negligence
of any of the foregoing indemnified parties or any breach or violation of any
provision, representation, warranty or covenant of this Agreement by PNV;
provided, however, that PNV shall not be required to indemnify any such party
for any claim against any such party resulting solely from the intentional
misconduct or wrongdoing or gross negligence of such party (unless imputed to
such party by reason of any act or omission of PNV, whether as agent for such
party or otherwise). Without limiting the foregoing, it is agreed that in any
and all claims against Operator by any employee or subcontractor of PNV or any
other party, the indemnification available under this paragraph shall not be
limited in any way by any limitation on the amount or type of damages or
compensation or benefits payable by or on
-13-
14
behalf of PNV or any subcontractor under any workers' compensation act,
disability act or other employee benefit act.
(c) PNV shall maintain during the Term of this Agreement
(or any renewal term), at its sole cost and expense, comprehensive public
liability insurance in the minimum amount of $1,000,000 providing coverage at
each Truckstop at which the Services are provided against any claims relating to
the operation or use of the System or the sale or provision of the Services and
shall ensure that Petro is named as an additional insured in respect of such
insurance or is otherwise covered as its interest may appear.
14. Force Majeure. Neither party shall have any liability for the
failure to perform or a delay in performing any of its obligations if such
failure or delay is the result of such party being unable to perform because of
civil unrest; acts of God; war; governmental interferences or embargoes; labor
strikes; failure to provide fuel, power, materials or supplies; transportation
delays by third parties; or any other cause (whether or not similar to those
described in this Section 14) beyond the control of the responsible party so
long as in any case PNV uses its best efforts to recommence its performance of
the obligation whenever and to whatever extent possible without delay and such
nonperformance does not otherwise constitute a breach of this Agreement or
grounds for termination of this Agreement.
15. Assignment.
(a) Operator may sell, assign, transfer or otherwise
dispose of its interest in one or more of the Truckstops (through a change of
control or otherwise) provided that either (i) the acquiror of such interest or
assets shall assume the Operator's rights and obligations hereunder and shall be
bound by the terms of this Agreement in which case, PNV shall recognize the
acquiror of such Truckstop as its Operator for purposes of this Agreement and
Operator shall have no further liability, responsibility or duty hereunder; or
(ii) Operator shall provide PNV with payment for PNV's earnings for the
remainder of the Term based on sales prior to such event.
(b) PNV may pledge its interest in this Agreement to any
party, including without limitation, to any bank, recognized lending or leasing
institution or investor as collateral. PNV may sell, assign, transfer or
otherwise dispose of its interest in this Agreement provided that said acquiror
shall assume all of PNV's rights and obligations hereunder and shall be bound by
the terms of this Agreement, provided that, said acquiror shall be deemed to be
in breach of this Agreement, and Operator may terminate this Agreement, subject
to Section 16, if said acquiror does not provide the level of services and
maintenance comparable to that provided by PNV.
-14-
15
16. Breach; Termination.
(a) In the event that either party shall fail or refuse in any
material respect to perform any obligation under this Agreement, the other party
may in writing notify the non-performing party that such failure or refusal
constitutes a breach of this Agreement. If the breach is not remedied or cured
within thirty (30) days following receipt of the notice of breach, without
limiting any other remedy which may be available, the non-breaching party may
terminate this Agreement by notice to the breaching party. Termination of this
Agreement by a party for breach by the other party is not exclusive of any other
right or remedy the terminating party may have at law or in equity as a result
of such breach. All rights or remedies available to a party, under this
Agreement at law or in equity, may be exercised or pursued cumulatively. If PNV
has knowledge of or discovers that it is in breach of this Agreement, it shall
immediately notify Operator of said breach. In addition, this Agreement shall
terminate automatically if any of the following occur:
(i) the Party shall admit in writing its
inability to pay its debts as they mature, or shall make an assignment
for the benefit of its or any of its creditors;
(ii) proceedings in bankruptcy, or for
reorganization of the Party, or for the readjustment of any of its
debts, under the Bankruptcy Code, as amended, or under any other laws,
whether state or federal, for the relief of insolvent debtors, now or
hereafter existing, shall be commenced by the Party, or shall be
commenced against the Party and shall not be discharged within sixty
(60) days of their commencement; or
(iii) a receiver, custodian or trustee shall be
appointed for the Party or for any substantial part of its assets, or
any proceedings shall be instituted for the dissolution or the full or
partial liquidation of the Party, and such receiver, custodian or
trustee shall not be discharged within sixty (60) days of his
appointment, or such proceedings shall not be discharged within sixty
(60) days of their commencement, or the Party shall discontinue
business or materially change the nature of its business.
(b) If after the third anniversary of the Truckstop
Service Date of any Truckstop at which the System has been installed, the
Operator's portion of the Gross Receipts, Fleets Revenues and Net profits
allocable to such Truckstop pursuant to Sections 8 (a), (b) and (c) do not, in
the aggregate, average at least $1,500 per month during any six month period,
the Operator may terminate this Agreement as it applies to that Truckstop,
provided that, Operator is not in breach of this Agreement and there have been
no material changes in the average total monthly revenues of that Truckstop
during the applicable period and, provided further, that this Agreement will
remain in full force and effect with respect to all other Truckstops then
subject to this Agreement.
17. Ownership and Confidentiality. Operator recognizes and agrees
that PNV shall, during the term of this Agreement and thereafter, retain sole
ownership of the System and the PNV Equipment. Operator recognizes the
proprietary nature of the concept and the design of
-15-
16
the System, the PNV Equipment and the Services. Accordingly, Operator agrees to
maintain and cause each of its employees and agents to maintain and keep
strictly confidential all confidential information that it obtains or receives
in conjunction with the System, the PNV Equipment and the Services. Operator
further agrees that the "Park N' View" name and logo shall be and remain the
property of PNV and all references by Operator to the System or the Services
shall incorporate and/or refer to PNV by its full name (Park N' View), whether
in literature, electronic or print displays, articles, advertising, billboards,
banners or otherwise. The name, Park 'N View, is, or will be, a registered
service ▇▇▇▇ of PNV and to the extent required by PNV, Operator shall execute a
no cost limited license agreement for the use of such service ▇▇▇▇ on terms and
conditions mutually satisfactory to the Parties. The Parties agree to use their
commercially reasonable best efforts to keep in strictest confidence and not to
disclose to any third party the fact that the Term of this Agreement is nine
years as provided in Section 7. Notwithstanding the foregoing, either party may
disclose this Agreement, and any of the terms and conditions hereof, including,
without limitation, its Term, (i) to the party's respective directors, officers,
partners, employees, agents, representatives, affiliates, counsel, accountants
and professional advisers; (ii) as compelled pursuant to subpoena or judicial or
administrative order or ruling; and (iii) as the party may deem necessary or
appropriate (a) in connection with filings and disclosures and the provision of
information pursuant to laws and regulations applicable to the party, including,
without limitation, federal and state securities laws and regulations, (b) to
franchisees and potential franchisees and bank lenders and other insiders of
such party, and (c) to any party to the extent the information disclosed has
become otherwise publicly available pursuant to the provisions of this Agreement
or by any other means not involving a breach of this Agreement by the party.
-16-
17
18. General Provisions.
(a) Notices. All notices required or permitted hereunder
shall be in writing and, may either be delivered by overnight courier,
transmitted by facsimile, or delivered by the United States Mail, postage
prepaid, addressed as follows:
To PNV: ▇▇▇ ▇▇▇▇▇▇▇▇, President
Park 'N View, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇. ▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
To Operator: Attn: Legal Department
Petro Stopping Centers, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Kemp, Smith, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
Attn: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
All notices shall be deemed delivered only upon actual receipt. Any party may
change its address for purposes of this Agreement by giving notice of such
change to the other parties pursuant to the terms of this Section 18(a).
(b) Expenses. Each party agrees to pay, without right of
reimbursement from any other party, its costs relating to the preparation of
this Agreement and the performance of its obligations hereunder, including
without limitation, fees and disbursements of counsel, accountants and
consultants employed by such party in connection herewith.
-17-
18
(c) Actions; Further Assurances. Subject to the terms and
conditions of this Agreement, each party agrees to use its best efforts in good
faith to: (i) take or cause to be taken as promptly as practicable all actions
and obligations arising herein; and (ii) do or cause to be done all things that
are within its power to fulfill and comply with its obligations or the
obligations of the other parties to consummate the transactions contemplated
herein.
(d) Press Releases. To the extent practical, PNV and
Operator shall consult with each other as to the form and content of all press
releases and other public disclosures of matters relating to this Agreement, the
System and the Services. Nothing in this section shall prohibit PNV or Operator
from making any disclosure which its legal counsel deems necessary or advisable
to fulfill such party's disclosure obligations under applicable law. To the
extent practical, all public disclosures shall be transmitted by telecopier to
the other party or its counsel prior to publication or dissemination.
(e) Section Headings. The section headings in this
Agreement are for convenience of reference only and shall not be deemed to alter
or affect any provision hereof.
(f) Applicable Law. This Agreement shall be governed by
Florida law except to the extent that a matter relates solely to a Truckstop
outside the state of Florida, in which case it shall be governed by the laws of
the State in which such Truckstop is located.
(g) Litigation; Prevailing Party. If litigation is
brought with regard to this Agreement, the prevailing party shall be entitled to
receive from the non-prevailing party, and the non-prevailing party shall
immediately pay upon demand, all reasonable fees and expenses of counsel of the
prevailing party.
(h) Schedules. The Schedules attached to this Agreement
are integral parts of this Agreement and all references to this Agreement shall
include the Schedules.
(i) Modification. This Agreement shall not be modified or
amended except by an instrument in writing executed by the parties to this
Agreement.
(j) Successors And Assigns. This Agreement shall apply
to, and be binding upon, the parties and their respective successors and
permitted assigns (as determined under Section 15).
-18-
19
(k) Severability. If any part or sub-part of this
Agreement is found or held to be invalid, that invalidity shall not affect the
enforceability and binding nature of any other part of this Agreement.
(l) Arbitration. Any controversy, dispute or question
arising out of, or in connection with, or in relation to this Agreement or the
interpretation, performance or non-performance or any breach thereof shall be
determined by arbitration conducted in Dallas, Texas in accordance with the then
existing commercial arbitration rules of the American Arbitration Association
and its supplementary procedures for larger, complex commercial disputes. PNV
and Operator shall each select one arbitrator, and the two arbitrators shall
select a third. Any decision rendered shall be binding upon the Parties,
however, the arbitrators shall have no authority to grant any relief that is
inconsistent with this Agreement. The expense of arbitration shall be borne
equally by the Parties or in such other proportion as shall be determined by the
arbitrators.
(m) Favored Nations. PNV agrees that the profit or
revenue allocations set forth in Sections 4(a)(ii), 4(a)(iii), 8(a), 8(b) and
8(c) of this Agreement shall, at the election of the Operator, be amended to
reflect any greater profit or revenue allocations provided to either: (i) TA
Operating Corp.; (ii) Travel Ports of America, Inc.; (iii) Pilot Corporation; or
(iv) any Franchisee of Petro Stopping Centers, L.P. pursuant to existing or
future contracts with such entities or their franchising entities, successors,
assigns, and affiliates, provided that, if the term of the contract with any of
these entities exceeds the Term of this Agreement as set forth in Section 7(a),
Operator shall agree to a comparable extension of the Term of this Agreement as
a condition to its right to receive the greater profit or revenue allocations.
(n) Counterparts. This Agreement may be executed in one
or more counterparts, each of which when so executed shall be deemed to be an
original and all of which together shall constitute one and the same instrument.
-19-
20
IN WITNESS WHEREOF, Operator and PNV have caused this Agreement to be
executed pursuant to appropriate legal authority duly given, as of the day and
year first above written.
WITNESSES:
PARK 'N VIEW, INC., a
Delaware corporation
-----------------------------
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------- -------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇, President
PETRO STOPPING CENTERS, L.P.,
a Delaware limited partnership
-----------------------------
By: /s/ Evan Brudhal
----------------------------- -------------------------------
21
SCHEDULE 1A
LIST OF TRUCKSTOPS OWNED OR OPERATED
BY OPERATOR
1. PETRO STOPPING CENTERS - ATLANTA, GA (Initial Site)
2. PETRO STOPPING CENTERS - OKLAHOMA CITY, OK
3. PETRO STOPPING CENTERS - EL PASO, TX (Initial Site)
4. PETRO STOPPING CENTERS - SAN ANTONIO, TX
5. PETRO STOPPING CENTERS - AMARILLO, TX
6. PETRO STOPPING CENTERS - WEST MEMPHIS, OK
7. PETRO STOPPING CENTERS - NORTH BALTIMORE, OH
8. PETRO STOPPING CENTERS - PERRYSBURG, OH (Initial Site)
9. PETRO STOPPING CENTERS - YOUNGSTOWN, OH
10. PETRO STOPPING CENTERS - OCALA, FL
11. PETRO STOPPING CENTERS - EFFINGHAM IL
12. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇, ▇▇
▇▇. PETRO STOPPING CENTERS - SHREVEPORT, LA
14. PETRO STOPPING CENTERS - KINGMAN, AZ
15. PETRO STOPPING CENTERS - BUCKSVILLE, AL
16. PETRO STOPPING CENTERS - KNOXVILLE, TN
17. PETRO STOPPING CENTERS - CORNING, CA
18. PETRO STOPPING CENTERS - KINGDOM CITY, MO
19. PETRO STOPPING CENTERS - LARAMIE, WY
20. PETRO STOPPING CENTERS - WEATHERFORD, TX
21. PETRO STOPPING CENTERS - MILAN, NM
22. PETRO STOPPING CENTERS - MEDFORD, OR
23. PETRO STOPPING CENTERS - BEAUMONT, TX
24. PETRO STOPPING CENTERS - CASA GRANDE, AZ
22
SCHEDULE 1B
LIST OF TRUCKSTOPS OWNED OR OPERATED BY FRANCHISEES
1. Portage, Wisconsin
2. Joplin, Missouri
3. New Paris, Ohio
4. Salina, Kansas (Petro:2)
5. Twin Falls, Idaho (Petro:2)
6. Rochelle, Illinois
7. Fargo, North Dakota
8. Bordentown, New Jersey
9. York, Nebraska
10. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
SCHEDULE 2
LIST OF CURRENT PNV EQUIPMENT
Current PNV Equipment:
Satellite Dish & Off-air receive antenna
Processing [head-end] equipment
Telephone PBX switch and operator console
Distribution cables
Parking lot plug-in boxes
Rental coaxial cables
Cable TV "billing" computer and software
PNV sales vending machine
Telephone & Cable TV accessories for resale
Voice-mail service
24
SCHEDULE 3
LIST OF CURRENT PROGRAMMING SCHEDULE
Current Programming Schedule:
================================================================================
CHANNEL # PROGRAM
--------------------------------------------------------------------------------
02 Playboy
--------------------------------------------------------------------------------
04 HBO1
--------------------------------------------------------------------------------
05 HBO2
--------------------------------------------------------------------------------
06 HBO3
--------------------------------------------------------------------------------
07 Discovery
--------------------------------------------------------------------------------
08 ESPN2
--------------------------------------------------------------------------------
09 FOX
--------------------------------------------------------------------------------
10 TBS
--------------------------------------------------------------------------------
11 CNN HN
--------------------------------------------------------------------------------
12 Weather
--------------------------------------------------------------------------------
13 ESPN
--------------------------------------------------------------------------------
14 NBC
--------------------------------------------------------------------------------
15 ABC
--------------------------------------------------------------------------------
16 A&E
--------------------------------------------------------------------------------
17 CBS
--------------------------------------------------------------------------------
18 TNN
--------------------------------------------------------------------------------
19 TNT
--------------------------------------------------------------------------------
20 US EXPRESS
--------------------------------------------------------------------------------
21 PNV
================================================================================
25
SCHEDULE 4
LIST OF CURRENT TELEPHONE SERVICES
Current Telephone Services:
1+ calls
1-800 calls
Local calls
Operator services
Direct call back to stall # (automated)
Message waiting
Wake-up calls (automated)
26
AMENDMENT TO
CABLE TELEVISION AND TELEPHONE SERVICE AGREEMENT
THIS AMENDMENT TO THAT CERTAIN CABLE TELEVISION AND TELEPHONE SERVICE
AGREEMENT (this "Amendment") is entered into effective as of the 16th day of
March, 1998, by and between Park 'N View, Inc. ("PNV") and Petro Stopping
Centers, L.P. ("Operator").
WHEREAS, PNV and Operator have entered into that certain Cable
Television and Telephone Services Agreement dated September 12, 1997 (the
"Original Agreement"). Unless otherwise defined in this Amendment, defined terms
contained herein have the meaning ascribed to them in the Original Agreement;
WHEREAS, PNV now offers additional services to truckdrivers
(hereinafter referred to as the "New PNV Services" which together with the
Services as defined in the Original Agreement are collectively referred to as
the PNV Services) and PNV has developed additional sales programs (the "Power
Plan") to sell the PNV Services to truckdrivers;
WHEREAS, the Original Agreement did not address the allocation, between
PNV and the Operator, of the revenues or profits derived from the New PNV
Services or the Power Plan;
WHEREAS, PNV and Operator (collectively the "Parties") desire to
formally amend the Original Agreement to implement the following changes.
1. All revenues and profits derived from the sale of the PNV Services
shall, during the Term of the Original Agreement (and any renewed term), be
allocated between Operator and PNV as set forth on Schedule A attached hereto.
2. All other terms and provisions of the Original Agreement shall
remain in full force and effect. The Parties acknowledge and agree that if PNV
provides additional services in the future, the revenue and profit allocations
for such services shall be agreed to by the Parties in the form of a letter
agreement which shall constitute an amendment to the Original Agreement.
IN WITNESS WHEREOF, Operator and PNV have caused this Amendment to be
executed pursuant to appropriate legal authority duly given, as of the day and
year first above written.
PETRO STOPPING CENTERS, L.P. PARK 'N VIEW, Inc.,
a Delaware Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------ -----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇, President
27
--------------------------------------------------------------------------------
SCHEDULE A
--------------------------------------------------------------------------------
AMENDMENT TO CABLE TELEVISION
AND TELEPHONE SERVICE AGREEMENT
DESCRIPTION OF SERVICE OR SALE OPERATOR'S PORTION
------------------------------ ------------------
▇. ▇▇▇▇▇ Receipts Based Programs
1. Gross Receipts* from the sale of monthly and 35% for first five (5) years of the Term;
daily memberships and other services from the 40% for second five (5) years of the Term
vending machine at each of Operator's
Truckstop.
2. Gross Receipts* from the sale of Power Plans 35% for first month of service and 10% for each
at each of Operator's Truckstop. additional month of service under Power Plan
3. Gross Receipts* from the sale of memberships 10% of each months receipts will be placed in a pool
by telemarketing staff. and allocated among all Truckstops based upon the
number of wired stalls at each Truckstop.
4. Gross Receipts** from sales to Fleets. 10% of each months receipts will be placed in a pool
and allocated among all Truckstops based upon the
number of wired stalls at each Truckstop.
B. Net Profit Based Programs
1. Net Profits*** derived from Advertising. 50%
2. Net Profits*** derived from Pay Per View. 50%
3. Net Profits*** derived from sale of long 35%
distance phone time.
* Gross Receipts shall mean the aggregate gross revenue collected by PNV or
the Operator, during any calendar month, from the sale of the Services less
the cost of 60 free minutes of phone time and applicable taxes. Gross
Receipts shall not include any revenue received by PNV or the Operator for
services listed under Net Profit Based Programs above.
** Gross Receipts shall mean the aggregate gross revenue collected by PNV or
the Operator, during any calendar month, from the sale of the Services less
the cost of 60 free minutes of phone time, direct sales commissions and
applicable taxes. Gross Receipts shall not include any revenue received by
PNV or the Operator for services listed under Net Profit Based Programs
above.
*** Net Profits shall mean the aggregate gross revenue collected by PNV or
Operator less Directly Related Expenses. Directly Related Expenses shall mean
all direct costs and expenses incurred by PNV with respect to the: (i)
acquisition and installation of the equipment necessary to provide advertising,
Pay-Per-View or long distance phone time over the System; (ii) sale, promotion
and production of advertising, Pay-Per-View or long distance phone time; (iii)
salaries and commissions paid to and expenses incurred by individuals or
entities which sell advertising, Pay-Per-View or long distance phone time; (iv)
fees paid to pay-per-view programmers; and (v) fees paid or costs incurred to
provide long distance phone time. Directly Related Expenses shall not include:
(i) allocations of corporate overhead (other than the advertising department);
(ii) depreciation of the PNV Equipment, other than the equipment necessary to
provide advertising, Pay-Per-View or long distance phone time over the System;
or (iii) other costs and expenses which are not directly related to the sale and
promotion of advertising, Pay-Per-View or long distance phone time over the
System.
28
SECOND AMENDMENT TO
CABLE TELEVISION AND TELEPHONE SERVICE AGREEMENT
THIS SECOND AMENDMENT TO THAT CERTAIN CABLE TELEVISION AND TELEPHONE
SERVICE AGREEMENT (this "Second Amendment") is entered into effective as of the
7th day of May, 1998, by and between Park 'N View, Inc. ("PNV") and Petro
Stopping Centers, L.P. ("Operator").
WHEREAS, PNV and Operator have entered into that certain Cable
Television and Telephone Services Agreement dated September 12, 1997, as amended
by that certain Amendment to Cable Television and Telephone Service Agreement
dated March, 16, 1998 (collectively, the "Original Agreement"). Unless otherwise
defined in this Second Amendment, defined terms contained herein have the
meaning ascribed to them in the Original Agreement;
WHEREAS, PNV now offers additional services to truckdrivers
(hereinafter referred to as the "New PNV Services" which together with the
Services as defined in the Original Agreement are collectively referred to as
the PNV Services) and PNV has developed additional sales programs (the "Power
Plan") to sell the PNV Services to truckdrivers;
WHEREAS, the Original Agreement did not address the allocation, between
PNV and the Operator, of the revenues or profits derived from the New PNV
Services or the Power Plan;
WHEREAS, PNV and Operator desire to formally amend the Original
Agreement to implement the following changes.
1. All revenues and profits derived from the sale of the PNV Services
shall be allocated between Operator and PNV as set forth on Schedule A attached
hereto.
2. All other terms and provisions of the Original Agreement shall
remain in full force and effect. The Parties acknowledge and agree that if PNV
provides additional services in the future, the revenue and profit allocations
for such services shall be agreed to by the Parties in the form of a letter
agreement which shall constitute an amendment to the Original Agreement.
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IN WITNESS WHEREOF, Operator and PNV have caused this Second Amendment
to be executed pursuant to appropriate legal authority duly given, as of the day
and year first above written.
PETRO STOPPING CENTERS, L.P. PARK 'N VIEW, Inc.,
a Delaware Corporation
By: /s/ Evan Brudhal By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------- --------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇, President
30
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SCHEDULE A
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AMENDMENT TO CABLE TELEVISION AND TELEPHONE SERVICE AGREEMENT
DESCRIPTION OF SERVICE OR SALE OPERATOR'S PORTION
------------------------------ ------------------
▇. ▇▇▇▇▇ Receipts Based Programs
1. Gross Receipts* from the sale of monthly and 35% for first five (5) years of the Term;
daily memberships from the vending machine at 40% for second four (4) years of the Term
each of Operator's Truckstops.
2. Gross Receipts* from the sale of Power Plans 35% for first month of service and 10% for each
at each of Operator's Truckstops. additional month of service under Power Plan
3. Gross Receipts* from the sale of memberships 10% of each months receipts will be placed in a pool
by telemarketing staff. and allocated among all
Truckstops based upon the number of wired stalls at
each Truckstop
4. Gross Receipts** from sales to Fleets. 10% of each months receipts will be placed in a pool
and allocated among all Truckstops based upon the
number of wired stalls at each Truckstop
B. Net Profit Based Programs
1. Net Profits*** derived from Advertising. 50%
2. Net Profits*** derived from Pay Per View or other non-traditional 50%
cable channels or services (collectively, Pay-Per-View).
3. Net Profits*** derived from sale of long distance phone time. 35%
* Gross Receipts shall mean the aggregate gross revenue collected by PNV or
the Operator, during any calendar month, from the sale of the PNV Services
less the cost of 60 free minutes of phone time and applicable taxes. Gross
Receipts shall not include any revenue received by PNV or the Operator for
services listed under Net Profit Based Programs above.
** Gross Receipts shall mean the aggregate gross revenue collected by PNV or
the Operator, during any calendar month, from the sale of the PNV Services
less the cost of 60 free minutes of phone time, direct sales commissions
and applicable taxes. Gross Receipts shall not include any revenue received
by PNV or the Operator for services listed under Net Profit Based Programs
above.
*** Net Profits shall mean the aggregate gross revenue collected by PNV or
Operator less Directly Related Expenses. Directly Related Expenses shall
mean all direct costs and expenses incurred by PNV with respect to the: (i)
acquisition and installation of the equipment necessary to provide
advertising, Pay-Per-View or long distance phone time over the System; (ii)
sale, promotion and production of advertising, Pay-Per-View or long
distance phone time; (iii) salaries and commissions paid to and expenses
incurred by individuals or entities which sell advertising, Pay-Per-View or
long distance phone time; (iv) fees paid to pay-per-view programmers; and
(v) fees paid or costs incurred to provide long distance phone time.
Directly Related Expenses shall not include: (i) allocations of corporate
overhead (other than the advertising department); (ii) depreciation of the
PNV Equipment, other than the equipment necessary to provide advertising,
Pay-Per-View or long distance phone time over the System; or (3) other
costs and expenses which are not directly related to the sale and promotion
of advertising, Pay-Per-View or long distance phone time over the System.
Directly Related Expenses shall be determined on a program specific basis,
and shall not be cumulative of expenses for each program, so that in
determining Net Profits of a program, only Directly Related Expenses for
that program shall be taken into account.