EXHIBIT 10.(a)
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this 14TH day
of January, 1997 (the "Effective Date") by and between HotelView Corporation, a
Florida corporation ("HVC") and Pegasus Systems, Inc., a __________ corporation
("Pegasus").
RECITALS
A. HVC, a wholly owned subsidiary of Visual Data Corporation ("VDC"),
produces and markets the HotelView/registered trademark/ Library (the "HVC
Library") containing short, concise visual brochures ("vignettes") depicting the
specific characteristics and amenities of hotels and resorts in full-motion
visual form (collectively the "HVC Business").
B. Pegasus provides transaction processing services between travel
agents, airline reservation systems and to hotels, resorts, and hotel chains
(individually the "Property" and collectively the "Properties").
C. HVC wishes to engage Pegasus to promote the HVC Library to
Properties, pursuant to the terms and conditions set forth herein and Pegasus
wishes to be engaged by HVC to provide the services set forth herein.
D. HVC wishes to grant Pegasus an irrevocable option to purchase up to
thirty-three and one-third (33-1/3%) percent of the outstanding capital stock of
HVC, pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
and agreements contained herein, the parties mutually agree as follows:
1. RECITALS. The recitals set forth above are true, correct and are
herein incorporated by reference.
2. ENGAGEMENT. HVC hereby engages Pegasus to perform the services
pursuant to the terms and conditions set forth herein and Pegasus hereby
accepts such engagement.
3. SERVICES TO BE PROVIDED BY PEGASUS.
a. Pegasus shall make its marketing and sales staff available for
training by HVC to market and promote the HVC Library to Properties for
inclusion in the HVC Library and as contemplated by this Agreement.
b. Pegasus shall use reasonable efforts to make appointments with
Properties to market the HVC Library to Properties for inclusion in the HVC
Library and as contemplated by this Agreement.
c. Pegasus shall use reasonable efforts to market, endorse, and promote
the HVC Library to Properties; provided that the HVC Library may be sold along
or bundled with other Pegasus products including, but not limited, to web pages,
booking services, and other Internet related products and/or services.
d. Pegasus shall use reasonable efforts to obtain "Initial Contracts",
as hereinafter defined, and to obtain deposits from Propert(ies) in connection
with such Initial Contract(s) in order that HVC shall create a vignette to be
included in the HVC Library for each Property that is the subject matter of an
Initial Contract. The Initial Contract shall be substantially in the form and
based substantially upon the terms and conditions described on Exhibit A and
which pricing shall substantially be based upon the pricing schedule described
on Exhibit B hereto and incorporated herein, which terms, conditions, and
pricing shall be consistent with all terms, conditions and pricing to other
entities entering into similar agreements as this Agreement with HVC. HVC
reserves the right to modify Exhibit A or Exhibit B, in its sole discretion,
upon thirty (30) days prior written notice.
e. Pegasus shall use reasonable efforts to obtain "Renewal Contracts,"
as hereinafter defined, and to obtain deposits from Properties in connection
with such Renewal Contract for each Property that is the subject matter of an
Initial Contract obtained by Pegasus.
f. Pegasus shall provide HVC with a monthly production report itemizing
hotel bookings processed through its THISCO/HCC Systems with regard to
participating HVC hotels (a list of such HVC hotels shall be provided by HVC to
Pegasus, and which list shall be updated, as additional hotels are added to the
list of HVC hotels) that are booked by participating HVC travel agencies (a list
of such participating HVC travel agencies which shall be provided by HVC to
Pegasus and which list shall be updated, as additional travel agencies are added
to the list of participating HVC travel agencies). At the option of Pegasus, the
report may be either based on (i) net reservations based on the date or arrival
or (ii) transactions (i.e. new bookings, modifications and cancellations), based
on the date of transaction. Additionally, Pegasus shall provide HVC with a
monthly production report itemizing the volume of Internet users visiting the
TravelWeb Internet site and that have selected to view HVC hotels.
g. Pegasus agrees to list HVC as its preferred marketing provider of
hotel and attraction vignettes.
h. For purposes of this Agreement, the term
i. "Initial Contract" means a written agreement between one
Property, on the one hand, and HVC, on the other hand, that is obtained by
Pegasus and which Property shall not have previously contracted with HVC;
provided that if a written agreement includes more than one Property, that
written agreement shall constitute such number of Initial Contracts as shall be
equal to the number of Properties contained in such agreement. By way of
example, if Pegasus obtains contracts with Best Western hotels for 5,000 hotels,
but such agreements is contained in only one written contract, that written
agreement shall constitute 5,000 Initial Contracts; and
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ii. "Renewal Contract" or "Renewals" means a renewal of an
Initial Contract.
4. SERVICES TO BE PROVIDED BY HVC. HVC agrees to provide the following
services to Pegasus:
a. Upon execution of an Initial Contract, HVC shall undertake the video
taping and production of vignettes of such hotels, on a first priority basis;
b. HVC shall include the vignettes described in Section 4(a) on HVC's
file server;
c. All vignettes derived from videotaping or other HVC owned media that
has been fixed in a tangible medium of expression in connection with Properties
who contract with the Company (the "HVC Content") by HVC, shall be stored on (i)
HVC's file server and shall be accessible via hyperlink through the Internet
from the TravelWeb Internet site; or (ii) stored on HVC's file server with a
point to point high speed link to Pegasus' file server; provided that at all
times, HVC's copyright and other applicable intellectual property notices set
forth, as required by HVC, shall be visible where HVC Content is displayed
and/or viewed; provided that it shall be HVC's sole responsibility to include
all copyright and other applicable intellectual property notices on all relevant
tangible media of expressions; and provided further that the choice of the
method of storage of the HVC Content shall be at the sole discretion of HVC.
d. HVC will guarantee that its file server and related equipment will
be of such capacity and operational speed to provide acceptable response times
and availability to system users.
e. Subject to the provisions of this Section 4(e), HVC shall process
its transactions by Internet users as follows:
i. If an Internet user accesses the HVC Library via Pegasus'
website, then any bookings and/or processing of reservations shall be forwarded
to the Pegasus website; and
ii. If an Internet user accesses the HVC Library via a website
owned by a hotel reservation service or other entity that can provide hotel
booking services ("Competitor"), then any bookings and/or processing of
reservations shall be forwarded back to that Competitor; and
iii. If an Internet user accesses the HVC Library from any
website other than through a Competitor website, HVC shall forward any bookings
and/or processing to Pegasus' website, making Pegasus the preferred booking
vendor; provided that Pegasus has the ability to undertake the bookings and/or
processing and the hotel was not contracted by a competitor marketing partner.
This includes all Internet users who originate at the HVC website.
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iv. On a monthly basis, in a jointly agreed upon format, HVC
shall provide Pegasus with a list of participating hotels and a list of IATA
numbers of participating travel agencies.
f. HVC shall train Pegasus sales staff at Pegasus locations to market
and promote the HVC Library to Properties for inclusion in the HVC Library,
which training shall be at the expense of HVC.
5. OBLIGATIONS OF PEGASUS. In consideration of the execution of this Agreement
by HVC and for Pegasus becoming HVC's preferred booking vendor, Pegasus agrees
to use its reasonable efforts to attain a minimum of 1,000 Initial Contracts
during the Term (the "Minimum Contracts), as set forth in Section 13 of this
Agreement; provided that in the event that Pegasus does not attain the Minimum
Contracts, the effect on the parties and the provisions of this Agreement shall
be that (i) Pegasus shall not be considered HVC's preferred booking vendor; and
(ii) the provisions of Section 8 and the Option shall be null and void.
6. OBLIGATIONS OF BOTH PARTIES.
a. Pegasus and HVC shall mutually agree upon a market program that may
include the creation of marketing collaterals, press releases and other
marketing materials, and which costs and expenses shall be shared by Pegasus and
HVC on a 50%/50% basis. If no agreement can be reached, this Contract shall
terminate.
b. Pegasus and HVC shall be responsible on a 50%/50% basis for all
documented costs and out of pocket related expenses in connection with the point
to point link from a major telecommunication provider, as described in Section
4(c) hereof.
7. CONSIDERATION.
a. Except as set forth in Section 7(c), 7(d) and Section 8 hereof, as
the sole consideration for the services to be provided by and the obligations of
Pegasus to the Company, Pegasus shall receive the following commission:
i. Twenty (20%) percent of all "Net Revenues" (as defined
below) received on all Initial Contracts obtained by Pegasus during the first
year of such Initial Contracts; and
ii. Ten (10%) percent of all Net Revenues received by HVC for
each Renewal obtained by Pegasus and which consideration for such renewals shall
be paid to Pegasus by HVC for a period of up to three years following the
termination of this Agreement for all Renewals.
b. For purposes of this Section 7, the term "Net Revenues" shall mean
the total dollar amount of funds received by the Company, based upon the terms
and conditions set forth on Exhibit B hereto and incorporated herein, less
applicable taxes, if any.
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c. The provisions of Section 7(a) and 7(b) notwithstanding, to the
extent that agreements with Properties are obtained by Pegasus at prices that
are less than as set forth on Exhibit B, attached hereto and incorporated herein
or as otherwise agreed upon between HVC and Pegasus, then the commission
schedules shall be adjusted as mutually agreed upon by HVC and by Pegasus.
d. To the extent that a conflict occurs whereby a Property is solicited
by two or more representatives of entities under this Agreement or any similar
agreement with HVC, then HVC, in its reasonable and fair discretion, shall
determine to which entity consideration shall be paid by HVC in connection with
the Initial Contract between HVC and such Property.
e. All fees due to Pegasus pursuant to this Agreement shall be paid by
HVC within thirty (30) days after receipt of funds by HVC. All commission on
installment sales shall be paid in corresponding installments. In connection
therewith, HVC shall furnish Pegasus with a full, complete and accurate
accounting showing dollar amounts received in connection with the Initial
Contracts (or Renewals) and such accounting shall also include detailed
information sufficient for Pegasus to determine the status of all contracts and
payments made on each of the Initial Contracts and Renewals obtained by Pegasus
on behalf of HVC. Pegasus shall have free and full access to such documentation
at any reasonable hour of the day during which the HVC's offices are open. HVC
shall retain such books of account and records and other documents and material
in HVC's possession or under its control insofar as they relate to the Initial
Contracts and Renewals for at least three (3) years following the termination or
expiration of this Agreement. Pegasus shall be responsible for any audits that
it may undertake in connection with such accounting or audit; provided that HVC
agrees to reimburse Pegasus for the cost of any audits deemed necessary and
proper and for which such audit finds a discrepancy of five percent (5%) or more
in favor of Pegasus.
8. OPTION TO PURCHASE. HVC shall grant Pegasus an option to purchase up to
thirty-three and one-third (33-1/3%) percent of the outstanding capital stock of
HVC for an aggregate of three million three hundred thirty-three thousand
($3,333,000) dollars as described more fully on Exhibit C (Option to Purchase
Common Stock of HotelView Corporation (the "Option")); provided that Pegasus has
met the requirements of the terms set forth in the Option which include as
follows:
At such time, on behalf of HVC, as Pegasus has obtained
i. not less than (A) one thousand (1000) Initial Contracts on
behalf of HVC and (B) for which HVC shall have received (I) executed
agreements and (II) full payment of the deposit amount stated in such
applicable Initial Contract, then the option to purchase up to five
(5%) percent of the outstanding Common Shares of HVC for an aggregate
of Five Hundred Thousand ($500,000) Dollars shall vest in Pegasus;
ii. not less than an additional (A) one thousand five
hundred (1,500) Initial Contracts on behalf of HVC (for a total of
2,500 Initial Contracts) and (B) for which
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HVC shall have received (I) executed agreements and (II) full payment
of the deposit amount stated in such applicable Initial Contract, then
the option to purchase up to an additional ten (10%) percent of the
outstanding Common Shares of HVC for an aggregate of One Million
($1,000,000) Dollars shall vest in Pegasus;
iii. not less than an additional (A) two thousand five hundred
(2,500) Initial Contracts on behalf of HVC (for a total of 5,000
Initial Contracts) and for which HVC shall have received (I) executed
agreements and (II) full payment of the deposit amount stated in such
applicable Initial Contract, then the option to purchase up to an
additional ten (10%) percent of the outstanding Common Shares of HVC
for an aggregate of One Million ($1,000,000) Dollars shall vest in
Pegasus; and
iv. not less than an additional (A) five thousand (5,000)
Initial Contracts on behalf of HVC (for a total of 10,000 agreements)
and for which HVC shall have received (I) executed agreements and (II)
full payment of the deposit amount stated in such applicable Initial
Contract, then the option to purchase up to an additional eight and
one-third (8-1/3%) percent of the outstanding Common Shares of HVC for
an aggregate of Eight Hundred Thirty-three Thousand ($833,000) Dollars
shall vest in Pegasus.
This option shall be cumulative during the Term, as set forth in Section 13, and
any renewals thereof, provided that once Initial Contract levels have been met
as described in this Section 8, this Option may be exercised at any time during
the Term of the Agreement and for a period of two (2) years after termination of
the Agreement (the "Option Period"), for whatever reason, at which time the
exercise period shall terminate. At all times during the Option Period, Pegasus
shall have the right to purchase such percentage of the outstanding capital
stock as is set forth in this Section 8 and in Exhibit C; provided that during
any such time during the Option Period that Pegasus shall not have obtained (A)
1000 Initial Contracts on behalf of HVC and (B) for which HVC shall have
received (I) executed Agreements and (II) full payment of the deposits stated in
such applicable Initial Contract, HVC or its affiliates shall have the absolute
right to sell, merge or consolidate all of the outstanding capital stock or all
of the assets of HVC and Pegasus shall have no rights whatsoever in connection
with such sale, merger, or consolidation.
9. THE BUSINESS. The parties to this Agreement specifically agree that the
Business as defined in Recital A of this Agreement, is the only business of HVC
and any additional products or services that may be developed, created,
produced, marketed or distributed, including without limitation, any additional
libraries or content, by Visual Data Corporation ("VDC"), the parent company of
HVC, or any affiliates of VDC, shall not be deemed to be a part or portion of
the Business or an asset or assets of HVC or in any other manner be related to
HVC.
10. REPRESENTATIONS AND WARRANTIES.
a. Pegasus represents and warrants that
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i. it is a validly formed corporation, existing under the laws
of the state of __________ and has all requisite power and authority to execute
and deliver this Agreement and to consummate and perform the transactions
contemplated herein. This Agreement has been duly and validly executed and
delivered by Pegasus and the performance by Pegasus of its obligations hereunder
have been taken or will be taken in accordance with the terms hereof. This
Agreement constitutes the valid and binding obligation of Pegasus;
ii. it or its subsidiaries is the owner of all rights, title
and interest in and to the xxxx TravelWeb, Click-It, WebRes, UltraDirect,
THISCO, UltraSwitch, UltraAccess, HCC Link, ChainLink and HCC (collectively the
Pegasus Marks") and all related proprietary rights thereto including any and all
rights and privileges provided under the trademark, copyright, trade secret and
other laws of the United States, the individual states thereof, and
jurisdictions foreign thereto, and the goodwill associated therewith (the
"Proprietary Rights").
b. HVC represents and warrants that
i. it is a validly formed corporation, existing under the laws
of the state of Florida and has all requisite power and authority to execute and
deliver this Agreement and to consummate and perform the transactions
contemplated herein. This Agreement has been duly and validly executed and
delivered by HVC and the performance by HVC of its obligations hereunder have
been taken or will be taken in accordance with the terms hereof. This Agreement
constitutes the valid and binding obligation of HVC;
ii. it is the owner of all rights, title and interest in and
to the xxxx HOTELVIEW (the "HVC Xxxx") and all related proprietary rights
thereto including any and all rights and privileges provided under the
trademark, copyright, trade secret and other laws of the United States, the
individual states thereof, and jurisdictions foreign thereto, and the goodwill
associated therewith (the "Proprietary Rights").
iii. it is or shall be the owner of all rights, title and
interest in and to each vignette and the HVC Library now in existence or
hereinafter created or modified and all related Proprietary Rights.
11. COPYRIGHT. Pegasus shall not assert any right, title or interest in or to
the HVC Content, HVC Library or any vignettes contained therein. Pegasus
acknowledges and agrees that HVC has reserved all right, title and interest in
and to the copyright, the right to apply for copyright registration, and any
extensions and renewals, in all publication, reproduction, broadcast or other
derivative rights of each vignette and the HVC Library including, but not
limited to merchandising rights, use of title rights, publication rights, and
foreign edition rights. Except as specifically set forth in this Agreement there
is no other grant of license to Pegasus by HVC in connection with any vignette
or the HVC Library.
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12. GRANT OF NON-EXCLUSIVE LICENSES.
a. During the Term (and any renewals thereof) as set forth in Section
13 of this Agreement, Pegasus hereby agrees to grant to HVC, a limited,
non-exclusive, personal right and license to use the Pegasus Marks under the
Proprietary Rights in connection with its marketing and promotional materials
and HVC accepts such grant, provided Pegasus gives prior written approval of all
uses.
b. During the Term (and any renewals thereof), HVC hereby agrees to
grant to Pegasus,
i. a limited, non-exclusive, world-wide, non-assignable,
personal right and license (the "HVC License") to unlimited access HVC
Content from Pegasus' Internet website at no charge.
ii. a limited, non-exclusive, world-wide, non-assignable,
personal right and license, subject to the prior written consent of
HVC, which approval shall not be unreasonably withheld, to private
label the HVC product (i.e. as Pegasus' HotelView).
c. The above grant of licenses notwithstanding, all modifications,
improvements, derivative works or otherwise created in connection with any
property by any party, and specifically including the Pegasus Marks, the HVC
Marks, the HVC Content, the vignettes and the HVC Library, that is the subject
of a grant of such licenses shall be the property of the party with whom the
original property was owned.
13. TERM.
a. INITIAL TERM. Except as otherwise provided herein, this Agreement
shall commence on the Effective Date and shall remain in full force and effect
for a period of two (2) years thereafter.
b. AUTOMATIC RENEWAL. The Term shall automatically be renewed for an
additional one (1) year periods, pursuant to the terms and conditions set forth
in this Agreement, unless (i) prior written notice is given to the
non-terminating party no less then ninety (90) days prior to the expiration of
the Term or any renewal Term, or (ii) this Agreement is terminated pursuant to
this Section 14.
14. TERMINATION.
a. IMMEDIATE TERMINATION. This Agreement may be terminated immediately
by either party upon the occurrence of any of the following events:
i. Any assignment of this Agreement by either party in
violation of Section 17(c) herein;
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ii. Commencement of voluntary proceedings by the
non-terminating party or of any involuntary proceedings against the
non-terminating party under any provision of any Federal or State act
relating to bankruptcy or insolvency;
iii. Any legal or equitable proceeding against the
non-terminating party, resulting in a judgment or decree, if the sale
of all or substantially all of the non-terminating party's assets are
contemplated or threatened as a result of such judgment or decree;
b. TERMINATION AFTER FAILURE TO CURE BREACH. If either party commits a
material breach of any of the provisions of this Agreement, the non-breaching
party may terminate the Agreement at any time, if after providing written notice
to the breaching party of the alleged breach or failure, the breach or failure
remains uncured for a period of ten (10) days after receipt of such notice (or
for a period of sixty (60) days as provided in Section 14(b) hereof).
c. NOTICE BEFORE EXPIRATION. If either party desires to not renew this
Agreement, it may terminate this Agreement by giving to the other party not less
than ninety (90) days' written notice prior to the end of any Term (or any
renewals thereof) of this Agreement.
d. WITHOUT PREJUDICE OF RIGHTS. The termination of this Agreement for
any reason shall be without prejudice to any rights of either party against the
other which may have accrued before the date of such termination.
e. AUTHORITY AFTER TERMINATION. After termination of this Agreement,
Pegasus shall have no further express authorization or consent from HVC to use
its Library free of charge, as set forth in Section 4(c) hereof.
15. INDEMNIFICATION
a. HVC shall indemnify and hold Pegasus harmless from and against, and
shall be responsible or liable for, any claims, liabilities, damages, losses,
costs, attorneys' fees, including, but not limited to, any indirect, special,
incidental, consequential or punitive losses or damages of any kind, including
lost profits with respect to any action, inaction or activities by HVC,
concerning, either directly or indirectly, the subject matter of this Agreement.
b. Pegasus shall indemnify and hold HVC harmless from and against, and
shall be responsible or liable for, any claims, liabilities, damages, losses,
costs, attorneys' fees, including, but not limited to, any indirect, special,
incidental, consequential or punitive losses or damages of any kind, including
lost profits with respect to any action, inaction or activities by Pegasus,
concerning, either directly or indirectly, the subject matter of this Agreement.
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16. RELATIONSHIP OF THE PARTIES. The relationship of HVC to Pegasus shall be
that of independent parties to this Agreement. Nothing in this Agreement shall
be construed to place the parties in the relationship of partners, joint
venturers or agents, and neither Pegasus nor HVC shall have the power to
obligate or bind each other in any manner whatsoever.
17. MISCELLANEOUS PROVISIONS.
a. NOTICES. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and if sent postage
prepaid by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, addressed as follows:
If to HVC:
HotelView Corporation
0000 X. Xxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, President
With a copy to:
Atlas, Xxxxxxxx, Trop & Borkson, P.A.
000 X. Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
If to Pegasus:
Pegasus Systems, Inc.
==========
Attention: __________
b. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
c. BINDING EFFECT/ASSIGNMENT. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the either party without the prior written
consent of the other party, which consent shall not be unreasonably withheld,
except that an assignment to a subsidiary or affiliate under the control of
assignor is permissible without approval.
d. FURTHER ASSURANCES. All parties hereto shall execute and deliver
such other instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
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e. CAPTIONS. The captions contained in this Agreement are inserted only
as a matter of convenience and in no way define, limit, extend or prescribe the
scope of this Agreement or the intent of any of the provisions hereof.
f. COMPLETENESS AND MODIFICATION. This Agreement constitutes the entire
understanding between the parties and supersedes and cancels any and all
previous agreements and understandings between the parties pertaining to the
subject matter of this Agreement. This Agreement may be amended, modified,
superseded or canceled, and any of its terms, covenants, representations,
warranties or conditions may be waived, only in writing signed by duly
authorized representatives of both parties.
g. WAIVER. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
h. SEVERABILITY. The invalidity or unenforceability, in whole or in
part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
i. CHOICE OF LAW. This Agreement shall become valid when executed and
accepted by HVC at its address as stated above. The parties agree that this
Agreement shall be deemed negotiated, made and entered into in the State of
Florida and shall be governed and construed under and in accordance with the
laws of the State of Florida.
j. ARBITRATION. The parties to this Agreement agree that in the event
of any dispute arising, either directly or indirectly, under or in connection
with this Agreement, that they will arbitrate the dispute or disputes in Boca
Raton, Florida pursuant to the rules and regulations of the American Arbitration
Association. The parties hereto consent to the award of damages by the
arbitration if so warranted. In the event of an arbitration, the prevailing
party shall be entitled to recover any and all reasonable attorneys' fees and
costs incurred at the arbitration level and/or any appeal of the arbitration.
k. CONSTRUCTION. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth in the first paragraph of this Agreement.
Witness: HVC:
______________________________ HOTELVIEW CORPORATION,
a Florida corporation
By: /S/ XXXXX X. XXXXXX, PRESIDENT
-------------------------------
Xxxxx X. Xxxxxx, President
Witness: PEGASUS SYSTEMS, INC.,
a ____________ corporation
______________________________ By: /S/ XXXX X. XXXXX III
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Name:
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Its:
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Notwithstanding any other provision contained in this Agreement, the
sole and exclusive remedy for Pegasus' failure, for whatever reason, to obtain
the Initial Contracts, the Minimum Contracts or the Renewal Contracts shall be
termination of this Contract and the option contained herein, all other
remedies, claims, damages or otherwise being hereby waived.
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Initials
