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EXHIBIT 10.11
CABLE TELEVISION AND TELEPHONE SERVICE AGREEMENT
THIS CABLE TELEVISION AND TELEPHONE SERVICE AGREEMENT (this
"Agreement") is entered into this 7th day of February, 1997, by and between Park
'N View, Inc., a Delaware corporation ("PNV"), with its headquarters at 0000
X.X. 00xx Xxxxxx, Xxxxxxxx #00, Xx. Xxxxxxxxxx, Xxxxxxx and All American Plazas,
Inc., a Pennsylvania corporation ("Operator"), with its headquarters at 0000
Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxx.
WHEREAS, Operator: (i) currently owns or operates eight (8)
full-service travel plaza truckstops which are located at the addresses listed
on Schedule 1 hereto; and (ii) may acquire or contract to operate other
full-service travel plaza truckstops, all of the aforesaid hereinafter
individually being referred to as a "Truckstop" and collectively being referred
to as the "Truckstops"; 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
(collectively, the "Services"); and
WHEREAS, Operator desires to engage PNV to install the System and
provide the Services at certain of the Truckstops.
NOW THEREFORE, in consideration of the mutual promises and covenants
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. The Parties hereby agree that PNV shall install the
System and the parties shall operate the System at Operator's Truckstop located
at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxx, 00000. PNV shall install the
System at such other Truckstops as may be mutually agreed upon by the Parties.
2. Installation of Equipment.
(a) Subject to the mutual agreement of Operator and PNV
as to the type and amount of equipment, 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:
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(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". With the consent of
Operator, which shall not be unreasonably withheld, PNV may make additions to
and deletions from the PNV Equipment to be installed at each Truckstop. 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.
(b) PNV and Operator shall mutually agree upon sufficient
areas in which to install the PNV Equipment at each Truckstop, 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 Services, provided that, PNV shall use PNV's best efforts to
minimize the disruption to traffic flow and parking space availability.
(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
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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.
(d) PNV shall install the PNV Equipment in a workmanlike
and efficient manner, without unreasonable interference with the operation of
each Truckstop. PNV shall use its best efforts to minimize the disruption to
traffic flow and parking space availability. PNV shall fully complete the
installation of the System at each Truckstop within 180 days of commencement of
the installation at said Truckstop.
(e) 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. Operator shall assist PNV
(at PNV's expense) in obtaining any such licenses, permits, or approvals upon
PNV's reasonable request.
(f) 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").
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 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) Upon the termination of this Agreement for any
reason, PNV may, but shall not be obligated to, offer to sell or lease any or
all of the PNV Equipment to Operator; provided, however, that Operator shall not
be required to purchase or lease any portion or all of the PNV Equipment. Any
purchase and sale or lease pursuant to the preceding sentence of this section
shall be on such terms as are mutually agreeable to PNV and Operator. In the
event that (i) PNV elects not to offer to sell or lease to Operator some portion
or all of the PNV Equipment, or (ii) Operator declines to purchase or lease some
portion of all of PNV Equipment offered for sale or lease by PNV, or (iii) the
parties are unable to reach mutual agreement as to the terms of such sale and
purchase or lease, then PNV, at PNV's sole cost and expense, shall remove all of
the PNV Equipment not sold or leased to Operator and restore
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each Truckstopas near as reasonably possible to the condition of such premises
prior to the installation of the System, normal wear and tear excepted. PNV
shall not be obligated to remove any underground cables so long as PNV provides
Operator with such documentation as is reasonable to enable Operator to identify
the location of said 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, with the prior
consent of Operator, make changes to the
programming schedule from time to time.
(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.
Operator and PNV shall mutually agree on the
nature, scope and content of the advertising
to be broadcast over the System at each
Truckstop. 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. 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
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usage and such fees shall be considered
Gross Receipts for purposes of this
Agreement. PNV shall, with Operator's prior
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. If
the Parties mutually agree to permit 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.
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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 fuel desk 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 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 best efforts to assure that
the management, fuel desk employees and other personnel promote the use of the
Services by the truck drivers frequenting the Truckstop. 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 shall 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 Truckstops to
be run on a single dedicated channel to be made available to Operator.
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 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, and Repairs to, 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 cable television programming and telecommunications services to home
consumers.
(b) Maintenance of and Repairs to, the System shall be
handled as follows:
(i) Operator's trained staff members shall:
(a) replace failed connecting drop cables
and accessories with equipment to be
furnished by PNV at PNV's cost; (b) clean
and remove debris such as oil, dirt, ice,
and snow from the cable and phone boxes in
the outside hookups; and (c) replace cable
and phone connection outlets in the outside
hookups with equipment furnished by PNV
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at PNV's cost. Subject to the provisions of
Section (13)(b) herein, all other
maintenance and repairs shall be at PNV's
expense and shall be performed pursuant to
the provisions of Section 6(b)(ii) below.
(ii) If a mechanical problem arises other than
those routine maintenance matters which
Operator is required to perform pursuant to
the provisions of Section 6(b)(i) above, or
if a repair is needed to the System,
Operator shall contact PNV by telephone at
PNV's office. PNV shall, within forty-eight
(48) hours of said call, either authorize
Operator to contact a designated repair
technician or dispatch a designated repair
technician to make the necessary repairs to
the System. All charges for repairs for
which PNV is responsible pursuant to the
provisions of Sections 6(b)(i) and (ii)
above shall be billed directly to, and be
the responsibility of, PNV.
7. Term.
(a) Subject to Section 16, the term of this Agreement, as
it applies to each Truckstop at which the System is installed, shall be for a
period of five (5) years commencing on the Truckstop Service Date and
terminating on the fifth anniversary of the Truckstop Service Date (the "Term").
Subject to Section 16, the Term shall automatically be extended for a five (5)
year renewal period (the "Automatic Renewal Term") provided that, as a condition
to the commencement of the Automatic Renewal Term, Operator shall be entitled to
receipt of the increased percentage of Gross Receipts set forth in Section 8(a).
Upon the expiration of the Automatic Renewal Period, PNV and Operator may
mutually agree to an additional five-year renewal 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 Term, sixty-five percent (65%) to PNV
and thirty-five percent (35%) to Operator; and (ii) during the Automatic Renewal
Term, sixty percent (60%) to PNV and forty percent (40%) to Operator. In
addition, Operator shall be entitled to receive a portion of the gross revenues
received by PNV 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 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.
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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) 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.
(c) Unless otherwise agreed to by the Parties, PNV shall
have sole responsibility for collection of all revenues generated by the System
and the Services at each Truckstop and PNV shall cause its representative to
collect all revenues derived from the debit card dispensers located at each
Truckstop at least once during each calendar month. On or before the twentieth
(20th) day of each calendar month, PNV shall: (i) remit payment to Operator of
all amounts due to Operator which were received by PNV during the prior calendar
month; and (ii) provide Operator with a report indicating: (a) the usage of the
System and the Services at each Truckstop; and (b) the calculation of the amount
remitted to Operator. The books and records of the Operator and PNV pertinent to
the Gross Receipts, Directly Related Expenses, and other revenue and taxes
received with respect to the sale of the Services for any calendar month 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.
9. Exclusivity.
(a) PNV shall, for a period of ten (10) years from the
date of this Agreement, have the exclusive right to install the System and
provide the Services to each Truckstop and any additional truckstops in which
Operator acquires an interest (whether owned, leased or operated under a
contract or some similar agreement), provided that, PNV shall not install the
System at any Truckstop until PNV has obtained Operator's consent as
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required by Sections 1 and 2(c). Notwithstanding the foregoing, within ninety
(90) days of receipt from Operator of a written request for installation of the
System at a particular Truckstop, PNV shall provide Operator with written notice
of PNV's intention to install the System at such Truckstop pursuant to PNV's
normal build schedule. In the event that PNV declines to install the System at a
particular Truckstop or fails to provide the Operator with the required written
notice within said ninety (90) day period, PNV's exclusive right to provide the
Services and the System to that particular Truckstop shall terminate and
Operator shall be entitled to obtain services at that particular Truckstop which
compete with the Services and the System provided by PNV.
(b) PNV shall during the Term of this Agreement (and any
renewal term) have the nonexclusive right to sell to Operator, and Operator
shall have no obligation to purchase: (i) coaxial and phone cables for use with
the Services; and (ii) 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, for the Term of this Agreement (and any renewal term), access to the
premises of each Truckstop at which the System is installed for purposes of
maintaining, repairing, replacing and operating the System and providing the
Services.
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
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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 corporation duly organized, validly
existing and in good standing under the laws of Pennsylvania 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 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 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 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.
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13. Risk of Loss and Insurance; Indemnification.
(a) PNV shall bear the risk of loss and hereby
indemnifies and holds harmless Operator for and agrees to defend Operator from:
(i) damage to or destruction of the PNV Equipment and the System installed at
each Truckstop, except as provided in Section 13(b); and (ii) injury to persons
or damage to property arising from the installation, operation or repair of the
PNV Equipment and the System (except to the extent such damage is occasioned by
the gross negligence or willful misconduct of Operator, its employees,
contractors or agents, but not its customers).
(b) Operator shall be responsible for the maintenance,
repair or replacement of the PNV Equipment resulting from damage or destruction
caused by the gross negligence or willful misconduct of the Operator, its
employees, contractors or agents, but not its customers. Operator shall use its
best efforts to orient its employees or contractors providing snow removal
services to the Truckstops to the location of the PNV Equipment. Notwithstanding
the foregoing, PNV specifically acknowledges and agrees that damage may occur
during snow removal operations and further agrees that PNV shall remain fully
responsible for any repair or replacement of the PNV Equipment required because
of damage or destruction caused during snow removal operations. Operator shall
have no responsibility for damage to, or destruction of, the PNV Equipment
during or incident to snow removal operations, whether or not resulting from the
negligence of Operator or Operator's contractors or agents.
(c) Both Operator and PNV shall maintain during the Term
of this Agreement (or any renewal term), at their 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 each Party 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 any legal restriction, labor dispute, strike,
boycott, flood, fire, public emergency, revolution, insurrection, riot, war,
unavoidable mechanical failure, interruption in the supply of electrical power
or any other cause beyond the control of any party acting in a reasonable
business-like manner, whether similar or dissimilar to the causes enumerated
above. In the event performance becomes impossible and this Agreement is
terminated at any or all of the Truckstops pursuant to the provisions of this
paragraph, PNV shall remove the Equipment at each Truckstop so affected pursuant
to the provisions of Section 3(b) of this Agreement.
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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 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.
(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.
16. Breach. In the event that either party shall fail 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 constitutes a
breach. 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.
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 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 xxxx of PNV and to the
extent required by PNV, Operator shall execute a no cost limited license
agreement for the use of such service xxxx.
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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: Xxx Xxxxxxxx
President
Park 'N View, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxxx #00
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax Number: (000) 000-0000
With a copy to: Xxxxx X. X'Xxxxxxx, Esq.
Xxxxxxxxxx Xxxxxxxx, L.L.P.
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Fax Number: (000) 000-0000
To Operator: Xxxx Xxxxxx
Executive Vice President
Carlisle Texaco Travel Plaza
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Fax Number: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxx, Esquire
Barley, Snyder, Xxxxx & Xxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Fax Number: (000) 000-0000
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).
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(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.
(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.
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(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).
(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 Ft. Lauderdale, Florida in accordance
with the then existing rules of the American Arbitration Association. PNV and
Operator shall each select one arbitrator, and the two arbitrators shall select
a third with the same qualifications. 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.
(m) 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.
SIGNATURE PAGE TO FOLLOW
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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.
PARK 'N VIEW, INC., a
Delaware corporation
[CORPORATE SEAL]
Attest: By: /s/ Xxx Xxxxxxxx
--------------------------------
Xxx Xxxxxxxx, President
---------------------------------
, Secretary
-----------
ALL AMERICAN PLAZAS, INC.,
a Pennsylvania company
[CORPORATE SEAL]
Attest: By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxxx
---------------------------------
, Secretary
-----------
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SCHEDULE 1
LIST OF TRUCKSTOPS OWNED OR OPERATED
BY OPERATOR
Breezewood All American
X-00 & XX Xxxx Xxxx 00
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Carlisle Texaco Truck Plaza
X-00 Xxxx 00 & XX Xxxx Xxxx 00
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Clarks Ferry All American
XX 00 & 000
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Frystown All American
X-00 Xxxx 0 & PA Xxxxx 000
X.X. Xxx 000
Xxxxxx, XX 00000-0000
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Milton All American
X-00 Xxxx 00
X.X. Xxx 000
Xxxxxx, XX 00000
Carlisle All American
0000 Xxxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
Doswell All American
X-00 Xxxx 00
X.X. Xxx 0000
Xxxxxxx, XX 00000
Pine Grove All American / Subway
X-00 Xxxx 00 & Xxxxx 000
X.X. Xxx 000
Xxxx Xxxxx, XX 00000
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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
Cable TV "billing" computer and software
Prepaid [debit] card dispenser
Voice-mail service
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SCHEDULE 3
LIST OF CURRENT PROGRAMMING SCHEDULE
Current Programming Schedule:
================================================================================
Channel # Program
--------------------------------------------------------------------------------
2 ARTS & ENTERTAINMENT
--------------------------------------------------------------------------------
3 DISCOVERY
--------------------------------------------------------------------------------
4 ESPN II
--------------------------------------------------------------------------------
5 WGN
--------------------------------------------------------------------------------
6 HBO
--------------------------------------------------------------------------------
7 AMC
--------------------------------------------------------------------------------
8 NBC
--------------------------------------------------------------------------------
9 ESPN
--------------------------------------------------------------------------------
10 PREVUE
--------------------------------------------------------------------------------
11 TNN
--------------------------------------------------------------------------------
12 CNN
--------------------------------------------------------------------------------
13 ABC
--------------------------------------------------------------------------------
14 FUTURE SERVICE
--------------------------------------------------------------------------------
15 USA
--------------------------------------------------------------------------------
16 FOX
--------------------------------------------------------------------------------
17 CBS
--------------------------------------------------------------------------------
18 WTBS
--------------------------------------------------------------------------------
19 US XPRESS Power Channel
--------------------------------------------------------------------------------
20 VCR II
--------------------------------------------------------------------------------
21 VCR III
--------------------------------------------------------------------------------
22 VCR IV
================================================================================
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21
SCHEDULE 4
LIST OF CURRENT TELEPHONE SERVICES
Current Telephone Services:
1-800 calls
Local calls
Operator services
Direct call back to stall # (automated)
Message waiting
Wake-up calls (automated)
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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 27th day of
January, 1998, by and between Park 'N View, Inc. ("PNV") and All American
Plazas, Inc. ("Operator").
WHEREAS, PNV and Operator have entered into that certain Cable
Television and Telephone Services Agreement dated February 7, 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.
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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.
ALL AMERICAN PLAZAS, INC. PARK 'N VIEW, Inc.,
a Delaware Corporation
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxx Xxxxxxxx
------------------------------- --------------------------------
Xxxxx X. Xxxxxxxxx Xxx Xxxxxxxx, President
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SCHEDULE A
AMENDMENT TO CABLE TELEVISION
AND TELEPHONE SERVICE AGREEMENT
DESCRIPTION OF SERVICE OR SALE OPERATOR'S PORTION
------------------------------ ------------------
X. Xxxxx 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 35% for first month of service and 10% for each
Plans at each of Operator's Truckstop. additional month of service under Power Plan
3. Gross Receipts* from the sale of 10% of each months receipts will be placed in a
memberships by telemarketing staff. pool 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.
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