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EXHIBIT 10.48
CABLE TELEVISION AND TELEPHONE SERVICE AGREEMENT
THIS CABLE TELEVISION AND TELEPHONE SERVICE AGREEMENT (this
"Agreement") is entered into this 31st day of March, 2000, by and between PNV
Inc., a Delaware corporation ("PNV"), with its headquarters at 11711 NW 39th
Street, Coral Springs, Florida 33065 and Williams TravelCenters, Inc., a
Delaware corporation, ("Operator"), with its headquarters at 1101 Kermit Drive,
Suite 800, Nashville, TN 37217.
WHEREAS, Operator currently owns or operates twenty-eight (28)
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 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 certain of 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. The Parties hereby agree that PNV shall initially
install the System and the parties shall operate the System and provide the
Services at the Truckstop(s) on Schedule 1 pursuant to a build out schedule to
be mutually agreed upon by the Parties.
2. Installation of Equipment.
(a) PNV shall, at its sole cost and expense, and in the
manner herein provided, install and continually maintain at each Truckstop at
which the Services are to be provided all equipment necessary to provide the
Services including the following:
(i) equipment necessary for the provision and
distribution of the Services.
(ii) outlet ports to parking spaces to provide
users with access to the Services.
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(iii) equipment to (a) monitor the use of the
Services and (b) account for all receipts
for billing and revenue sharing purposes.
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 reserves the
right to make additions to and deletions from the PNV Equipment to be installed
at each Truckstop. PNV shall provide the Services to at least 75% of the truck
parking spaces located at each Truckstop at which it installs the System. The
Parties shall mutually determine the precise number and location of the truck
parking spaces at which the Services shall be provided, 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 the Parties 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 of the Services
(hereinafter collectively referred to as the "Equipment Area"). PNV shall be
entitled to have continued access to the Equipment Area and all parking areas
for purposes of installing, repairing and monitoring the PNV Equipment, the
System and the Services.
(c) Prior to commencement of construction at any
Truckstop, PNV shall obtain Operator's approval of the methods and materials to
be used by PNV with respect to the installation of the System. PNV will repair
any 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.
(d) 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; and (ii) complete the
installation of the System at each Truckstop within forty-five (45) days of
commencement of the installation at each 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, operation and
maintenance of the System and providing the Services. Operator shall assist PNV
(at PNV's expense) in obtaining any such licenses, permits, or approvals upon
PNV's reasonable request.
(f) The Parties agree that while PNV shall use reasonable
efforts to complete the installation of the System at the Truckstops pursuant to
the terms of this Agreement, PNV's obligations to install the System at any of
the Truckstops is subject to: (i) Operator having ownership or control over such
Truckstop at the time PNV commences installation of the System; (ii)
confirmation that the Truckstop has, in PNV's sole discretion, a sufficient
number of parking stalls to warrant installation; (iii) Operator authorizing PNV
to use its standard
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construction methods and materials with respect to the installation of the
System at such Truckstop; (iv) completion of satisfactory engineering and
environmental surveys at such Truckstop; (v) confirmation that no part of the
System crosses a public right of way adjacent to such Truckstop; (vi) receipt
from Operator of all requested maps, blue prints and other relevant information
relating to such Truckstop on a timely basis; and (vii) PNV not being able to
complete any such installation because of any of the following: floods, civil
unrest, acts of God; war; governmental interference or embargoes; labor strikes;
failure of others to supply fuel, power, materials or supplies; transportation
delays by third parties; or any other cause (whether or not similar to those
described in this Section 2(f)) beyond the control of PNV.
(g) After completion of the installation of the System at
a Truckstop, PNV shall provide Operator with 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 material confidential 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 have the right to: (i) remove, at its sole cost and expense,
any or all of the PNV Equipment from each Truckstop; or (ii) if agreeable to
Operator, 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.
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 may 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.
(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.
(iv) PNV shall also provide telephone service to
certain parking slots at each Truckstop. The
current telephone services offered by PNV
are set forth on Schedule 4. PNV shall, with
Operator's prior consent, have the right to
determine and make changes to the specific
types of telecommunication services provided
to a particular Truckstop from time to time.
If the Parties mutually agree to permit PNV
to provide phone service to areas of the
Truckstops, other than the parking lot, the
Parties 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) Initially, upon installation of the System at any
Truckstop, PNV shall train the Operator and its designated employees with
respect to the maintenance and operation of the System and the promotion of the
Services. PNV shall provide follow up training for Operator's personnel during
working hours with respect to the promotion of the Services, the operation of
the System, and the maintenance of the PNV Equipment as may be reasonably
requested by Operator from time to time. PNV shall, with the prior consent of
Operator, be entitled to have its own employees or agents engage in the
promotion of the Services at any Truckstop, provided that PNV's employees and
agents shall not interfere with the operation of said Truckstop.
(b) 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 Truckstops. The Parties 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. The
Parties shall share the cost of implementing and funding any such mutually
agreed upon incentive programs.
(c) Operator may develop and supply to PNV, at no cost to
PNV, certain advertising and promotional materials relating to the Operator's
truckstop system to be run on a single dedicated channel to be made available to
Operator at no cost. Additional channels may be provided for Operator's use at
mutually agreed upon charges. PNV may also develop and supply to Operator, at no
cost to Operator, certain advertising and promotional materials relating to the
System and the sale of the Services. Subject to each Party's approval and
consent, Operator and PNV shall make reasonable efforts to utilize and display
such materials at each Truckstop in order to promote the sale and promotion of
the Services.
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6. Maintenance of the PNV Equipment and the System.
(a) PNV shall 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) The day to day maintenance of the System shall be
handled as follows:
(i) Operator's 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 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.
(ii) If a mechanical problem arises other than
through a failed connecting cable or
accessory, 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 repairs
will be billed directly to PNV.
7. Term. Subject to Section 16, the term of this Agreement, as it
applies to each Truckstop at which the System is installed, shall be for a
period of ten (10) years commencing on the Truckstop Service Date and
terminating on the tenth anniversary of the Truckstop Service Date (the "Term").
Subject to Section 16 and Operators written consent, 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 (as defined on Schedule 5) set forth in Section A.1
of Schedule 5. Upon the expiration of the Automatic Renewal Period, PNV and
Operator may mutually agree to additional five-year renewal terms.
(a) Notwithstanding the terms and conditions of this
Agreement, PNV and Operator hereby agree that, if at any time after the fifth
anniversary of this Agreement, Operator wishes to terminate this Agreement and
to obtain services similar to the Services ("New Services") from a provider
other than PNV, Operator shall provide PNV with written notice of the
specifications for the New Services and the proposed provider of the New
Services, if any, (the "New Service Notice") and PNV shall have the right of
first refusal to provide the New Services to Operator based on the
specifications set forth in the New Service Notice (the "Right of First
Refusal"). In the event that PNV desires to exercise its Right of First Refusal,
PNV shall provide written notice thereof ("First Refusal Notice") to Operator
within thirty (30) days of receipt of the New Service Notice. For a period of
thirty (30) days after the date of the First Refusal Notice, Operator and PNV
will negotiate in good faith the terms upon which PNV will provide the New
Services to Operator. If after such good faith negotiations, PNV and Operator
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are unable to agree upon the terms and conditions upon which PNV will provide
Operator with the New Services or if PNV is unable to provide the New Services
for any reason, then Operator shall pay PNV liquidated damages in accordance
with Section 7(b) hereof and terminate this Agreement.
(b) If at any time after the fifth anniversary of this
Agreement, (i) Operator terminates such Agreement after following the Right of
First Refusal procedure set forth in Section 7(a) hereof or (if Operator does
not intend to obtain New Services) for any other reason, or (ii) PNV terminates
such Agreement as a result of Operator's material breach of such Agreement, then
Operator shall pay PNV liquidated damages in the following amounts: (1) $200,000
for each applicable truckstop that contains up to 100 stalls and $2,000 for each
additional stall over 100 if such termination occurs on or after the fifth
anniversary of this Agreement and before the eighth anniversary of this
Agreement; (2) $150,000 for each applicable truckstop that contains up to 100
stalls and $1,500 for each additional stall over 100 if such termination occurs
on or after the eighth anniversary of this Agreement and before the ninth
anniversary of this Agreement; (3) $100,000 for each applicable truckstop that
contains up to 100 stalls and $1,000 for each additional stall over 100 if such
termination occurs during the first quarter of the tenth year of this Agreement;
(4) $75,000 for each applicable truckstop that contains up to 100 stalls and
$750 for each additional stall over 100 if such termination occurs during the
second quarter of the tenth year of this Agreement; (5) $50,000 for each
applicable truckstop that contains up to 100 stalls and $500 for each additional
stall over 100 if such termination occurs during the third quarter of the tenth
year of this Agreement; and (6) $25,000 for each applicable truckstop that
contains up to 100 stalls and $250 for each additional stall over 100 if such
termination occurs during the fourth quarter of the tenth year of this
Agreement. In the event that Operator terminates this Agreement as a result of
PNV's material breach of such Agreement, Operator shall not be required to pay
PNV liquidated damages as specified in this Section 7(b) hereof.
8. Fees.
(a) All revenues and profits derived from the sale or
provision of the Services at each Truckstop shall, during the Term (and any
renewal terms) be allocated between PNV and Operator as set forth as Schedule 5
attached hereto.
(b) The books and records of the Operator and PNV
pertinent to the Gross Receipts (as defined on Schedule 5), Net Profits (as
defined on Schedule 5), Directly Related Expenses (as defined on Schedule 5),
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. The Parties acknowledge and agree that if PNV provides additional
services over the System in the future, the revenue and profit allocations for
such additional services may be agreed to by the Parties in the form of a letter
agreement which shall constitute an amendment to this Agreement.
9. Exclusivity.
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(a) PNV shall, for the Term of this Agreement (and any
renewal terms) unless earlier terminated pursuant to Section 7, have the
exclusive right to install the System and provide the Services to each Truckstop
listed on Schedule 1.
(b) PNV shall, during the Term of this Agreement (and any
renewal term) unless earlier terminated pursuant to Section 7, have: (i) the
exclusive right to sell to Operator at competitive prices coaxial and phone
cables for use with the Services provided by PNV; and (ii) the nonexclusive
right to sell to Operator television, telephone and cable accessories and
adapters 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.
10. Rights Granted to PNV. Operator hereby grants and conveys to
PNV, for the Term of this Agreement (and any renewal term), access to the
premises of each Truckstop at which the System is installed for purposes of
maintaining, repairing, replacing and operating the System and providing the
Services.
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.
(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) In the event Operator's or PNV's right to use the
System, the Services or the PNV Equipment is challenged, PNV will defend and
indemnify Operator, its officers, directors, shareholders, employees and agents
from any and all expenses (including reasonable attorneys' fees) and damages (of
whatever kind or nature) relating to the challenge of such use.
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Further, in the event Operator is not able to use the System or the Services
during the term of this Agreement due to any such challenge, Operator may,
subject to the terms of Section 16, terminate this Agreement and receive any
amounts due to Operator as of the date of termination.
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 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.
(b) The execution, delivery and performance of this
Agreement by Operator has been duly authorized by all necessary 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 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 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 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.
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13. Risk of Loss and Insurance; Indemnification.
(a) PNV shall bear the risk of loss and hereby
indemnifies and holds harmless Operator for: (i) damage to or destruction of the
PNV Equipment and the System installed at each Truckstop, except as provided in
Section 13(b); and (ii) injury to persons or damage to property arising from the
installation of the PNV Equipment and the System (except to the extent such
damage is occasioned by the gross negligence or willful misconduct of Operator,
its employees, contractors or agents).
(b) Operator shall be responsible for the maintenance,
repair or replacement of the PNV Equipment resulting from damage or destruction
caused by the gross 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 at which the Services are provided against
any personal injury or other 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 insured 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, 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 (through a change of
control, sale of assets or otherwise) provided that the acquiror of such
interest or assets shall assume the Operator's rights and obligations hereunder
and shall be bound by the terms of this Agreement, in which case, PNV shall
recognize the acquiror of such Truckstop as its Operator for purposes of this
Agreement.
(b) PNV may pledge 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 said acquiror
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, without limiting any other remedy which may
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be available, 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. Accordingly, Operator agrees to maintain and cause
each of its employees and agents to maintain and keep strictly confidential all
confidential information that it obtains or receives in conjunction with the
System, the PNV Equipment and the Services. 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 mark of PNV and to the
extent required by PNV, Operator shall execute a no cost limited license
agreement for the use of such service mark.
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: Bill Buzbee
Vice President, Business Development
PNV Inc.
11711 NW 39th Street
Coral Springs, FL 33065
Fax Number: (954) 745-7899
With a copy to: James M. O'Connell, Esq.
Kilpatrick Stockton, LLP
3737 Glenwood Avenue
Suite 400
Raleigh, NC 27612
Fax Number: (919) 420-1800
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To Operator: Williams TravelCenter, Inc.
1101 Kermit Drive, Suite 800
Nashville, TN 37217
Fax Number: (615) 346-3173
ATTN: Roger Booker, General Manager
Marketing Services
All notices shall be deemed delivered only upon actual receipt. 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 18(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 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 shall be governed by
the laws of the State of Florida.
(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.
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(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 (as determined under Section 15).
(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) Arbitration. Any controversy, dispute or question
arising out of, or in connection with, or in relation to this Agreement or the
interpretation, performance or non-performance or any breach thereof shall be
determined by arbitration conducted in Ft. Lauderdale, Florida in accordance
with the then existing rules of the American Arbitration Association. PNV and
Operator shall each select one arbitrator, and the two arbitrators shall select
a third with the same qualifications. Any decision rendered shall be binding
upon the Parties, however, the arbitrators shall have no authority to grant any
relief that is inconsistent with this Agreement. The expense of arbitration
shall be borne by the non-prevailing Party.
(m) Favored Nations. PNV and Operator agree that the
profit or revenue allocations set forth in Schedule 5 attached hereto shall be
amended to reflect any increased profit or revenue allocations provided to any
third party truckstop operator with whom PNV enters into a similar contract
provided that if such contract contains materially different terms and
provisions than those contained herein (such as, for example, the term of such
contract exceeds the Term of this Agreement or the Operator pays for
installation of some or all of the System), Operator must agree to a comparable
terms and provisions as a condition to its right to receive the increased profit
or revenue allocations.
(n) 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.
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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.
Williams TravelCenter, Inc., a PNV INC., a
Delaware corporation Delaware corporation
By: /s/ James C. Alligood By: /s/ Bill Buzbee
James C. Alligood, President Bill Buzbee, Vice President-
Business Development
-13-
<PAGE> 14
SCHEDULE 1
LIST OF TRUCKSTOPS OWNED OR OPERATED
BY OPERATOR
--------------------------------------------------------------------------------
STORE # CITY STATE ADDRESS STATUS
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3,360 Flowood MS I-20, Exit 47 Open
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3,301 Dickson TN I-40, Exit 172 Open
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3,361 Florence SC I-95, Exit 164 Open
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3,329 Priceville AL I-65, Exit 334 @ Hwy 67 Open
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3,374 Pendleton KY I-71, Exit 28 Open
--------------------------------------------------------------------------------
3,371 Commerce GA I-85, Exit 52 Opening Dec '99
--------------------------------------------------------------------------------
3,373 Ocala FL I-75, Exit 71 Opening Dec '99
--------------------------------------------------------------------------------
3,363 Oak Grove KY I-24, Exit 86 Opening Nov. '99
--------------------------------------------------------------------------------
3,368 Higginsville MO I-70, Exit 49 Opening Jan 2000
--------------------------------------------------------------------------------
3,369 Biloxi MS I-10, Exit 44 Opening Dec '99
--------------------------------------------------------------------------------
3,300 Cordele GA I-75, Exit 33 Open
--------------------------------------------------------------------------------
3,366 Daleville IN I-69 @ Hwy 67, Exit 34 Open
--------------------------------------------------------------------------------
3,372 Gaffney SC I-85, Exit 90 Open
--------------------------------------------------------------------------------
3,375 Hebron IN I-65, Exit 240 Opening Dec '99
--------------------------------------------------------------------------------
3,367 Evansville IN I-64, Exit 25 Opening Oct '99
--------------------------------------------------------------------------------
7,332 Russellville AR I-40, Exit 84 Open
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3,359 Kingsland GA I-95, Exit 2 Open
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3,077 West Memphis AR (W) I-40, Exit 280 (S)I-55, Open
Exit 4
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3,145 Rising Fawn GA I-59, Exit 1 Open
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3,330 Lebanon TN I-40/Hwy 231, Exit 238 Open
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3,380 Waco TX I-35, Exit 328 Opening Dec '99
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3,146 Memphis TN 4949 Lamar Ave Open
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3,238 Williamsburg KY 481 West, Hwy 92 Open
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3,296 Franklin KY Hwy 100 & I65, Exit #6 Open
--------------------------------------------------------------------------------
3,362 West Monroe LA 300 Well Road Open
--------------------------------------------------------------------------------
-14-
<PAGE> 15
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
Cable TV "billing" computer and software
Membership card dispenser
Telephone & Cable TV accessories for resale
Voice-mail service
-15-
<PAGE> 16
SCHEDULE 3
LIST OF CURRENT PROGRAMMING SCHEDULE
Current Programming Schedule:
<TABLE>
<CAPTION>
======================================
Channel # Program
--------------------------------------
<S> <C>
02 PLAYBOY
04 HBO
05 HBO2
06 HBO3
07 DISCOVERY
08 ESPN 2
09 FOX
10 DEN
11 CNN HN
12 WEATHER
13 ESPN
14 NBC
15 ABC
16 A&E
17 CBS
18 TNN
19 TNT
20 WGN
21 PNV
</TABLE>
-16-
<PAGE> 17
SCHEDULE 4
LIST OF CURRENT TELEPHONE SERVICES
Current Telephone Services:
1+ calls
1-800 calls
Local calls
Operator services
Direct call back to stall # (automated)
Message waiting
Wake-up calls (automated)
-17-
<PAGE> 18
SCHEDULE 5
REVENUE AND PROFIT ALLOCATION
<TABLE>
<CAPTION>
DESCRIPTION OF SERVICE OR SALE OPERATOR'S PORTION
<S> <C> <C>
A. Gross Receipts Based Programs
1. Gross Receipts* from the sale of monthly and daily memberships 35% for ten (10) year Term;
and other services from the vending machine at each of 40% for five (5) year Automatic Renewal Term
Operator's Truckstop.
2. Gross Receipts* from the sale of Power Plans at each of 35% for first month of service and 10% for each
Operator's Truckstop. additional month of service under Power Plan
3. Gross Receipts* from the sale of memberships by telemarketing 10% of each months receipts will be placed in a
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.
</TABLE>
* 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 to fleets by PNV (but not third party sales agents) 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.
-18-
