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EXHIBIT 10.9
CABLE TELEVISION AND TELEPHONE SERVICE AGREEMENT
THIS CABLE TELEVISION AND TELEPHONE SERVICE AGREEMENT (this
"Agreement") is entered into this 28th day of October, 1995, 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 Travel Ports of
America, Inc., a New York corporation ("Operator"), with its headquarters at
0000 Xxxxxx Xxxxx, Xxxxxxxx X, Xxxxxxxxx, Xxx Xxxx.
WHEREAS, Operator: (i) currently owns or operates thirteen (13)
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 or near 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 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. Operator and PNV hereby agree that PNV shall
install the System at certain of the Truckstops and that Operator and PNV shall
operate the System at such Truckstops pursuant to the terms of this Agreement.
PNV shall initially install the System at one or more of Operator's Truckstop(s)
to be mutually agreed upon by PNV and Operator within thirty (30) days of the
date of this Agreement. If the gross revenue derived from the sale of the
Services at such initial Truckstop(s) exceeds an average of $55 per wired stall
per month for the period commencing 90 days after the Truckstop Service Date
(defined in Section 2(g)) and terminating 180 days after the Truckstop Service
Date (the "Financial Milestone"), then PNV shall, subject to mutual agreement,
have the right to proceed with the installation of the System at certain of the
Operator's remaining Truckstops. If the Financial Milestones are
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not met, then: (i) the Operator shall not be obligated to permit and PNV shall
not be obligated to proceed with the installation of the System at the
Operator's other Truckstops; and (ii) the System will remain in place at the
initial Truckstops subject to the parties' rights to cause removal of the System
pursuant to Section 3(b).
2. Installation of Equipment.
(a) PNV shall, at its sole cost and expense, and in the
manner herein provided, install at each Truckstop equipment consisting of the
following:
(i) all 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) equipment designed to (a) monitor the use of
the Services and (b) account for all
receipts for billing and revenue sharing
purposes either independently and/or in
conjunction with the Truckstop's existing
cash register system including the right to
develop and install debit card dispensers
and readers to be used for the automatic
sale of the Services.
(iv) 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 shall, with
Operator's consent, which shall not be unreasonably withheld, have the right to
make additions to and deletions from the PNV Equipment to be installed at each
Truckstop. PNV shall attempt, on average, to provide the Services to at least
75% of the truck parking spaces located at each Truckstop at which it installs
the System. However, PNV shall determine at which Truckstops it shall, with
Operator's consent, install the System and the precise number and location of
the truck parking
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spaces at which the Services shall be provided at such Truckstops 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 PNV and Operator may deem relevant.
(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 and sale of the Services
(hereinafter collectively referred to as the "Equipment Area").
(c) PNV shall install, at its sole cost and expense, and
with the approval of Operator, underground and above ground but not overhead,
transmission and distribution cables and equipment through all parking areas at
each Truckstop (and any Operator owned or managed hotels and motels, located at
or adjacent to a Truckstop, as may be mutually agreed) as is necessary and
appropriate to install the System and to provide the Services. The
implementation and construction of the System at each Truckstop shall at all
times be subject to Operator's reasonable prior approval. PNV shall, with
Operator's consent, have the right to run additional transmission lines under
and through each Truckstop, at reasonable times and locations, to serve adjacent
properties (including hotels or motels), if in the future any such Truckstop
expands its operations to include such properties.
(d) PNV shall be entitled to have continued access to the
Equipment Area and all parking areas for purposes of installing, repairing and
monitoring the System and the Services. PNV shall take care and make every
reasonable effort to minimize damage and disruption to the premises during the
installation and operation of the System at each Truckstop. Prior to
commencement of any construction, Operator will approve the methods and
materials to be used by PNV with respect to the installation of the System. PNV
will repair any material 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.
(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 of the System and
the providing of the Services. Operator shall assist PNV in obtaining any such
licenses, permits, or approvals upon PNV's request.
(f) 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: (i) minimize the disruption
to traffic flow and parking space availability;
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and (ii) complete the installation of the System at each Truckstop within
forty-five (45) days of commencement of the installation at each Truckstop.
(g) After 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 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 shall: (i) remove, at its sole cost and expense, any or all of the PNV
Equipment (except underground wiring and cable) from each Truckstop; or (ii)
sell or lease it to the Operator or its successors, nominees or assignees. PNV
shall, if it elects to remove the System, restore each Truckstop as near as
reasonably possible to the condition of such premises prior to the installation
of the System, normal wear and tear excepted, but shall not be obligated to
remove any underground cables. Operator and PNV hereby acknowledge and agree
that either party shall have the right to cause PNV to remove the System and
terminate the Services at any Truckstop that does not have average gross revenue
of $35 per wired stall per month during any twelve (12) month period and that
said termination shall not constitute a breach of this Agreement as it relates
to other Truckstops.
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 shall, with the
consent of Operator, have the right to
determine and make changes to the
programming schedule from time to time.
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(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 (determined after payment of all
directly related expenses only) 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
(determined after payment of all directly
related expenses only) 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 may also provide telephone service
to certain parking slots at each Truckstop.
The current telephone and related services
which may be 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 have the right to
determine and make changes to the specific
types of telecommunication services which
may be provided to a particular Truckstop
from time to time. If PNV and Operator
mutually agree to permit PNV to provide
phone service to areas of the Truckstops,
other than the parking lot, PNV and Operator
shall mutually agree as to the profit
allocations with respect to such services.
5. Operation of the System and Sale and Promotion of the Services.
(a) PNV shall, from time to time, at its sole cost and
expense, train the Operator and its fuel desk employees with respect to the
operation of the point of sale equipment and the sale and promotion of the
Services. The Operator and its fuel desk employees shall be responsible for the
operation of the point of sale equipment and the sale and promotion of the
Services. The Operator shall be responsible for training its future employees
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with respect to the operation of the point of sale equipment and the sale and
promotion of the Services.
(b) Operator may also supply PNV, at no cost to PNV,
certain advertising and promotional materials relating to the System and the
Services which may be developed by Operator, with the approval of PNV. PNV may
also develop and supply to Operator, at no cost to Operator, certain advertising
and promotional materials relating to the System and the Services. Operator
shall utilize and display all such materials at each Truckstop with respect to
the sale and promotion of the Services.
(c) 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. Operator and PNV 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.
Operator and PNV shall share the cost of implementing and funding any such
mutually agreed upon incentive programs.
(d) PNV shall provide proper follow up training for
Operator's personnel during their working hours with respect to the sale and
promotion of the Services, the operation of the System, and the maintenance of
the PNV Equipment as may be reasonably requested by PNV from time to time. PNV
shall, with the consent of Operator, be entitled to have its own employees or
agents engage in the sale and the promotion of the Services at any Truckstop,
provided that PNV's employees and agents do not interfere with the operation of
said Truckstop.
6. Maintenance of the PNV Equipment and the System.
(a) PNV agrees to 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) Operator shall assign responsibility for the day to
day maintenance of the System (as described in Sections 6(b)(i) and (ii) below)
to the Operator's trained staff members.
(i) Such 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 frequent
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.
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(ii) PNV shall make all repairs other than
those required to be made by Operator
pursuant to the preceding subparagraph (i).
If a mechanical problem arises other than
through a failed connecting cable or
accessory, or if any other problem arises
for which PNV is responsible, 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 repair
will be billed directly to PNV.
7. Term.
(a) 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 Term, PNV and Operator may mutually agree to
an additional five (5) year renewal term (the "Optional Renewal Term"), provided
that, as a condition to the commencement of the Optional Renewal Term, Operator
shall be entitled to receipt of the increased percentage of Gross Receipts set
forth in Section 8(a).
8. Fees.
(a) The monthly Gross Receipts derived 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; (ii)
during the Automatic Renewal Term, sixty percent (60%) to PNV and forty percent
(40%) to Operator; and (iii) during the Optional Renewal Term, fifty-five
percent (55%) to PNV and forty-five percent (45%) 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 during such period less the amount of taxes, if any, which are
required to be charged by Operator 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) for 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).
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(b) Operator shall collect all applicable fees and taxes
from the users of the Services and shall secure and account for all funds
collected. Billing is to be made on a unit basis in accordance with the rates
and procedures to be specified by PNV from time to time. The current charges for
the Services provided are as set forth on Schedule 5 hereto. PNV may, with
Operator's consent, which shall not be unreasonably withheld, adjust the charge
per use for any particular Service and shall notify Operator in writing of such
change and the effective date of the change. If PNV adjusts the charges for the
Services at any truckstop within 100 miles of a Truckstop owned by Operator (the
"Effected Truckstop"), PNV shall provide Operator with notice and shall
correspondingly adjust the charges for the Services at the Effected Truckstop,
if so requested by Operator. All monies collected by Operator shall be held in
trust by Operator for PNV and shall remain the property of PNV. Any taxes due on
the Services provided are to be collected by Operator from the user over and
above the charge established by PNV for the particular Services and said taxes
shall be remitted by Operator to the proper governmental agency.
(c) All Gross Receipts and other revenues received by
Operator with respect to the sale of the Services shall be deposited by Operator
into PNV's local bank account on a weekly basis. All amounts due to Operator
from PNV for each calendar month shall be paid to Operator by PNV within ten
(10) days of the close of each calendar month.
(d) At weekly intervals during each calendar month,
Operator shall inform PNV of: (i) the amount of the use of the Services; (ii)
the amount of the Gross Receipts and other revenue received with respect to the
sale of the Services, Park 'N View cable drops, adapters and connectors,
telephones and television rentals; (iii) the amount of the taxes required to be
collected and paid by the Operator; and (iv) other such operating data of each
Truckstop as PNV may reasonably request which will assist PNV in evaluating the
use and marketing of the Services.
(e) The books and records of the Operator and PNV
pertinent to the Gross Receipts 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. PNV shall provide Operator
with detailed summaries of all direct expenses incurred with respect to the sale
of programming and advertising pursuant to Sections 4(a)(ii) and (iii).
9. Exclusivity.
(a) For the Term and the Automatic Renewal Term, PNV
shall, as to each Truckstop at which the Services are provided, have: (i) the
exclusive right to sell to Operator coaxial and phone cables for use with the
Services at competitive prices; and (ii) the nonexclusive right to sell to
Operator television, telephone and cable accessories and adapters
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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. PNV shall have the exclusive right to provide at no
cost to Operator televisions for rent (but not for sale) to the users of the
Services at each Truckstop. All fees charged for television rentals shall be
considered Gross Receipts and shall be allocated between Operator and PNV
pursuant to the provisions of Section 8(a).
10. Rights Granted to PNV. Operator hereby grants and conveys to
PNV, for the Term of this Agreement (and any renewal term), a non-exclusive
easement, license and covenant in, over, under and across the premises of each
Truckstop at which the System is installed. The purpose of said easement and
license shall be for installing, maintaining, repairing, replacing and operating
the System and providing the Services. PNV shall be entitled to record this
Agreement or a memorandum memorializing the terms of the easement, license and
covenant granted herein for purposes of perfecting its interest as a matter of
public record. Notwithstanding the foregoing, if this Agreement is terminated
with respect to one or more Truckstops, the rights granted to PNV pursuant to
this Section 10 shall become null and void with respect to such Truckstop.
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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. PNV shall qualify to
do business in each jurisdiction in which it installs the System and provides
the Services.
(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 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 the State of New York and has
full corporate power and authority: (i) to enter into this Agreement; and (ii)
to carry out the other transactions and agreements contemplated by this
Agreement. Operator is qualified to do business in each jurisdiction in which it
owns or operates a Truckstop.
(b) The execution, delivery and performance of this
Agreement by Operator has been duly authorized by all necessary corporate 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
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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 Articles of Incorporation, By-laws, 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.
13. Risk of Loss and Insurance; Indemnification.
(a) PNV shall bear the risk of loss for: (i) damage to or
destruction of the PNV Equipment and the System installed at each Truckstop
which is caused by the negligence or willful misconduct of PNV, its employees,
contractors, agents and customers; and (ii) injury to persons or damage to
property arising from the installation or repair of the PNV Equipment and the
System (except to the extent such damage is occasioned by any act, omission or
negligence of Operator, its employees, contractors or agents).
(b) Operator shall be responsible for the repair or
replacement of the PNV Equipment resulting from damage or destruction caused by
the negligence or willful misconduct of the Operator, its employees, 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 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 loss payee 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,
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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.
15. Assignment.
(a) Operator may sell, assign, transfer or otherwise
dispose of its interest in one or more of the Truckstops to an unaffiliated
third party (through a change of control or otherwise) and the acquiror may, but
shall not be required, to assume Operator's obligations hereunder and Operator
shall have no further obligation to PNV hereunder.
(b) PNV may assign 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 the acquiror
of such interest 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, 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 and further recognizes the fact that serious
financial loss, or loss of potential business may be incurred by PNV through the
divulgence of any information with respect to any of the foregoing. Accordingly,
Operator agrees to maintain and cause each of its employees and agents to
maintain and keep strictly confidential all information that it obtains or
receives in conjunction with the System, the PNV Equipment and the Services,
provided that, information which is: (i) already in the public domain; (ii)
developed by Operator independently; or (iii) obtained by Operator from third
parties with no obligation of confidentiality, shall not be subject hereto. In
the event of any breach of this provision, Operator agrees to reimburse,
indemnify and hold PNV harmless with respect to any and all damages, costs and
expenses that it may incur in connection with such breach. 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.
Xxxxxx Xxxxxxxx, L.L.P.
0000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Fax Number: (000) 000-0000
To Operator: Xxxxx Xxxxxxx
Vice President of Development
Travel Ports of America, Inc.
0000 Xxxxxx Xxxxx, Xxxxxxxx X
Xxxxxxxxx, Xxx Xxxx 00000
Fax Number: (000) 000-0000
With a copy to: Xxxxxx Xxxx, Esq.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Fax Number: (000) 000-0000
All notices shall be deemed delivered only upon actual receipt provided,
however, that delivery shall be deemed to be made if delivery is offered to the
recipient and acceptance of delivery is refused. 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 19(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
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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 as it applies to each
Truckstop shall be governed in all respects by the laws of the jurisdiction 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.
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(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) Favored Nations. PNV agrees that the profit or
revenue allocations set forth in Sections 4(a)(ii), 4(a)(iii) and 8(a) of this
Agreement shall be amended to reflect any increased profit or revenue
allocations provided to either: (i) TA Operating Corp.; (ii) Highway Service
Ventures, Inc.; (iii) Pilot Corporation; or (iv) Petro Stopping Centers, L.P.
pursuant to contracts to be entered into 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 and Automatic Renewal Term
of this Agreement as set forth herein Section 7(a), Operator shall agree to a
comparable extension of the Term and Automatic Renewal Term of this Agreement as
a condition to its right to receive the increased profit or revenue allocations.
(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.
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/ Xxx Xxxxxxxx
------------------------------- ------------------------------
Xxx Xxxxxxxx, President
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Travel Ports of America, Inc.,
a New York corporation
-----------------------------
By: /s/ Xxxx Xxxxxxx
----------------------------- ------------------------------
Xxxx Xxxxxxx
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SCHEDULE 1
LIST OF TRUCKSTOPS OWNED OR OPERATED
BY OPERATOR
==========================================================================================
Truckstop State Travel Port's Ref #
------------------------------------------------------------------------------------------
1 Lake Station Indiana 161
------------------------------------------------------------------------------------------
2 Xxxxxx Indiana 151
------------------------------------------------------------------------------------------
3 Greenland New Hampshire 601
------------------------------------------------------------------------------------------
4 Paulsboro New Jersey 131
------------------------------------------------------------------------------------------
5 Binghamton New York 301
------------------------------------------------------------------------------------------
6 Dansville New York 101
------------------------------------------------------------------------------------------
7 Fultonville New York 401
------------------------------------------------------------------------------------------
8 Maybrook New York 501
------------------------------------------------------------------------------------------
9 Candler North Carolina 211
------------------------------------------------------------------------------------------
10 Bloomsburg Pennsylvania 121
------------------------------------------------------------------------------------------
11 Greencastle Pennsylvania 141
------------------------------------------------------------------------------------------
12 Milesburg Pennsylvania 321
------------------------------------------------------------------------------------------
00 Xxxxxxx Xxxxx Xxxxxxxxxxxx 631
==========================================================================================
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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
Rental coaxial cables
Rental telephones and cables
Rental Televisions
Cable TV "billing" computer and software
Prepaid debit card dispenser
Telephone & Cable TV accessories for resale
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SCHEDULE 3
LIST OF CURRENT PROGRAMMING SCHEDULE
Current Programming Schedule:
=============================================================================================
Channel # Program
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
2* Playboy
---------------------------------------------------------------------------------------------
3 CBS
---------------------------------------------------------------------------------------------
4 ESPN
---------------------------------------------------------------------------------------------
5 Fox
---------------------------------------------------------------------------------------------
6 HBO (East)
---------------------------------------------------------------------------------------------
7 WGN Chicago
---------------------------------------------------------------------------------------------
8 USA
---------------------------------------------------------------------------------------------
9 WTBS Atlanta
---------------------------------------------------------------------------------------------
10 PNV Program Guide and Advertising
---------------------------------------------------------------------------------------------
11 TNN
---------------------------------------------------------------------------------------------
12 Headline News
---------------------------------------------------------------------------------------------
13 ABC
=============================================================================================
* This program forms part of a premium tier of service.
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SCHEDULE 4
LIST OF CURRENT TELEPHONE SERVICES
Current Telephone Services:
1-800 calls
Local calls
Operator access
Direct call back to stall # (automated)
Message waiting
Wake-up calls (automated)
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SCHEDULE 5
LIST OF CURRENT PRICES OF SERVICES
============================================================================================
Rates 6 Hour 24 Hour
----- ------ -------
--------------------------------------------------------------------------------------------
Premium $ 4.98 $ 9.36
--------------------------------------------------------------------------------------------
Premium Plus Playboy $ 7.98 $12.96
--------------------------------------------------------------------------------------------
Premium & TV Rental $12.42 $21.12
--------------------------------------------------------------------------------------------
Premium Plus Playboy & TV Rental $14.46 $23.04
--------------------------------------------------------------------------------------------
Phone Only $ 3.00 $ 6.00
============================================================================================
Premium service includes unlimited phone service listed on Schedule 4. Coaxial
Cable Rental is $2.00 plus a $20.00 refundable deposit. Cable and adapters are
available for sale in the store. Tax not included.
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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 19th day of
January, 1998, by and between Park 'N View, Inc. ("PNV") and Travel Ports of
America, Inc. ("Operator").
WHEREAS, PNV and Operator have entered into that certain Cable
Television and Telephone Services Agreement dated October 28, 1995 (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.
TRAVEL PORTS OF AMERICA, INC. PARK 'N VIEW, Inc.,
a Delaware Corporation
By: /s/ Xxx XxXxxxx By: /s/ Xxx Xxxxxxxx
------------------------------- -------------------------------
Xxx XxXxxxx 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 35% for first five (5) years of the Term;
and daily memberships and other services 40% for second five (5) years of the Term
from the 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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