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EXHIBIT 10.2(B)(c)
SECOND AMENDMENT TO MEDIA NETWORK SERVICES AGREEMENT
This Second Amendment to the Media Network Services Agreement (the
"Amendment") is made and entered as of this 14th day of December, 1999, by and
between 7-Eleven, Inc., formerly known as The Southland Corporation ("7-Eleven")
and NGN Next Generation Network formerly known as Xxxxxx Media Corp. and The
Xxxxxx Group, Inc. ("NGN").
WHEREAS, 7-Eleven and NGN entered into that certain Media Network
Services Agreement on or about April 18, 1995 (the "Media Agreement") as amended
by the First Amendment dated April I, 1998 ("First Amendment'); and
WHEREAS, 7-Eleven and NGN desire to amend the Media Agreement a second
time for the purposes set forth below.
NOW, THEREFORE, for and in consideration of the mutual covenants,
promises and conditions contained herein, the parties agree to amend the Media
Agreement as follows:
1. Section 2 -HARDWARE AND HARDWARE INSTALLATION.
Section 2.01 is amended as follows:
"(a) NGN will, at its sole cost and expense, de-install the
existing Hardware consisting of the video monitor and related equipment
in the Stores as the Overhead Pack Merchandisers ("OPM") are removed
from the OPM Stores and will relocate the Hardware to a mutually agreed
upon more visible location at the OPM Store."
The Hardware Installation Rollout Schedule referenced in section 2.03
of the Media Agreement ("Installation Schedule") as previously amended by the
First Amendment is amended as follows:
(b) "NGN shall complete the Hardware Installation in at least
4,800 total Stores no later than November 30, 2000. NGN will install,
at its sole cost and expense, the new counter mounted flat video
screens and the related hardware and wiring, including any necessary
telephone lines as set forth in Exhibit A (the "'New Hardware") in all
new Stores that are opened by 7-Eleven during the Term in ADI areas
where NGN has previously installed the Hardware or in ADI areas where
NGN intends to install the Hardware or New Hardware. NGN and 7-Eleven
will discuss and agree upon a New Hardware Installation Schedule for
the remaining Stores based on mutually agreed upon ADI areas. The New
Hardware Installation Schedule is attached herein as Exhibit C.
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(c) 7-Eleven acknowledges that the New Hardware Installation
referenced in subsection (b) above is contingent upon the removal of
the OPM in the OPM Stores. As such, NGN shall complete the hardware
Installation in the OPM Stores no later than ninety (90) days after the
OPM has been removed from the OPM Stores.
(d) NGN shall pay 7-Eleven liquidated damages (and not as a
penalty) the amount of $150,000 on or before December 31, 2000, if for
whatever reason, the Hardware Installation has not been completed in at
least 4,800 Stores by November 30, 2000. Except as provided in (e)
below, the liquidated damages shall represent 7-Eleven's sole remedy
against NGN in the event the Installation Schedule is not met.
(e) If, for whatever reason, the Hardware has not been
installed in at least 4,800 total Stores by May 30, 2001, 7-Eleven may
immediately terminate the Media Agreement upon thirty (30) days written
notice to NGN.
(f) 7-Eleven agrees to waive the liquidated damages of
$100,000 under section 2 (b) of the First Amendment to Media Network
Services Agreement provided that NGN: (i) pays 7-Eleven the Program Fee
set forth in section 2 of the Amendment by December 21, 1999; and (ii)
meets its obligations under the Media Agreement and the Amendment.
(g) The New Hardware Installation deadlines set forth in
subparagraph (b), (c) and (d) above shall he extended by one (1) day
for each day of any delay by NGN in meeting the Hardware Installation
Schedule that is caused solely by the actions of 7-Eleven, its agents
or participating franchisees. Prior to the Installation Schedule being
extended, NGN shall provide 7-Eleven with written notice of any claimed
delay caused solely by 7-Eleven."
2. Section 6 - PROGRAM FEE.
Section 6.02 of the Media Agreement is amended as follows:
"(a) For the 1999 Fee Year only, NGN will pay t7-Eleven on or
before December 21st 1999, $1,500,000 which represents a partial
payment of the difference between the Program Fees paid and the Annual
Minimum Payment. The balance of the Program Fees for the 1999 Fee Year
will be paid by NGN on or before January 31, 2000. Program Fees for all
subsequent Fee Years will be paid according to the Media Agreement."
Except as provided by this Amendment, all of the terms and conditions
in the Media Agreement shall remain in full force and effect and it constitutes
the legal and binding obligations of NGN and 7-Eleven.
The Amendment, along with the Media Agreement and First Amendment is
the entire agreement between the parties and supersedes all prior agreements or
representations, whether written or oral or through course of dealing between
the parties.
IN WITNESS WHEREOF, the parties have executed the Amendment as of the day and
year first set out above.
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7-ELEVEN, INC.
Attest: ________________________ By: ____________________________
Assistant Secretary
Its: ____________________________
NGN NEXT GENERATION NETWORK
By: _______________________________
Its: _______________________________
