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EXHIBIT 6.g
Neighborhood Box Office, Inc
The Company has entered into agreements with 18 malls managed by JP
Realty Inc. The following list describes each mall. Following the list is a form
of common agreement for each mall.
JP Realty (18 Centers) Contract Term --
Property Name Location
------------- --------
Cottonwood Mall Salt Lake City, UT
Boise Town Square Boise, ID
NorthTown Mall Spokane, WA
Provo Towne Center Provo, UT
Spokane Valley Mall Spokane, WA
Animus Valley Mall Farmington, NM
Cache Valley Mall Logan, UT
▇▇▇▇▇▇▇▇▇ Mall Casper, WY
Grand Teton Mall Idaho Falls, ID
North Plains Mall ▇▇▇▇▇▇, NM
Pine Ridge Mall Chubbuck, ID
Red Cliffs Mall St. ▇▇▇▇▇▇, UT
Salem Center Salem, OR
Sierra Vista Mall Sierra Vista, AZ
Silver Lake Coeur D'Alene, ID
Three Rivers Keslo, WA
Visalia Mall Visalia, CA
White Mountain Mall Rock Springs, WY
The Company has entered into agreements with 2 malls managed by Prime
Retail Inc. The following list describes each mall. Following the list is a form
of common agreement for each mall.
Prime Retail (2 Centers) Contract Term --
Property Name Location
------------- --------
Prime Retail Outlet Of Puerto Rico Barceloneta, PR
Prime Retail Outlet Of Grove City Grove City, PA
The Company has entered into agreements with 31 malls managed by Konover
Property Trust. The following list describes each mall. Following the list is a
form of common agreement for each mall.
Konover Property Trust (31 Centers) Contract Term --
Property Name Location
------------- --------
Factory Stores Of America Boaz, AL
Factory Stores Of America Mesa, AZ
Factory Stores Of America Tucson, AZ
Factory Stores Of America Graceville, FL
Factory Stores Of America Lake Park, GA
Factory Stores Of America Story City, IA
Factory Stores Of America West Frankfort, IL
Factory Stores Of America Georgetown, KY
Factory Stores Of America ▇▇▇▇▇▇, KY
Factory Stores Of America Arcadia, LA
Factory Stores Of America Iowa, LA
Factory Stores Of America Kittery, ME
Factory Stores Of America Lebanon, MO
Factory Stores Of America Tupelo, MS
Factory Stores Of America Nebraska City, NE
Factory Stores Of America ▇▇▇▇ ▇▇▇▇▇▇, NY
Factory Stores Of America Blountville, TN
Factory Stores Of America Crossville, TN
Factory Stores Of America Union City, TN
Factory Stores Of America Corsicana, TX
Factory Stores Of America Hempstead, TX
Factory Stores Of America La Marque, TX
Factory Stores Of America Livingston, TX
Factory Stores Of America Mineral Wells, TX
Factory Stores Of America Draper, UT
Factory Stores Of America Branson, MO
Factory Stores Of America Vacaville, CA
Factory Stores Of America Mount Pleasant, SC
Factory Stores Of America Smithfield, NC
Factory Stores Of America ▇▇▇▇▇▇, NH
Factory Stores Of America Northbend, WA
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Neighborhood Box Office, Inc
Contract Services Agreement
THIS CONTRACT SERVICES AGREEMENT (the "Agreement") is entered into
effective as of August ______, 1999 (the "Effective Date") by and between
Neighborhood Box Office, Inc., a Utah corporation ("NBO"), with its principal
place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, and Price Development Company, L.P., a Delaware corporation ("PDC"),
with its principal place of business at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇. NBO and PDC are sometimes, collectively, referred to herein as the
"Parties."
RECITALS:
A. WHEREAS, NBO is in the business of developing, marketing, owning and
operating remote gift certificate distribution systems (the "Network");
B. WHEREAS, PDC is in the business of owning, operating and managing
retail space and mall facilities.
C. WHEREAS, the Parties desire to enter into a relationship whereby NBO
will make available to and install its remote gift certificate distribution
machines (individually, a "Kiosk", collectively, the "Kiosks") a "Counter Top
Sales Unit" in certain of PDC's properties and ("other network components") such
as; retail and corporate sales of the mall gift certificate through the Internet
and via telephone.
NOW, THEREFORE, In consideration of the premises set forth above, the
mutual promises, covenants, agreements and benefits set forth hereinbelow, and
for other good and valuable consideration, the Parties agree as follows:
1. OBLIGATIONS OF PDC.
a. Distribution. PDC hereby grants NBO the exclusive right to offer,
sell and distribute through its Kiosks, Gift Certificates ("Mall Gift
Certificates"). Event Tickets (where ticketing inventory is available to NBO,
and upon prior approval from PDC, L.P.). In addition to the Kiosks, NBO will
also have the exclusive right to sell Gift Certificates ("Mall Gift
Certificates") through the Internet and via telephone to retail and corporate
customers. The Gift Certificate Counter Top Unit at either the mall office or
customer service center will only dispense ("Mall Gift Certificates"). The Mall
Gift Certificates are redeemable at the retail establishments located with each
of the retail properties identified in Addendum A.I attached hereto
(individually, a "Property" and, collectively, the "Properties"). The number of
Kiosks and Counter Top Units that will be installed at each Property is
indicated in Addendum A.I attached hereto.
b. Utility Access and Service. PDC hereby grants NBO or its agents
during the Agreement Term (as that term is defined in Section 3(a) below) the
right to access all necessary utilities and facilities at each Property to
install, service, maintain and operate each Kiosk, including, but not limited
to, telephone and electrical service and all related wiring and all necessary
systems related thereto. PDC will be responsible to provide each Kiosk location
noted in Addendum A.1 all necessary electrical and telephone services as
outlined in Addendum A.III, Power and Phone Installation Specifications. If PDC
elects to move the Gift Certificate Kiosk at any time during the term of this
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Neighborhood Box Office, Inc
agreement, PDC must provide NBO with a 30-day notice prior to relocation. PDC
also agrees that the location selected be mutually acceptable to both parties
and that the new locations agreed to will have necessary electrical services and
frame relay services provided at PDC's cost as outlined in Addendum A. IV, Power
and Phone Installation Specifications.
c. Advertising. PDC hereby agrees to advertise for Mall Gift
Certificates at each Property and assist NBO in the advertising and promotion of
the Mall Gift Certificates and the Network to the tenants, prospective tenants
and retail and corporate customers of each Property. PDC grants NBO the right to
promote and sell on screen corporate advertising sponsorships, without audio, to
local, regional and national companies who do not currently compete or will not
compete with PDC or the said shopping center in any way. NBO would allow PDC to
approve all sponsors and advertising prior to activation on the Kiosk screen.
NBO will assume all responsibility to solicit corporate sponsors but request any
and all referrals from companies that approach PDC about such advertising.
d. Maintenance. PDC will provide and make available to NBO, at no cost
to NBO, at least one (1) PDC employee who shall be responsible for (i)
periodically monitoring the inventory of blank gift certificate stock and event
ticket stock in each Kiosk located at the particular Property, (ii) restocking
the blank gift certificate stock and event ticket stock as needed and (II)
notifying NBO or its designated agent of any malfunction with or damage to any
Kiosk. In addition, such person shall also be responsible for assisting NBO in
performing periodic maintenance and diagnostic procedures on each Kiosk to
determine if and when any periodic or preventative maintenance is needed or if
an NBO designated service organization should be called. PDC agrees to supply
and make available at each Property properly trained personnel to assist users
of the Network in purchasing Mall Gift Certificates.
e. Financial Responsibility. PDC accepts full financial responsibility
for the collection of cash, check and credit card funds associated with the
sales of Gift Certificates on the NBO Counter Top Units and cash only at the
Kiosk should a cash acceptor be installed. PDC will provide all associated
equipment, accounts, and personnel necessary to perform the collection and
processing of all cash, check and credit card funds. At the conclusion of each
business day, PDC will reconcile sales and assure that there are sufficient
dollars deposited in a NBO merchant bank account from which NBO can withdraw
daily sales funds. PDC will have the responsibility to insure that each mall
account has balanced deposits in order to insure that necessary corresponding
funds are available at the time gift certificates are processed. In the event of
a shortage, NBO will provide immediate notification to PDC's Director of
Enclosed Malls. All personnel issues associated with potential theft will be
handled by PDC designee(s). NBO will notify PDC of all bad checks and allow PDC
to handle all collections of these checks.
f. Credit Card Fees. PDC agrees to pay for all credit card fees
associated with gift certificate sales from the Counter Top Unit, Kiosk,
Corporate or Internet. NBO agrees to bill back to PDC credit card fees at the
same rate which NBO is billed by the credit card companies. PDC agrees to
provide reimbursement to NBO net 15 days after receiving monthly billing
statement for credit card fees and charge backs, which will include credit card
fraud at a level that is acceptable by PDC. In the event the charge backs on the
kiosk exceed PDC's accepted level, NBO is willing to accept cash only at the
Kiosks. Should these rates change, NBO will provide a new rate structure to PDC.
The following is a list of credit cards NBO currently accepts and NBO's current
rate:
Visa/Master Card 2.25%
American Express 3.25%
Discover 3.25%
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Neighborhood Box Office, Inc
g. Internet. PDC agrees to allow NBO the exclusive right to sell mall
gift certificates through the Internet from all existing and future mall web
sites including JP Realty, Inc's. corporate web site. PDC will be responsible
for PDC's development costs, which allow NBO's Senior Programmers to create a
hyperlink. NBO will pay for NBO's costs to access PDC web sites once PDC has
completed the programming that allows the hyperlink. A fee will be assessed for
customers purchasing through the Internet. This fee will be agreed upon by both
parties prior to its implementation.
2. OBLIGATIONS OF NBO.
a. Kiosk. Neither the Network nor any of the Kiosks or any of the
communications or linkage connections will be owned by PDC, but rather will be
owned exclusively by NBO or a third party related entity owned or controlled by
NBO. NBO is and shall be the sole owner of the tradename "Neighborhood Box
Office, Inc." and all other tradenames, trademarks and copyrights now used in or
in the future used in connection with any Kiosk or the Network
b. Competing Installations. PDC understands and agrees that NBO has the
right to enter into agreements the same as, or similar to this Agreement with
other companies who may own or manage competing retail establishments or malls
in the geographic vicinity of the Properties, and to install its kiosks in such
establishments or malls and offer gift certificates thereat.
c. Advertising. NBO has the right to engage in an on-going program of
advertising and promoting the Network and the Kiosks, including any kiosks that
may be installed at competing retail establishments or malls located in the
geographic vicinity of the Properties. In the event NBO creates advertising that
contains the name of the mall or PDC, NBO will provide all advertising materials
to PDC for approval.
d. Maintenance. NBO will be responsible to provide maintenance and
support which includes all warranty work on all hardware and software associated
with the Kiosks and Counter Top Unit at no cost to PDC during the term of this
agreement.
e. Convenience Fees. In the event convenience fees are charged for gift
certificates ("Mall Gift Certificates") either at the Kiosks, Counter Top Units,
via the Internet or on corporate orders these charges will be mutually agreed
upon by both parties and outlined in Addendum A, Paragraph II prior to
implementation. Event Ticketing Fees will be determined on an
event-by-event-basis.
f. Gift Certificate Redemption. The gift certificates to be dispensed
through the Kiosks will be in the form of an executable bank check that can be
redeemed for merchandise or services at any retail establishment in the
particular Property, or Properties as designated by PDC, and deposited into the
account of such retail establishment. NBO will control the bank account from
which the Mall Gift Certificates will be processed and retain all interest
earned on said bank account. All Mall Gift Certificates will be sold through the
Kiosks using a credit card or a standard debit card. At the counter top unit,
PDC will establish policy on what will be accepted (cash, checks, credit card or
standard debit card). NBO will guarantee the redemption funds to the retail
establishment as long as said establishment follows the NBO Mall Gift
Certificate redemption procedures. Such redemption procedures shall be mutually
agreed upon and provided in writing to participating retail establishments in
the Properties by PDC. All funds deposited into this account may be monitored at
any time by PDC through Automated Balance Reporting via modem for a monthly fee
of $75.00 or with no monthly fee through a 1-800 number directly through the
bank.
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Neighborhood Box Office, Inc
g. Unredeemed Gift Certificates. NBO will ensure compliance to all
applicable restrictions, if any, under the applicable state abandoned property
or escheat laws. Any balance of unredeemed Gift Certificates remaining after
compliance to all applicable laws shall remain property of NBO.
h. Insurance. NBO shall be responsible for providing insurance on the
Kiosks in an amount deemed appropriate by PDC. All insurance requirements will
name PDC and the corresponding mall as additional insured.
i. Reporting and Audit. Within twenty (20) days of the end of each
month, NBO will provide PDC with a monthly sales report, by Property. PDC
reserves the right to audit NBO's books and records which coincide with the PDC
Gift Certificate business only, at NBO's principal place of business and during
normal business hours, by informing NBO in writing of its desire to do so five
(5) days in advance.
3. AGREEMENT TERM.
a. Term. The term of this Agreement shall commence on the Effective Date
and shall continue for a period of [**] years from the Effective Date,
unless earlier terminated in accordance with the provisions of Section 5 below.
4. ASSIGNMENT.
a. Assignment by PDC. PDC may delegate, assign, transfer or encumber its
rights, duties, interests or obligations to any subsidiary or affiliate or to
any company who acquires a substantial amount or all of PDC's assets in a
particular property under this Agreement without NBO's prior written consent.
However, no transfer or assignment of this agreement will constitute a
termination of this agreement.
b. Assignment by NBO. NBO may delegate, assign, transfer or encumber its
rights, duties, interests or obligations under this Agreement in its sole
discretion and without PDC's consent.
5. TERMINATION.
a. Bankruptcy. The adjudication of either Party as being bankrupt,
insolvent or unable to pay its debts and obligations as they become due or if
either Party places any of its property or assets in liquidation for the purpose
of meeting claims of its creditors or a trustee or receiver is appointed shall
result in the termination of this Agreement.
b. Failure to Perform. The failure of either Party to perform or fulfill
at the time and in the manner herein provided any duty, obligation or condition
required to be performed or fulfilled by that Party hereunder; provided,
however, that: (a) the non-performing Party shall have been given thirty (30)
days' prior written notice specifying the non-performance or non-fulfillment
that it is charged with having committed and shall have failed to cure such
non-performance or non-fulfillment within such thirty (30) day period; (b) the
non-performance or non-fulfillment of such duty, obligation or condition has a
material adverse effect on this Agreement and/or on the relationship created
hereby between the Parties; and (c) the performing Party elects in writing to
declare this Agreement terminated as a result of such non-performance or
non-fulfillment.
c. Mutual Agreement. The mutual written agreement of the Parties to
terminate this
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[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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Neighborhood Box Office, Inc
6. MISCELLANEOUS PROVISIONS.
a. Applicable Law. All matters pertaining to the validity, performance,
construction or effect of this Agreement, and the legal relations between the
Parties, shall be governed by and construed in accordance with the laws of the
State of
Utah applicable to agreements made and wholly to be performed in said
State without regard to principles of conflicts of law. Any disputes arising
under this Agreement or the transactions contemplated hereunder shall be
resolved in the state and federal courts residing in Salt Lake City, Salt Lake
County,
Utah.
b. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the Parties with respect to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings related to the
subject matter hereof. No representation, promise, inducement or statement of
intention has been made by either of the Parties that is not embodied in this
Agreement, and neither of the Parties shall be bound by or be liable for any
alleged representation, promise, inducement or statement of intention that is
not specifically set forth in or referred to herein.
c. Notice. Any notice or other communication required or permitted to be
given hereunder shall be effective upon receipt by the intended recipient at the
address indicated in the introductory paragraph above (or such other address as
either Party shall provide to the other Party by on of the means set forth
hereinbelow). Receipt shall be deemed to have occurred upon the earlier of (a)
the date of actual receipt by the intended Party by registered mail, (b) five
(5) days after such notice is deposited in the United States mail, certified or
registered, postage prepaid and properly addressed, (c) the date such notice is
sent to the other Party by telecopy (with receipt confirmation), provided such
notice is promptly provided to the other Party by United States mail, certified
or registered, postage prepaid and properly addressed, or (d) one (1) day after
such notice is deposited with a recognized overnight courier service.
d. Force Majeure. Neither Party shall be responsible to the other Party
for non-performance or delay in performance of any of the terms, duties,
obligations or conditions contained in this Agreement due to acts of God, acts
of governments, wars, riots, strikes, accidents or other causes beyond the
control of the Parties.
e. Severability. In the event that any provision hereof shall be deemed
in violation of any applicable law, rule or regulation, or held to be invalid by
any court in which this Agreement shall be interpreted, the violation or
invalidity of any particular provision hereof shall not be deemed to affect any
other provision hereof, but this Agreement shall be thereafter interpreted as
though the particular provision so held to be in violation or invalid were not
contained herein.
f. Miscellaneous. The above Recitals and all Attachments attached hereto
are deemed to be incorporated herein by reference. Notwithstanding any rule or
maxim of construction to the contrary, any ambiguity or uncertainty in this
Agreement shall not be construed against either Party based upon authorship of
any of the provisions hereof.
IN WITNESS WHEREOF, the Parties have entered into this Agreement
effective as of the Effective Date.
PDC: NBO:
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Neighborhood Box Office, Inc
Price Development Company, LC. Neighborhood Box Office, Inc.,
By: By:
---------------------------- ------------------------------
Signature Signature
---------------------------- ------------------------------
Name (Printed) Name (Printed)
---------------------------- ------------------------------
Title Title
---------------------------- ------------------------------
Date Date
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Neighborhood Box Office, Inc
ADDENDUM A
I. It has been agreed upon that NBO will install one Kiosk per mall only
where there is a Customer Service Center currently installed with the
exception of ▇▇▇▇▇▇▇▇▇ Mall in Casper, Wyoming, where PDC is in the
process of installing a new Customer Service Center. All malls without
Customer Service Centers will receive an NBO Counter Top Unit 100. The
following list outlines each mall and the hardware that corresponds.
Installation dates will be mutually agreed upon by both parties once
this agreement is fully agreed upon and executed.
Property Kiosks Counter Top Unit Installation Date
-------- ------ ---------------- -----------------
Cottonwood Mall 1 1 As Noted Above
Boise Town Center 1 1 "
Provo Towne Center 1 1 "
Spokane Valley Mall 1 1 "
North Town Mall 1 1 "
Pine Ridge Mall 1 1 "
Grand Teton Mall 1 1 "
Visalia Mall 1 1 "
▇▇▇▇▇▇▇▇▇ Mall 1 1 "
Cache Valley Mall 1 "
White Mountain Mall 1 "
Red Cliffs Mall 1 "
North Plains Mall 1 "
Animas Valley Mall 1 "
Salem Center Mall 1 "
Three Rivers Mall 1 "
Silver Lake Mall 1 "
Sierra Vista Mall 1 "
Pricing
-------
Customer Service Unit $[**] per machine (installed at
no cost to PDC)
Touch Screen Interactive Kiosk $[**] per kiosk (installed at
no cost to PDC)
Extra Counter Top Units for Holiday
usage $[**] per month per machine,
including all shipping costs
Gift Certificate Printing/Processing $[**] per document (provided at not
cost to PDC)
II. CONVENIENCE FEE. PDC retains the right to specify Mall Gift Certificate
amounts, these amounts need to be communicated to NBO by September 10, 1999
ticketing will be sold only upon prior
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[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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Neighborhood Box Office, Inc
approval of PDC and fees will be determined on an event-by-event basis. PDC will
participate in revenue sharing on all Event Tickets sold through the Kiosks at a
rate of [**] of the total convenience fees paid to NBO. Any convenience fees
assessed to the consumer for mall gift certificates, must be mutually agreed
upon by both parties before commencing the fee, this will include Internet,
corporate and retail.
III. POWER AND TELEPHONE SPECIFICATIONS. The requirement for installation of
power at each Kiosk location is a dedicated 110 Volt, 20-amp circuit, either
wall mount, or floor mount. The wall mount needs to be within 3 feet of the
center of the Kiosk location and the floor mount needs to be directly under the
Kiosk location, with a 4-inch variance allowed in any direction from the center
of the Kiosk location. The telephone requirement is a Frame Relay Circuit
needing Cat 5 phone cable with a 4-wire RJ45 connector in a Surface Block. The
connector and housing can be either wall mount or on a pigtail. The wall mount
should be within 2 feet one of the Kiosk locations and the pigtail should be
between 2 and 3 feet long and not located under the kiosk installation location.
The installed telephone must terminate at the building demark and be properly
identified for connection to the network. NBO will arrange and schedule the
outside line installation to the demark. The Counter Top Unit will require
installation of a Cat 5 cable between the Kiosk location and the Counter Top
location that is less than three hundred (300) feet. The requirement for
installation of power at each Counter Top Unit location is a dedicated 110 Volt,
15-amp circuit, either wall mount or floor mount, but within a reasonable
distance from the installation location. The Counter Top Unit will share the
Frame Relay circuit to the Kiosk.
Exhibit I will outline costs by mall to install frame relay based on a quote
from Windstar Broadband Services, who is an NBO service provider. Should PDC
elect to utilize Windstar Broadband Services to install frame relay, NBO will
contract with Windstar Broadband Services and charge PDC for the cost of
installation as determined on Exhibit I.
Like all utilities, frame relay services and pricing are subject to change. NBO
will provide a 30-day written notice to PDC should prices change. PDC would then
be responsible to pay new rates according to increases or decreases in pricing.
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[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
