EXHIBIT 10.44
MOTOR MEDIA, INC.
0000 XXXXXX XXXXX * XX XXXX, XXXXX 00000
DISPLAY SPACE AGREEMENT * TRUCK STOPS
THIS AGREEMENT is made this 30th day of January, 1997, by and between Petro
Stopping Centers, L.P., a Delaware limited partnership, an operator and/or owner
of certain truck stops (the "Truck Stops") known as Petro Stopping Centers
(hereinafter referred to as the "LESSOR"), and MOTOR MEDIA, INC., a Texas
corporation, of 0000 Xxxxxx Xxxxx, Xx Xxxx, Xxxxx 00000 (hereinafter referred to
as "Motor Media" or the "LESSEE").
LEASE AND INSTALLATION
The LESSOR hereby leases exclusively to the LESSEE, for advertising use the
areas of the LESSOR's Truck Stops as are described on Exhibit A for LESSEE's
installation of Truck Stop advertising displays consistent with past practices
or as otherwise may be approved by LESSOR, which approval shall not be
unreasonably withheld or delayed. LESSEE shall have quiet enjoyment of the
described areas during the term hereof.
RENT
For and in consideration of this lease the LESSEE shall have the exclusive right
and option to install and maintain at LESSEE's sole cost advertising display
faces at the Truck Stops for the LESSOR. The LESSEE shall also pay to LESSOR
25% of the gross advertising revenue received by the LESSEE from advertisers
using the display faces at the Truck Stops. All such sums shall be payable
quarterly, within 10 days of the end of each three month period. The LESSEE
intends to install sufficient quantities of displays, from time to time,
throughout the LESSOR's Truck Stops to meet the needs of the business
advertisers. The LESSEE reserves the right to remove any display if the
advertising revenue is insufficient to warrant the continued costs of
maintenance of such display. Any such installations and removals are to be done
at the sole expense of the LESSEE.
TERM
The term of this lease shall commence on the date of this Agreement (the
"Commencement Date") and shall continue until April 30, 2002. After such term,
the lease shall continue until canceled by either party by giving 60 days prior
written notice to the other party. Upon such termination, the LESSEE will
remove all of its displays and other property from the LESSOR's premises within
60 days.
The provisions on pages 2 and 3 are hereby incorporated for all purposes and
constitute an integral part of this Agreement.
XXXXX X. XXXXXXXX, XX. (000) 000-0000
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LESSEE CONTACT PERSON Telephone Number
XXXX X. XXXXXXX (000) 000-0000
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LESSOR CONTACT PERSON Telephone Number
LESSOR: PETRO STOPPING CENTERS, L.P.
By: /s/ Xxxxx X. Zine
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XXXXX ZINE, Executive Vice President
LESSEE: MOTOR MEDIA, INC.
By: /s/ X.X. Xxxxxxxx, Xx.
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XXXXX X. XXXXXXXX, XX., President
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USE OF PREMISES
The LESSOR grants to the LESSEE's exclusive right and permission to display
commercial, industrial, public service or charitable advertising on each of the
display faces in the Truck Stops, subject to the following conditions.
(a) No advertising is to include advertisements for illegal drugs or any
products which may not legally be sold within the municipality, county, or state
in which any of the LESSOR's Truck Stops are located, nor any advertisement
containing or depicting any matter which could be reasonably considered obscene,
immoral, or offensive to the majority or a substantial minority of the citizens
in the community, nor advertisements for any specific products which the LESSOR
has requested the LESSEE to refrain from advertising. In any dispute involving
this provision the LESSOR shall make the final decision or determination in its
reasonable discretion.
(b) The displays shall be kept in safe condition and in good order and repair,
with any damage to be repaired at the LESSEE's expense, except damage caused by
willful and negligent acts of the LESSOR or its partners, employees,
contractors, subcontractors or agents.
(c) The LESSEE will inspect and service the displays periodically and when
requested to do so by the LESSOR or by the respective advertisers. The LESSOR
will notify the LESSEE whenever any incident of damage or vandalism comes to the
LESSOR's attention, and the LESSEE agrees to promptly service the applicable
display as soon as practicable after receiving such notice.
(d) During such times as no revenue producing commercial or industrial
advertising is displayed on the various display faces, the LESSEE will install
and maintain interim use public service, charitable, self promotion or nonprofit
institutional display copy without charge or will install and maintain interim
use display copy of a generalized promotional nature of the LESSOR's facility
produced at the expense of the LESSOR, without charge for such use.
(e) All displays, directory faces, display faces, and other materials placed or
installed on or in the LESSOR's premises by the LESSEE are the LESSEE's trade
fixtures and equipment, and shall be and remain the LESSEE's trade fixtures and
equipment, and shall be and remain the LESSEE's property, and may be removed by
the LESSEE at any time prior to or within a reasonable time after the
termination of this lease or any extension thereof. The LESSOR agrees to allow
the LESSEE full access to the property occupied by such advertising display
faces for the purpose of installing, maintaining, changing or removing them
during normal Truck Stop hours at the expense of LESSEE, including expenses of
repairing damages resulting from removal.
(f) LESSOR shall not permit any obstruction (including, without limitation,
kiosks, booths, furniture, planters, decorations or any other obstruction) to be
placed within fifteen (15) feet of a Truck Stop advertising display.
LESSOR grants to LESSEE the exclusive right to provide static, back lighted
advertising in the common areas of the Truck Stops.
(g) Neither LESSOR nor LESSEE will relocate the Truck Stop advertising display
units after the locations have been agreed to on Exhibit A.
MAINTENANCE
The displays shall be substantially and safely constructed of standard building
materials and shall be designed and installed in compliance with all applicable
building codes. The displays shall be affixed to the wall with appropriate
installation hardware. Where appropriate, the displays will contain lighting
fixtures and apparatus for internal illumination with wiring connected to the
LESSOR's power supply which power shall be supplied to LESSEE without
interruption or charge. The LESSEE agrees to assist the LESSOR in the obtaining
of all necessary permits, licenses or authorizations for the installation,
maintenance or advertising use of the displays and the LESSEE will arrange for
the connection to the LESSOR's power supply. It is understood that the times of
lighting of each display will coincide with the times the LESSOR's Truck Stop is
open to the public.
HOLD HARMLESS
The LESSEE agrees to indemnify and hold harmless the LESSOR, the owner of the
Truck Stop and their respective directors, officers, shareholders, partners,
agents, attorneys and employees from any and all claims, damages, demands,
liabilities, costs and/or expenses, including reasonable attorneys' fees, on
account of bodily injury or physical property damage caused by or resulting from
the construction, maintenance, repair, change or removal of the LESSEE's
displays on the LESSOR's property, unless such claims or demands are caused by
or result from breach by LESSOR of this Agreement or the negligent or willful
act of LESSOR and/or its partners, employees, contractors, subcontractors or
agents. The LESSOR agrees to indemnify and hold harmless the LESSEE from any
and all claims, damages, demands, liabilities, costs and/or expenses, including
reasonable attorneys' fees, on account of bodily injury or physical property
damage caused by or resulting from any negligent or willful act of the LESSOR or
the LESSOR's partners, agents, employees, contractors and/or subcontractors.
REPRESENTATIONS AND WARRANTIES
Both persons signing this lease on behalf of the LESSOR and LESSEE represent and
warrant that they have full authority to enter into this agreement on behalf of
the party represented. Neither the LESSOR nor the LESSEE shall be bound by any
agreement or representation, express or implied, not contained herein. This
lease shall be deemed to have been accepted and its terms enforceable only upon
the execution hereof by both parties in the spaces provided.
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COLLECTION OF REVENUES AND PAYMENT OF FEES
At the time of each such payment of rent hereunder, LESSEE shall provide LESSOR
a written statement describing the calculation of the payment. In the event
LESSEE shall fail to pay to LESSOR any sum required under this Agreement on or
before the due date thereof, the amount past due and owing to LESSOR shall bear
interest from the due date until paid at the lesser of one percent (1.0%) per
month (i.e., twelve percent (12%) per annum), or the maximum interest rate
allowable by law. Acceptance by LESSOR of any payments under this Agreement
shall not prevent LESSOR from disputing the amount owed or from demanding more
information from LESSEE regarding payments finally due for a period of two years
following payment, and such acceptance of any payment by LESSOR shall not
constitute a waiver of any breach of any term or provision of this Agreement by
LESSEE if any such breach shall have occurred.
BOOKS AND RECORDS
LESSEE shall keep complete and accurate books and records of all revenues
received and distributed under this Agreement and of all transactions relating
to this Agreement. LESSEE shall make such books and records readily available
to LESSOR, its agents or representatives, at such reasonable times during normal
business hours as LESSOR may from time to time reasonably request for
inspection, copying and extracting. LESSEE shall keep such books and records at
its principal offices in the United States in accordance with United States
generally accepted accounting principles, consistently applied, and such books
and records shall be retained by LESSEE and kept available for at least two
years after the termination of this Agreement for possible inspection, copying,
extracting and/or audit. LESSOR or its duly authorized agents or
representatives shall have the right to review and, through an independent
certified public accounting firm selected by LESSOR and reasonably acceptable to
LESSEE, to conduct audits with respect to the books, records, and all other
documents and materials in the possession or under the control of LESSEE
relating to this Agreement. If the accounting firm selected to conduct an audit
is not reasonably acceptable to LESSEE, then each party shall choose one
accounting firm and such firms shall then choose a third independent certified
public accounting firm, whose determination as to all matters shall be final and
conclusive. Each party choosing an accounting firm shall bear the costs of such
accounting firm, and the cost of the third accounting firm if any, shall be
borne by the party requesting such audit, unless such audit reveals a total
underpayment to LESSOR of at least $10,000, in which case the costs of the audit
shall be borne by LESSEE.
INSURANCE
LESSEE shall provide general liability insurance of at least $1 million each
occurrence with an aggregate of $2 million and an annual deductible of no more
than $50,000 from an insurance company licensed to do business in Texas which is
financially sound and reputable and which is reasonably acceptable to LESSOR.
Such insurance policy shall name LESSOR and owners of the Truck Stop as
additional insureds and shall also require that LESSOR and owners be given
written notice thirty (30) days prior to cancellation. Should LESSEE not
provide LESSOR with a certificate of insurance certifying coverage in accordance
with this Section 4, LESSOR may obtain its own insurance and LESSEE shall
immediately pay to LESSOR the costs and charges for such insurance together with
interest thereon in accordance with Section 2 above from the date of LESSOR's
payment.
ASSIGNMENT
This Agreement may not be assigned by LESSEE without the prior written consent
of LESSOR, which consent may be withheld in the absolute discretion of LESSOR.
Any assignment in violation of this section shall be void and shall result in
the termination of this Agreement at the election of LESSOR, other than that
provisions "HOLD HARMLESS." Any sale, assignment or other transaction which
results in Xxxxx X. Xxxxxxxx, Xx. holding less than 66% of the voting power of
LESSEE shall be deemed an assignment for purposes of this paragraph.
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