Exhibit 10.4(b)
FIRST AMENDMENT TO MEDIA NETWORK SERVICES AGREEMENT
This First Amendment tp Media Network Services Agreement (the
"Amendment") is made and entered as of this 28th a day of April, 1998, by and
between The Southland Corporation ("Southland") and Mentus Media Corp. f/k/a The
Mentus Group, Inc. ("Mentus").
WHEREAS, Southland and Mentus entered into that certain Media Network
Services Agreement on or about April 18., 1995 (the "Media Agreement"); and
WHEREAS, Southland and Mentus desire to amend the Media Agreement 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 9 -- TERM.
Section 9.01 is amended so that the Term of the Media Agreement shall
be extended, unless earlier terminated as provided under the Media Agreement
through January 1, 2004. The parties acknowledge with Sections 9.02, 9.03, 9,04
and 9.05 remain in full force and effect, and that the words "or enter into a
new agreement" are added to the second sentence of Section 9.02
2. Section 2 -- HARDWARE INSTALLATION.
The following shall be added after the last sentence of section 2.02 of
the Media Agreement:
"If the parties do not agree to a mutually acceptable location
for installation, Mentus shall not be obligated to install the
Hardware in such Store, In the event the Hardware is not
installed by Mentus in such Store, the minimum number of Store
Hardware installations referenced in section 2. 03 (a), (b)
and (c) herein shall be reduced by one Store for each Store in
which the Hardware is not installed."
The Hardware Installation Rollout Schedule referenced in section 2.03
of the Media Agreement ("Installation Schedule") is amended as follows:
"(a) Pursuant to the revised Installation Schedule, Mentus shall
install the Hardware in an additional * Stores (from January 1, 1998) to be
completed no later than December 31, 1998. Mentus shall complete Hardware
installation in at least * total Stores no later than December 31, 1999. The
Installation Schedule is attached herein as Exhibit C.
* Denotes this information has been filed seperately with the Securites and
Exchange Commission for Confidential Treatment.
(b) If, for whatever reason the Hardware has not been installed in an
additional * Stores by December 31, 1998. Mentus shall pay Southland liquidated
damages (and not as a penalty) of * within thirty (30) days after the end of
calendar year 1998. Similarly, Mentus shall pay Southland liquidated damages
(and not as a penalty) of * within thirty (30) days after the end of calendar
year 1999, if for whatever reason, the Hardware has not been installed in at
least * total Stores by December 31, 1999. Except as provided in (c) below, the
liquidated damages shall represent Southland's sole remedy against Mentus in the
event the Installation Schedule is not met.
(c) If, for whatever reason, the Hardware has not been installed in a
at least * total Stores by June 30, 2000, Southland may immediately terminate
the Media Agreement upon thirty (30) days written notice to Mentus."
(d) The dates set forth in subparagraph (a), (b) and (c) above shall be
extended by one (1) day for each day of any delay by Mentus in meeting the
Hardware Installation Schedule that is caused solely by the actions of
Southland, its agents or participating franchisees. Prior to the Installation
Schedule being extended, Mentus shall provide Southland with written notice of
any claimed delay caused solely by Southland."
3. Section 13 -- MENTUS EXCLUSIVITY.
Section 13.01 of the Media Agreement is amended to read as follows:
"During the Term of this Agreement, Mentus will be the exclusive
provider of video-based information, entertainment and advertising to the
Stores. Notwithstanding the above, Mentus agrees that the Mentus exclusivity
provided herein shall be waived and shall not apply to video based information,
entertainment and advertising that may be provided through the use of automatic
teller machines ("ATM's") and automated financial services centers ("FSC's")
that are or may be located in the Stores. This waiver by Mentus of exclusivity
is limited to@ (1) information, entertainment or advertising conducted on the
"transactional screens" during a customer transaction using the ATM and FSC, and
(11) in-Store ATM or FSC placement not being changed by Southland with the
exception of placement changes made in the ordinary course of Southland's
business "Transactional screens" is defined as those screens shown on the ATM
oi- FSC monitor that appear only during a customer transaction and that are
intended to be viewed only by a single person conducting a transaction on the
ATM or FSC and not by Store customers generally or by others not conducting a
transaction on the ATM or- FSC
Except as provided by this Amendment, all of the terms and conditions
in the Media Agreement shall remain in full force and effect.
The Amendment, along with the Media Agreement 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
* Denotes this information has been filed seperately with the Securites and
Exchange Commission for Confidential Treatment.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first set out above,
THE SOUTHLAND CORPORATION
Attest: By:
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Assistant Secretary Its:
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MENTUS MEDIA CORPORATION
By:
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Its:
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* Denotes this information has been filed seperately with the Securites and
Exchange Commission for Confidential Treatment.
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EXHIBIT C
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*
Initial Hardware Installation Schedule
* Denotes the information has been filed separately with the Securities and
Exchange Commission for Confidential Treatment