exv10w10w3



 







Exhibit 10.10.3




CONFIDENTIAL




LEASE AND INSTALLATION AGREEMENT




     This Lease and Installation Agreement (the “Agreement”) is executed this 20th day of August,
2004, by and between TA Operating Corporation (“Landlord”) and IdleAire Technologies Corporation
(“Lessee”).



RECITALS:




     WHEREAS, Landlord is the owner and/or operator of the travel centers which are located at the
addresses listed on Exhibit A hereto (hereinafter referred to individually as a “Travel
Center" and collectively being referred to as the “Travel Centers”); and



     WHEREAS, Lessee has developed the concept and an apparatus (the “Unit”) which heats and cools
the interior of vehicles using only electrical power; and



     WHEREAS, Lessee can install these Units in a manner that will allow drivers to heat and cool
their vehicles while parked at the Travel Centers without idling their engines, as well as provide
in-cab 120 volt AC power, shore power, local connections to basic internet, basic television, and
local telephone services; and



     WHEREAS, Landlord and Lessee have previously entered into a Lease and Installation Agreement
dated May 12, 2003, as amended, providing for the installation of the Units at
Landlord‘s Travel Centers in Paulsboro, New Jersey and Dallas, San Antonio and Baytown,
Texas (the “Original Lease Agreement”); and



     WHEREAS, Landlord desires to have these Units installed at all of its Travel Centers to
provide services to its customers and to insure that the installations do not interfere with its
operations; and



     WHEREAS, Lessee is willing to install the Units at all of the Travel Centers and to pay to
Landlord a portion of the revenues derived from the provision of services at the Travel Centers.



     NOW, THEREFORE, in consideration of the above, the mutual covenants and conditions set forth
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:



     1. Premises. Subject to the terms and conditions of this Agreement, and in
consideration of the monies to be paid to Landlord by Lessee, and the conditions and agreements to
be observed and performed by Lessee, Landlord hereby demises and leases to Lessee a portion of the
parking lot located at each Travel Center as more particularly described in Section 4(a) below (the
“Premises”). Lessee is not granted exclusive possession of the Premises and Landlord retains the
right to occupy and utilize the Premises.





 




			
	***	 	Indicates where material is omitted pursuant to a confidential treatment request and filed separately with the Commission.




 









 










     2. Term.



          (a) Except as otherwise provided herein, the term of this Agreement shall be for a period of
ten (10) years, commencing with the date of execution set forth above.




          (b) The Agreement shall automatically renew for five (5) more years if Landlord receives [***] (as defined
below) from Lessee during the [***] of this Agreement [***] from each parking space at which a Unit
has been installed at each of the Travel Centers and Lessee is not otherwise in default under the
terms of this Agreement at the time of such renewal.




          (c) In the event Landlord closes a Travel Center during the term of this Agreement, Landlord
shall have the right to terminate this Agreement early with respect to such Travel Center without
penalty or cost by providing sixty (60) days advanced written notice of termination to Lessee;
provided that Landlord may not terminate this Agreement early with respect to more than five (5)
Travel Centers pursuant to this Section 2(c) during any [***] period during the term of this
Agreement and closures resulting from condemnations or other takings as provided in Section 7(c)
shall not count toward this limitation.




     3. Lease Consideration.



          (a) Beginning sixty (60) days following the commencement of Services (as defined below) from
any Unit at each Travel Center pursuant to Paragraph 6 below, Lessee agrees to pay to Landlord the
consideration set forth in the Revenue and Profit Allocation Schedule attached hereto as
Exhibit B (the “Lease Consideration”). Lessee will report monthly to Landlord
the revenues generated. Each such monthly report shall be in the form attached hereto as
Exhibit C (with such additional information as Landlord may reasonably request from time to
time) and provided to Landlord within twenty-five (25) days of the end of each calendar month
accompanied by payment to Landlord by Lessee of the Lease Consideration. In addition, Lessee shall
provide Landlord with prior written notice at least forty-five (45) days prior to any changes from
time to time in the prices it charges customers for the Services, and shall not reduce prices from
the level in effect on the date of this Agreement by more than 20% without the prior written
consent of Landlord.




     4. Use of Premises.



          (a) Lessee shall, at its sole cost and expense, have the right and obligation to install the
Units and provide the services specifically listed on
Exhibit E, Section I (the “Basic
Services”) only at the truck parking spaces approved in advance in writing by Landlord
for each respective Travel Center. Lessee shall not make the Services available anywhere else at
the Travel Centers except at the truck parking spaces approved by Landlord with the understanding
that wireless internet access may be available to IdleAire customers wherever they choose to access
it. Under no circumstances will Lessee be permitted to deliver any physical products to customers
at the Travel Centers except for the items listed on Exhibit E, Section III, or






 




			
	***	 	Indicates where material is omitted pursuant to a confidential treatment request and filed separately with the Commission.




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additional
items approved in writing by Landlord. Except for pre-existing contractual obligations for any
Travel Centers purchased by Landlord after the date of this Agreement, Landlord shall not permit
any person other than Lessee to install any device, equipment or apparatus in the parking lot for
provision of any Basic Services on the parking areas for which Landlord receives Lease
Consideration from Lessee, or to otherwise provide in-cab heating and/or cooling of
tractor-trailers at the Travel Centers, during the term of this Agreement provided Lessee is not in
breach of the terms of this Agreement and no default has occurred or is continuing. The foregoing
sentence shall apply to “wired-based” solutions only, shall not in any way restrict
Landlord‘s customers‘ use of self-contained equipment for the provision of
Basic Services or prohibit Landlord from offering, directly or indirectly, wireless internet access
at the Travel Centers.




          (b) Other
than the auxiliary services listed on Exhibit E, Section II. (the “Auxiliary
Services”), Lessee shall not offer or provide any goods or services other than the Basic
Services without the prior written approval of Landlord, which approval Landlord may withhold in
Landlord‘s sole discretion. In the event Lessee desires to offer other services Lessee
shall provide a written request to Landlord containing a complete description of the proposed
services to be offered and a proposal on the revenue sharing with respect to such services.
Auxiliary Services, together with Basic Services, are sometimes collectively referred to herein as
the “Services”.




     5. Landlord’s Obligations.



          (a) Landlord will maintain and repair, at its cost, the Travel Center truck parking areas at
which a Unit has been installed in a manner in keeping with the normal parking lot maintenance for
such Travel Center. Lessee hereby acknowledges that no maintenance or repair is required by
Landlord on the effective date of this Agreement and that Lessee is accepting the Travel Centers in
their present, “as-is” condition. Under no circumstances will Landlord be required to reconfigure
or re-stripe its existing truck parking areas, unless the parties mutually agree to do so in which
event the costs will be borne by Lessee, except as otherwise provided in Section 6(b) below. In
connection with the periodic re-paving of the truck parking areas by Landlord, Lessee shall provide
Landlord reasonable assistance to allow efficient access for the paving equipment in and around the
parking spaces at which the Units are installed.




          (b) Landlord will cooperate with Lessee to keep all Travel Center parking areas at which Units
will be installed clear such that Lessee may install its Units without interruption and such that
professional drivers have, subject to periodic maintenance and acts outside of Landlord’s control,
unimpeded access to the Units after installation. Landlord shall cooperate with Lessee to assist
Lessee to complete its installation process, but Landlord shall not be required to incur any costs
in this regard.




          (c) Landlord will allow Lessee to promote, in the parking areas at each Travel Center, the
Services listed on Exhibit E in a manner consistent with its promotions for the Services throughout
Lessee’s entire network. Further, Landlord will allow placement at Lessee’s cost of one (1) vending
machine, one (1) video monitor, POS materials, promotional advertising and video feeds through the
video monitor for Lessee’s use in connection with the rental and




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promotion of the Units inside each
Travel Center with the placement and content to be mutually agreed upon prior to installation. The
POS materials, promotional advertising and video feeds shall not promote the Basic Services and
Auxiliary Services separate and apart from the core services of in cab heating and air
conditioning, in cab AC and in cab shore power and shall be subject to approval by Landlord which
will be deemed granted unless Lessee receives within ten (10) days of mailing or faxing of the
proposed material(s) to Landlord, written notice from Landlord that Landlord does not approve the
use of such material(s). Such written notice shall specify the reason(s) why Landlord does not
approve and such failure to approve shall not be based upon the fact that the Service(s) to be
promoted compete(s) with a service provided by Landlord.




          (d) Landlord will allow, and provide space and servicing for, the retail sale of IdleAire
pre-paid debit cards at each Travel Center and will collect all revenues therefor. Lessee will
consider working with Landlord’s over-the-counter point of sale activation vendor from time to time
to provide for point of sale activation of Lessee’s prepaid cards on such platform. Lessee shall,
subject to Landlord’s approval, develop an operations manual describing the retail sales process
for use by
Landlord’s employees. Lessee shall invoice Landlord on a monthly basis for all revenues owed
by Landlord from the sale of the IdleAire pre-paid debit cards within ten (10) days of each
calendar month end and Landlord shall provide payment to Lessee for all such revenues within twenty
five (25) days of each calendar month end.




          (e) Landlord shall allow Lessee to install, at Lessee’s sole cost and expense, and in
accordance with blue prints and procedures approved in writing by Landlord prior to the
commencement of installation, above ground and in the Equipment Area (as defined below), all of the
Units, mechanical supporting structures, distribution equipment, cabling and conduit for electrical
power, telephone and cable television, centralized servers, routers and other equipment, utility
service connections for electrical power, telephone, cable television and internet access,
equipment and related items necessary for proper operation of the Units and to provide the Services
at the designated truck parking spaces identified on the blue prints approved by Landlord at each
respective Travel Center (the “IdleAire System”).




          (f) Landlord shall, for the Term of this Agreement (and any renewal term), allow Lessee
unimpeded access to the Equipment Area and the truck parking spaces at which the Units are to be
installed for purposes of installing, maintaining, monitoring, repairing, replacing and operating
the IdleAire System and for the purpose of providing the Services. Lessee agrees to provide
advance notice to Landlord’s general manager at each Travel Center of Lessee’s intentions regarding
daily activity at the site involving third party contractors or relating to construction or
maintenance activities that may impede traffic flow.




          (g) Landlord shall allow Lessee (i) to construct and maintain, at Lessee’s sole cost and
expense, a portable building at a location and with a size and design approved in writing in
advance by Landlord in which to install the IdleAire System which may include video monitors and
kiosks for prepaid sales attached to the portable building (hereinafter referred to as the
“Equipment Area”).





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          (h) Landlord shall, subject to periodic maintenance and acts outside of Landlord’s control,
take no action to discourage, limit or impair utilization of the Units, Services or the IdleAire
System. Notwithstanding the foregoing, Lessee acknowledges that the truck parking spaces at the
Travel Centers will be available to truck drivers on a first-come, first-served basis and that the
truck parking spaces at which the Units have been installed will not be reserved for the exclusive
use of truck drivers electing to utilize the IdleAire System and Services. Lessee also hereby
acknowledges that Landlord may from time to time charge a fee for truck drivers to park in the
parking spaces at certain of the Travel Centers according to terms determined by Landlord and that
Landlord shall not be obligated to share any portion of the parking fees with Lessee. In the event
Landlord provides customers a credit against the parking fee for dollars spent by the customer at
the Travel Center, Landlord agrees to count dollars spent by the customer on Lessee’s Services at
the Travel Center during the particular stay. In addition, Lessee acknowledges that Landlord may
establish priority or restricted parking spaces in its parking lots from time to time for certain
customers as determined by Landlord.




          (i) In addition to the Lease Consideration to be paid to Landlord hereunder, Lessee agrees
that the greater of [***] of the [***], or [***] of the [***] of any funds received by Lessee with
regard to the generation, sale, trading or other use of [***] resulting from the installation of
the Equipment on the Truck Parking Areas shall be paid to Landlord by Lessee.




          (j) Landlord may during the term of this Agreement acquire or construct additional travel
centers not listed on Exhibit A. In the event any such travel center is already subject to
a lease with Lessee at the time Landlord acquires the travel center, such travel center will become
subject to the terms of this Agreement and any prior lease applicable to such location will be void
at the time Landlord acquires the travel center. In the event any such travel center is not subject
to a lease with Lessee at the time Landlord acquires it, then such location will be automatically
added to this Agreement provided that Lessee is in compliance with the terms of this Agreement and
completes the installation of the Units at all truck parking spaces at the travel center (1) by the
third anniversary of the date of execution of this Agreement for travel centers acquired or
constructed by Landlord on or before the second anniversary of the date of execution of this
Agreement, or (2) within eighteen months of the date of acquisition or construction for travel
centers acquired or constructed by Landlord after the second anniversary of the date of execution
of this Agreement. Notwithstanding the foregoing, in the event a newly acquired travel center is
subject to pre-existing contractual restrictions on Landlord’s ability to permit Lessee to install
or operate the IdleAire System, Lessee’s obligation to install the IdleAire System at such location
shall not accrue until the pre-existing contractual restrictions expire or are terminated. In the
event Lessee does not complete installation of the Units at all of the truck parking spaces at the
travel center within the time periods specified above in this sub-section, then Landlord may remove
from this Agreement such travel center.




          (k) Landlord may from time to time construct additional structures or add on to existing
facilities at the Travel Centers. In the event such construction or additions result in a loss of
truck parking spaces at a Travel Center for which Units have been previously installed by






 




			
	***	 	Indicates where material is omitted pursuant
to a confidential treatment request and filed separately with the Commission.




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Lessee,
then Landlord shall pay Lessee the actual costs incurred by Lessee in removing the Units and
re-installing the Units either at the affected Travel Center or another Travel Center. In lieu of
making such payment to Lessee, Landlord may at its option agree to provide Lessee a credit against
future Lease Consideration payable to Landlord for the affected Travel Center. The foregoing
obligation of the Landlord shall not apply in the event the facility construction or addition by
Landlord results from a condemnation or other taking of the Travel Center premises and the parties
rights in such circumstances shall be as provided in Section 7(c) below.




     6. Lessee’s Obligations.



          (a) On or before the [***] of the date of execution of this Agreement, Lessee shall install,
at Lessee’s sole cost and expense, the Units, the IdleAire System and the Equipment Area
(collectively, the “System”) at each Travel Center in a high quality, workmanlike and efficient
manner and in accordance with location-specific blue prints and procedures previously approved in
writing by Landlord prior to commencement of installation for each location. Without limiting the
generality of the foregoing, during the course of installation at each Travel Center, Lessee shall
take all reasonable steps to minimize the disruption to the traffic flow and the availability of
parking spaces at each Travel Center and, unless mutually agreed otherwise, no more than five (5)
truck parking spaces will be blocked at any one time for the purpose of installing or performing
maintenance or repairs on the System. Under no circumstances will the installation result in a net
reduction of truck parking spaces at each Travel Center. Subject to Landlord’s written approval of
final location blueprints for each installation, Lessee shall install the Units at all build-able
truck parking spaces at each Travel Center. Lessee shall complete the installations at Landlord’s
Travel Centers on a priority basis over any other installations of the System in the same markets
or funding regions as Landlord’s Travel Centers. Notwithstanding anything contained in this
Agreement to the contrary, at Travel Centers not currently subject to anti-idling regulations
Lessee shall be permitted to install Units in phases at each Travel
Center with a minimum number of Units per phase of 50 Units. Landlord may remove from this
Agreement any Travel Center at which Lessee has not completed the installation of 50 Units by the
third anniversary of the date of execution of this Agreement. Lessee’s obligation to install the
System at any of the Travel Centers is subject to: (i) Landlord having ownership or control over
such Travel Center at the time Lessee commences installation of the System; (ii) Landlord and
Lessee agreeing on the construction methods and materials with respect to the installation of the
System at such Travel Center; (iii) completion of satisfactory engineering and environmental
surveys at such Travel Center; (iv) confirmation that no part of the System crosses a public right
of way adjacent to such Travel Center; (v) receipt from Landlord of all requested maps, blue prints
and other relevant information already in the possession of Landlord relating to such Travel Center
on a timely basis; (v) receipt by Landlord of consent from its landlord at any Travel Centers
leased by Landlord; and (vii) Lessee 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 permits, fuel, power, materials or supplies;
transportation delays by third parties; or any other cause (whether or not






 




			
	***	 	Indicates where material is omitted
pursuant to a confidential treatment request and filed separately with the
Commission.




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similar to those
described in this Section 6(a)) beyond the control of Lessee. As soon as Lessee becomes aware of
the need for any easements relating to the installation of the System, Lessee shall notify
Landlord. The placement and terms of any easement shall be subject to the prior approval of
Landlord. All costs arising from the creation, modification or removal of any easement shall be the
responsibility of Lessee.




          (b) Lessee shall use best efforts not to cause any damage to the Travel Center duringthe
installation, maintenance and/or operation of the System at each Travel Center, including, without
limitation, using best efforts to avoid digging in the area of any underground utilities presently
serving or crossing the Travel Centers. Lessee shall immediately cause to be removed any mechanics
liens, or other restrictions on Landlord’s title in the Travel Centers, resulting from the
installation or existence of the System at the Travel Centers. Lessee shall promptly repair, at its
sole cost and expense, any damage to the Travel Center or surrounding property that is caused by
Lessee or results from the installation, operation, maintenance or existence of the System at each
Travel Center. However, Lessee shall not be responsible for any existing defects or deficiencies or
the normal wear and tear to the parking lot or the Travel Center. Lessee shall provide Landlord
prompt written notice of any defects or deficiencies discovered by Lessee during installation.
Lessee shall remove any remaining PNV bollards from the entire parking lot at each Travel Center at
the time Lessee is first installing the System at a Travel Center. Lessee shall bear the expense of
removal of the bollards and surface patching in the vicinity of the parking lot where Units are
being installed in such phase. Landlord shall reimburse Lessee its direct out-of-pocket cost of
bollard removal and surface patching for those portions of the parking lot where removal is not
necessary for the installation of Units in such phase, provided that Lessee shall repay such
amounts to Landlord at the time Units are later installed in those portions of the parking lot as
required by Section 6(a) above. All bollard removals and surface patching shall be done in
accordance with a scope of work approved in advance by Landlord, and Lessee shall obtain
Landlord‘s prior written approval of the portion of the cost of bollard removal and
surface patching at each location for which Landlord will reimburse Lessee as provided in the
immediately preceding sentence. Lessee shall seal and re-stripe the entire parking lot in
accordance with blueprints approved in writing in advance by Landlord at each Travel Center at the
time Lessee is first installing the System at a Travel Center. Lessee shall bear the expense of
sealing and re-striping the parking lot in the vicinity of the parking lot where Units are being
installed in such phase. Landlord shall reimburse Lessee its direct out-of-pocket cost of sealing
and re-striping for those portions of the parking lot where removal is not necessary for the
installation of Units in such phase, provided that Lessee shall repay such amounts to Landlord at
the time Units are later installed in those portions of the parking lot as required by Section 6(a)
above. All sealing and re-striping shall be done in accordance with a scope of work approved in
advance by Landlord, and Lessee shall obtain
Landlord‘s prior written approval of the portion of the cost of sealing and
re-striping at each location for which Landlord will reimburse Lessee as provided in the
immediately preceding sentence.




          (c) Lessee shall, at its own cost and expense, on a timely basis secure, and continuously
maintain in full force and effect, all licenses, permits and approvals required with respect to the
installation, operation and maintenance of the System and the provision of the




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Services. Lessee
shall at all times comply with all applicable laws, rules, tariffs, regulations, etc. in connection
with the installation, operation and maintenance of the System, the provisions of the Services, or
otherwise related to the performance of Lessee‘s obligations hereunder.




          (d) Lessee shall, at its own cost and expense, maintain and repair the Units, Equipment Area
and the System and keep the same in good condition at all times during the term of this Agreement.
Lessee shall use all reasonable efforts to keep all of the Units operational twenty-four (24) hours
per day, three hundred sixty-five (365) days per year; however, at no time will fewer than eighty
percent (80%) of the Units at each Travel Center be fully operational. Lessee shall locate at least
one (1) employee at each Travel Center on a twenty-four (24) hours per day, three hundred
sixty-five (365) days per year basis to respond to customer service requests. Lessee shall require
all of its employees to abide by Landlord’s employee guidelines as they reasonably relate to
conduct of Lessee’s employees in a Travel Center while present at a Travel Center. In addition,
Lessee shall maintain, and advertise to customers, a toll free telephone number for customer access
to a 24 hour help desk. In the event any Unit is not operational, Lessee will repair the Unit and
make it fully operational within fourteen (14) days of the original failure. Lessee shall design,
install and maintain the Units and the System so that it has sufficient capacity to provide the
Services (except for movies on demand) to each parking space at which a Unit has been installed.
Lessee acknowledges that Landlord has no responsibility for maintenance or repairs to the System,
including inspection or reporting of equipment or service outages. Without limiting the generality
of the foregoing, Lessee acknowledges that Landlord has no responsibility for damage to the System
resulting from misuse, vandalism or accident, except for damage to the System resulting directly
from accidents caused by the negligence of Landlord’s employees.




          (e) Lessee shall promptly respond to all reasonable requests from Landlord from time to time
for information regarding the installation, maintenance and operation of the System at the Travel
Centers.




          (f) Lessee shall timely pay all taxes, including, without limitation, taxes arising from the
provision of the Services and personal or real property taxes, related to the existence or
operation of the Units, Equipment Area, System or any other property owned by Lessee and located at
the Travel Centers, except for sales taxes related to over-the-counter sales which shall be the
responsibility of Landlord and shall be charged to customers in addition to the costs for the
Services.




          (g) Lessee shall provide Landlord (1) within ninety (90) days after the close of each fiscal
year of Lessee, audited financial statements of Lessee as of the end of such fiscal year; and (2)
within forty-five (45) days after the close of each of Lessee’s first three fiscal quarters each
year, an un-audited balance sheet of Lessee as of the end of such fiscal quarter and un-audited
statements of operations and cash flows of Lessee for the fiscal quarter just ended.




          (h) Lessee shall upgrade the Units and the System from time to time at each Travel Center so
that the Units and the System are equal to or better than the best units or system offered by
Lessee or its affiliates at any other truck stop or travel center location.





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     7. Rights and Duties of the Parties with Respect to the Units and Related Equipment.



          (a) Notwithstanding the fact that certain parts of the Units may be affixed to each Travel
Center, neither the Units nor such parts of the Units shall become a fixture and the Units shall
remain the property of Lessee. Landlord acknowledges that the Units and the Services, and the
manner of their operation and installation, are proprietary to Lessee. Accordingly, Landlord shall
use reasonable efforts to insure that all information and data concerning the Units and the
Services shall not be divulged and Landlord shall not use any of such information or data for its
own purposes or to compete with Lessee in any manner. Likewise, Lessee shall use reasonable efforts
to insure that all information and data concerning Landlord or Landlord‘s operations at
the Travel Centers shall not be divulged and Lessee shall not use any of such information or data
for its own purposes or to compete with Landlord in any manner.




          (b) Upon the expiration or termination of this Agreement for any reason, Lessee shall have the
right and obligation to, within 120 days of the date of expiration or termination: (i) remove, at
its sole cost and expense, the System and related equipment from each Travel Center; or (ii) at
Landlord’s sole option, sell or lease it to the Landlord or its successors, nominees or assigns
together with a license to any technology or software needed to operate the System. After removal,
Lessee shall restore each Travel Center 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 or permitted to remove any underground cable, conduit, wiring or subsurface concrete
foundations. Lessee shall be obligated to remove any above surface concrete or improvements and
repair the parking lot so that it is a smooth, flush surface. Lessee shall bear all costs of
removal or vacation of any easements created for the installation or operation of the System upon
terms acceptable to Landlord. Any components of the System or other equipment or improvement not
removed within 120 days of the date of expiration or termination may be treated as abandoned by
Landlord and Landlord may either keep such equipment or improvement or have such equipment or
improvement removed at Lessee’s expense.




          (c) In the event of the condemnation or other taking, in whole or in part, of the Premises
under the power of eminent domain or otherwise, the condemnation award paid to the Landlord, or the
payment received by the Landlord in exchange for its voluntary conveyance in lieu of condemnation,
shall belong solely to the Landlord, and Lessee shall not, by virtue of this Agreement, be entitled
to any part thereof; provided, however, that nothing in this Agreement shall
preclude Lessee from prosecuting any claim directly against the condemning authority for loss of
business, or depreciation to, damage to, or cost of, removal of, or for the value of personal
property of Lessee; and further provided, however, that no such claim shall
diminish or otherwise adversely affect the Landlord’s award or proceeds.




          (d) Lessee agrees that it will deposit into an escrow account (the “Escrow
Account”) in the manner hereinafter provided $250 for each Unit installed at each Travel
Center, as hereinafter provided, during the period commencing with the date of this Agreement and
will




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continue until such time that the total amount deposited into the Escrow Account equals
$2,000,000 (excluding any interest earned). The Escrow Account will be funded out of gross revenues
at the Travel Center where each Unit is installed at the rate of $10 per month, per Unit (gross
revenues permitting), commencing on the date of this Agreement for locations already installed and
on the date Lease Consideration becomes payable to Landlord under Section 3 of this Agreement for
all other locations, and continuing until $250 per installed unit has been escrowed, or until the
total of the Escrow Account, exclusive of interest, equals $2,000,000. The amounts deposited by
Lessee into the Escrow Account shall not count as an expense for purposes of determining Lease
Consideration under Exhibit B to this Agreement. Each month in which Lessee is obligated to make
escrow deposits hereunder, Lessee shall provide Landlord a written report reflecting the amounts
deposited with the Escrow Agent during the preceding month. This report shall be given no later
than the date Lessee’s monthly report of revenues
and expenses is due under Section 3 of this Agreement. Landlord shall further be entitled to
receive from the Escrow Agent a duplicate copy of the monthly statement rendered to Lessee in
connection with the Escrow Account. The Escrow Account shall be established with and held by
National City Bank, or another financial institution mutually agreeable to the parties (the “Escrow
Agent’’), pursuant to an Escrow Agreement substantially in the form of Exhibit F hereto (the
“Escrow Agreement"). All interest earned on or appreciation in the value of the Escrow
Account shall remain in the Escrow Account and shall accrue for the benefit of, and be payable to,
Lessee or Landlord in accordance with the terms of the Escrow Agreement. All fees and expenses
charged by the Escrow Agent shall be paid out of the gross revenues at each Travel Center in
proportion to the amounts deposited into escrow with respect to that Travel Center and will be
deducted as an expense for purposes of determining Lease Consideration under Exhibit B to this
Agreement. Subject to the remaining provisions of this Section, Landlord and Lessee agree that the
total amount placed in the Escrow Account shall be payable to Lessee following termination of the
Lease Agreement as provided in the Escrow Agreement unless Landlord has made a valid claim against
the Escrow Account as set forth in the Escrow Agreement. To initiate disbursement by the Escrow
Agent, Lessee or Landlord shall serve a Disbursement Instruction to Escrow Agent as described in
Section 4(b) of the Escrow Agreement. If Escrow Agent has not received an objection to the
Disbursement Instruction within 15 calendar days of Escrow Agent providing notice to the parties of
the receipt of the Disbursement Instruction, Escrow Agent shall disburse so much of the principal
amount of the Escrow Fund as is requested in the Disbursement Instruction, with the remainder of
the principal amount, together with all accrued interest and appreciation thereon, to be
distributed to Lessee. Any disbursement withheld by the Escrow Agent pursuant to an objection shall
be disbursed by Escrow Agent in accordance with Section 4 of the Escrow Agreement. When Escrow
Agent has disbursed the Escrow Fund in full, the Escrow Agreement shall terminate and the Escrow
Agent shall be discharged. Landlord agrees that Lessee may at any time substitute other collateral
of equivalent security, if acceptable to Landlord, for some or all of the Escrow Account. Lessee’s
failure to make a deposit into escrow as to any Travel Center shall be treated as a default or
breach by Lessee in the payment of Lease Consideration to Landlord as to that Travel Center,
entitling Landlord to the relief set forth this Agreement, including, without limitation, the right
to terminate this Agreement as provided herein. The existence of the Escrow Account shall not in
any way diminish Lessee’s obligations under this Agreement, including, without limitation, Section
7(b) above.





- 10 -









 








     8. Representations and Warranties of Lessee.



          (a) Lessee 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 Lessee have been duly
authorized by all necessary action of Lessee. This Agreement, and each of the other documents to be
executed and delivered by Lessee pursuant to this Agreement, have been duly executed and delivered
by Lessee and are the valid and binding obligations of Lessee, 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 Lessee pursuant to this Agreement, will not: (i) conflict with or
violate any provision of Lessee’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 Lessee; 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 Lessee.




          (c) Lessee 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) Lessee has provided to Landlord audited financial statements for Lessee for the most
recently completed fiscal year of Lessee. Lessee represents that it has the capital available to
install and operate the System at the Travel Centers in accordance with the terms of this
Agreement:




          (e) All of the information contained in the representations and warranties of Lessee 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.




     9. Representations and Warranties of Landlord.



          (a) Landlord is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has full corporate power and authority; (i) to enter into this
Agreement; and (ii) to carry out the other transactions and agreements contemplated by this
Agreement.




          (b) The execution, delivery and performance of this Agreement by Landlord have been duly
authorized by all necessary corporate action of Landlord. This Agreement, and each of the other
documents to be executed and delivered by Landlord pursuant to this Agreement, have been duly
executed and delivered by Landlord, and are the valid and binding

- 11 -









 








obligations of Landlord,
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 Landlord pursuant to this Agreement,
will not: (i) conflict with or violate any provision of Landlord’s charter, bylaws 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 Landlord; 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 Landlord.




          (c) Landlord 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 Landlord 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.




     10. Waiver of Subrogation. Each party hereto waives any and every claim which may
arise in its favor against the other party hereto during the term of this Agreement, or any renewal
or extension hereof, for any and all loss of, or damage to, any of its property located without or
upon or constituting a part of the Premises leased hereunder, if such loss or damage is covered by
valid and collectible fire and extended coverage insurance policies, and only to the extent that
such loss or damage is recoverable under said insurance policies. Said mutual waivers shall be in
addition to, and not in limitation or derogation of, any other
waiver or release contained in this Agreement with respect to any loss of, or damage to,
property of the parties hereto. Inasmuch as the above mutual waivers will preclude the assignment
of any claim described above by way of subrogation (or otherwise) to an insurance company (or any
other person), each party hereto agrees immediately to give to each insurance company which has
issued to it policies of fire and extended coverage insurance written notice of the terms of said
mutual waivers and to have said insurance policies properly endorsed, if necessary, to prevent the
invalidation of said insurance coverage by reason of said waivers.



     11. Indemnity. Lessee shall bear the risk of loss and hereby indemnifies and holds
harmless Landlord for (i) damage to or destruction of any property, including with out limitation,
damage to the Travel Center, the Units, the Equipment Area and the System, arising from the
existence, installation, operation, utilization or repair of, or otherwise in any way related to,
the Units, the Equipment Area, the Services and the System, except to the extent such damage is
caused by the gross negligence or willful misconduct of Landlord, its employees, contractors or
agents, and (ii) injury to, or death of, any person arising from the existence, installation,
operation, utilization or repair of, or otherwise in any way related to, the Units, the Equipment
Area, the Services and the System, except to the extent such damage is occasioned by the gross
negligence or willful misconduct of Landlord, its agents, employees, contractors, or agents. The
foregoing indemnity obligations of Lessee shall include reasonable attorneys’ fees, investigation
costs and all



- 12 -









 




other costs and expenses incurred by Landlord from the first notice that any claim or
demand has been made or may be made. The provisions of this Section 11 shall survive the
termination of this Agreement.




     12. Insurance. Both Landlord and Lessee shall maintain during the Term of this
Agreement (or any renewal term), at their sole cost and expense, commercial general liability
insurance in the minimum amount of Three Million Dollars ($3,000,000.00) plus an umbrella policy
providing total coverage of at least $5,000,000 against any claims arising out of its own
respective negligence and any liabilities arising out of its respective products and/or services,
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. Each party hereto shall provide to the other party a
certificate of insurance evidencing insurance coverage in compliance with this Section 12. Lessee
and Landlord shall review the amount and terms of insurance coverage on an annual basis and make
such adjustments as may be reasonably necessary based upon the prior years’ claims experience and
other factors affecting the appropriate level of coverage.



     13. 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 (other than labor disputes, strikes or boycott’s
directly involving a party’s employees), flood, fire, public emergency, revolution, insurrection,
riot, was, 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. Notwithstanding the foregoing, in the event
either party is unable to perform as a result of one of the above-described circumstances for a
period of one hundred and eighty (180) days, the other party shall have the right to terminate this
Agreement with respect to the affected Travel Center(s).



     14. Assignment/Subordination/Estoppel.



          (a) Landlord may sell, assign, transfer or otherwise dispose of its interest in one or more of
the Travel Centers (through a change of control or otherwise) (collectively, a “Disposal”) provided
that in the event of a Disposal of all of the Travel Centers the acquiror of such interest or
assets shall assume the Landlord’s rights and obligations hereunder and shall be bound by the Terms
of this Agreement, in which case Lessee shall recognize the acquiror of such Travel Centers as its
Landlord for the purposes of this Agreement. In the event of a Disposal of less than all of the
Travel Centers, Landlord and Lessee shall take all reasonable steps to cause the acquiror of such
Travel Center(s) to enter into a separate agreement with Lessee with respect to such Travel
Center(s) on the same terms as contained in this Agreement pertaining to such Travel Center(s) for
the then remaining term of this Agreement. In the event the acquiror of such Travel Center(s) is
unwilling to enter into such separate agreement, Landlord may terminate this Agreement with respect
to such Travel Center (1) without penalty or cost for the first two (2) Travel Centers terminated
pursuant to this Section 14(a), or (2) by, at Landlord’s option, paying Lessee (i) the actual costs
of relocating and installing the Units at an alternative location, or (ii) the unamortized portion
of Lessee’s actual costs incurred in installing the System at such Travel




- 13 -









 







Center, amortized on a
straight line basis over ten (10) years, for any Travel Centers in excess of two (2) terminated
pursuant to this Section 14(a).




          (b) Lessee 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.
Lessee may sell, assign, transfer or otherwise dispose of its interest in this Agreement, provided
that the acquiror of such interest is not the owner or operator of one or more truck stops or
travel centers and provided further that said acquiror shall assume all of Lessee’s rights and
obligations hereunder and shall be bound by the terms of this Agreement. No such sale, assignment,
transfer or other disposal shall relieve Lessee of its obligations under this Agreement without the
prior written consent of Landlord.




          (c) This Agreement shall be subordinate to each and every underlying lease, deed of trust or
mortgage encumbering the Premises or any portion thereof, whether now existing or in the future,
and to any advances made on the security thereof and to any renewals, modifications,
consolidations, replacements or extensions thereof, whenever made or recorded. Landlord shall use
commercially reasonable efforts to obtain a non-disturbance agreement from all current and future
holders of mortgages or deeds of trust affecting the Premises (hereinafter collectively referred to
as the “Mortgagees”); provided, however, that Landlord shall not be required to pay any sum
demanded by any Mortgagee consideration for any such non-disturbance agreement. If any ground
lessor, beneficiary or mortgagee elects to have this Agreement prior to the lien of its ground
lease, deed of trust or mortgage and gives written notice thereof to Lessee, this Agreement shall
automatically be deemed prior to such ground lease, deed of trust or mortgage whether this
Agreement is dated prior or subsequent to the date of said ground lease, deed of trust or mortgage
or the date of recording thereof. Lessee shall sign and deliver any instrument or documents
necessary or appropriate to evidence any attornment or subordination or agreement to do so. If
Lessee fails to do so within twenty (20) days after written request, Lessee hereby makes,
constitutes and irrevocably appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact, coupled with an interest, of Lessee to execute and deliver any such instrument or
document.




          (d) Lessee shall from time to time, within ten (10) days after being requested to do so by
Landlord, execute, acknowledge and deliver to Landlord (or, at the Landlord’s request, to any
existing or prospective purchaser, transferee, assignee or mortgagee of any or all of the Leased
Premises, any interest therein or any of the Landlord‘s rights under this Agreement) an
instrument in recordable form certifying (i) that this Agreement is unmodified and in full force
and effect (or, if there has been any modification thereof, that it is in full force and effect as
so modified, stating therein the nature of such modification); (ii) as to the amount of any prepaid
rent or any credit due to Lessee
hereunder; (iii) as to whether, to the best knowledge, information and belief of the signer of
such certificate, Landlord or Lessee is then in default in performing any of its obligations under
this Agreement (and, if so, specifying the nature of each such default); and (iv) as to any other
fact or condition reasonably requested by Landlord or such other addressee.





- 14 -









 








     15. Ownership and Confidentiality. Landlord recognizes and agrees that Lessee shall,
during the Term of this Agreement and thereafter, retain sole ownership of the System. Landlord
recognizes the proprietary nature of the concept and the design of the System and Lessee recognized
the proprietary nature of certain information regarding Landlord’s business and locations.
Accordingly, Landlord and Lessee agree to maintain, and cause each of its employees and agents to
maintain, and keep strictly confidential all confidential information of the other party,
including, without limitation, the terms of this Agreement, that it obtains or receives in
conjunction with the installation and operation of the System under this Agreement. Landlord
further agrees that the “IdleAire” name and logo shall be and remain the property of Lessee and all
references by Landlord to the Units or the Services shall incorporate and/or refer to Lessee by its
full name (“IdleAire”), whether in literature, electronic or print displays, articles, advertising,
billboards, banners or otherwise. The name “IdleAire” is, or will be, a registered service mark of
Lessee and, to the extent required by Lessee, Landlord shall execute a no cost limited license
agreement for the use of such service mark. Except for the use of Landlord’s name or trademarks in
press releases approved by Landlord pursuant to Section 21, nothing in this Agreement shall grant
to Lessee any rights to Landlord‘s name, logos, trademarks or service marks.



     16. No Estate in Land. This Agreement shall create the relationship of Landlord and
Lessee between the parties hereto; no estate shall pass out of Landlord. Lessee has only a
usufruct, not subject to levy and sale, and not assignable by Lessee except as provided in Section
14 hereof.



     17. Holding Over. If Lessee remains in possession of the Premises after expiration of
the Term, with Landlord‘s acquiescence and without any express agreement of the parties,
Lessee shall be a tenant under a month-to-month tenancy at the same Lease Consideration in effect
at the end of this Agreement (and subject to all terms and conditions of this Agreement except as
modified by this Section 17), and there shall be no renewal of this Agreement by operation of law.



     18. Defaults. In the event either party hereto shall breach or otherwise become in
default of any of its obligations hereunder, then:



          (a) The non-defaulting party shall be entitled to have and recover all of its damages and
losses arising out of such default from the defaulting party; and




          (b) The non-defaulting party shall have the right to terminate this Agreement upon notice of
intent to terminate being given to the defaulting party unless the defaulting party cures such
default and pays to the non-defaulting party all losses and damages incurred by the non-defaulting
party within a period of thirty (30) days following notice of default having been given to the
defaulting party by the non-defaulting party (except for payment defaults which must be cured
within fifteen (15) days following notice of default). In addition to the foregoing, in the event
Lessee fails to pay the
Lease Consideration within twenty five (25) days of the end of each calendar month as provided
in Section 3(b) on two (2) or more occasions in any twelve (12) month period, Landlord shall have
the unrestricted right to terminate this Agreement by providing written notice of termination to
Lessee.





- 15 -









 








     19. Franchise Locations. In addition to the Travel Centers identified on Exhibit
A, as of the date of this Agreement twenty-three (23) additional travel centers as listed on
Exhibit D are operated by independent franchisees of TA Franchise Systems Inc., an
affiliate of Landlord (“Franchise Locations”). During the thirty-six (36) month period following
the execution date of this Agreement, Lessee shall install the IdleAire System at all Franchise
Locations who elect to enter into a lease agreement with Lessee. Landlord shall use reasonable
efforts to encourage all Franchise Locations to enter into lease agreements with Lessee, however
Lessee acknowledges that Landlord cannot guarantee that all Franchise Locations will elect to enter
into a lease agreement. Lessee hereby acknowledges that the Franchise Locations are operated by
independent third parties and Landlord is not responsible for the acts or omissions of the
operators of the Franchise Locations. Lessee will offer lease terms substantially similar to the
terms of this Agreement, as approved in advance by Landlord, to each Franchise Location. In the
event Landlord’s affiliates enter into franchise relationships with additional travel centers not
listed on Exhibit D during the term of this Agreement, Lessee shall similarly offer to
enter into lease agreements with such additional Franchise Locations and install the IdleAire
System at such additional Franchise Locations (1) by the third anniversary of the date of execution
of this Agreement for additional Franchise Locations added on or before the second anniversary of
the date of execution of this Agreement, or (2) within eighteen months of the date such additional
Franchise Location becomes a franchise for Franchise Locations added after the second anniversary
of the date of execution of this Agreement. In the event a Franchise Location at which the System
has been installed becomes a Landlord company-operated location during the term of this Agreement,
the converted location will become subject to the terms of this Agreement and the prior lease
applicable to such location will be void at the time Landlord begins operating the travel center.



     20. Rights Cumulative. All rights, powers and privileges conferred hereunder upon
either party hereto shall be cumulative but not restrictive to those given at law or in equity.



     21. Press Releases. Lessee and Landlord 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. Nothing in this section shall prohibit Lessee or Landlord from making any disclosure,
which its legal counsel deems necessary or advisable to fulfill such party’s disclosure obligations
under applicable law. All public disclosures shall be transmitted by telecopier to the other party
or its counsel for approval prior to publication or dissemination.



     22. Notices.




          (a) Any notice, election, or other communication required or permitted hereunder shall be in
writing and shall be either: (i) sent by same-day or overnight courier service, or (ii) sent by
certified or registered United States mail, return receipt requested, postage and charges prepaid,
to the following address:




	 	 	 	 	 
	 

	 	To Landlord:
	 	TA Operating Corporation
	 

	 	 	 	24601 Center Ridge Road, Suite 200
	 

	 	 	 	Westlake, Ohio 44145
	 

	 	 	 	Attn: Vice President — Retail Marketing
	 
	 	 	 	 
	 	 	With a required copy to the same address Attn: General Counsel.






- 16 -









 






	 	 	 	 	 
	 

	 	To Lessee:
	 	IdleAire Technologies Corporation
	 

	 	 	 	900 S. Gay Street, Ste. 300
	 

	 	 	 	Knoxville, Tennessee 37902
	 

	 	 	 	Attn: Senior Vice President and General Counsel






          (b) Any notice, election or other communication delivered or mailed as aforesaid shall, if
couriered by same-day or overnight delivery service, be deemed received on the date of delivery to
such addressee or address regardless of whether accepted, and if mailed, be deemed received upon
date of actual receipt or on the third (3rd) calendar day subsequent to date of postmark, whichever
is earlier.




          (c) Each party hereof may change its address and addressee for notice, election, and other
communication from time to time by notifying the other parties hereto of the new address and
addressee in the manner provided for giving notice herein.




          (d) Any notice shall be deemed received if provided as aforesaid to any of the above-named
attorneys and to the above-named parties, regardless if accepted or rejected.




     23. Parties. “Landlord,” as used in this Agreement, shall include Landlord and its
heirs, executors, legal representatives, successors and assigns and successor in title to the
Premises. “Lessee” shall include Lessee and its heirs, executors, legal representatives, successors
and, if this Agreement is validly assigned or sublet, its assigns or sublessees. “Landlord” and
“Lessee” shall include male and female, singular and plural, corporation, partnership or
individual, as may fit the particular parties.



     24. 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.



     25. Favored Nations. Lessee agrees that during the Term of this Agreement Lessee and
its Affiliates shall enter into no contractual arrangement with any other travel center or truck
stop with up front payments, Lease Consideration or any other economic consideration paid to, or
otherwise received by, any other travel center or truck stop more favorable than those provided to
Landlord hereunder, without also making such offer available to Landlord. In addition, in the event
Lessee or its Affiliates enter into an arrangement with any other travel center or truck stop
providing for gross receipts percentages payable to the travel center/truck stop operator greater
than [***], then the gross receipts percentages payable to Landlord pursuant to Exhibit B
shall be increased so that Landlord’s gross receipts percentages are [***] higher than the
gross receipts percentages payable by Lessee or its Affiliates to all other travel center/truck
stop operators.



     26. Headings. The section headings contained in this Agreement are for convenience only and shall not
enlarge or limit the scope or meaning of the various and several sections hereof. Words in the
singular number shall be held to include the plural, unless the context otherwise requires.






 






*** Indicates where material is omitted pursuant to a confidential treatment request
and filed separately with the Commission.


- 17 -









 





     27. Entire Agreement; Modification. This Agreement and the exhibits, riders and
schedules attached hereto set forth the entire agreement between the parties and cancel all prior
negotiations, arrangements, brochures, agreements, and understandings, if any, between Landlord and
Lessee regarding the subject matter of this Agreement, including, without limitation, the Letter of
Intent dated February 6, 2002. No amendment or modification of this Agreement shall be binding or
valid unless expressed in a writing executed by both parties hereto. This Agreement shall supersede
and replace the terms of the Original Lease Agreement as to the four (4) Travel Centers covered
thereby, provided that Landlord shall retain all Initial Payments (as defined in the Original Lease
Agreement).



     28. 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.



     29. Audits. During the term of this Agreement, upon fifteen (15) days written notice
being given to Lessee by Landlord, Landlord shall have the right to inspect or audit any and all
books and records related to calculation of the Lease Consideration to be paid to Landlord pursuant
to Paragraph 3(b) hereof or the verification of Lessee’s compliance with the terms of this
Agreement, including, without limitation, the terms of Section 25 above. Lessee’s officers and
employees shall cooperate with and facilitate Landlord‘s inspection and audit. Any such
inspection or audit shall be solely at Landlord’s expense.



     30. 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 Atlanta, GA
in accordance with the then existing rules of the American Arbitration Association. Lessee and
Landlord 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.



     31. 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.



- 18 -









 





     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed pursuant to
appropriate authority duly given, hereunto affixed the day and year first above written.



LANDLORD:




TA OPERATING CORPORATION




By: /s/ Timothy L. Doane 




Title: President




LESSEE:




IDLEAIRE TECHNOLOGIES CORPORATION




By: /s/ Michael C. Crabtree




Title: President & CEO





- 19 -










 







EXHIBIT A




COMPANY OWNED/COMPANY OPERATED





	081	 	Albuquerque, NM
	 
	055	 	Amarillo, TX (West)
	 
	089	 	Ann Arbor, MI
	 
	117	 	Antioch, TN
	 
	001	 	Ashland, VA
	 
	216	 	Baltimore, MD
	 
	151	 	Baltimore South, MD (Jessup)
	 
	067	 	Barkeyville, PA (Harrisville)
	 
	017	 	Baytown, TX
	 
	207	 	Binghampton, NY
	 
	092	 	Bloomington, IL
	 
	212	 	Bloomsburg, PA
	 
	048	 	Bloomsbury, NJ
	 
	167	 	Boise, ID
	 
	003	 	Brookville, PA
	 
	160	 	Buttonwillow, CA
	 
	221	 	Candler, NC
	 
	146	 	Cartersville, GA
	 
	187	 	Cheyenne, WI (Burns)
	 
	030	 	Chicago North, IL
	 
	028	 	Cincinnati S., KY (Walton)
	 
	041	 	Coachella, CA




 









 












	006	 	Columbia, NJ
	 
	156	 	Commerce, GA
	 
	018	 	Concordia, MO
	 
	040	 	Corning, CA
	 
	066	 	Council Bluffs, IA
	 
	150	 	Dallas South, TX
	 
	208	 	Dansville, NY
	 
	011	 	Dayton, OH
	 
	148	 	Denver, CO (East)
	 
	174	 	Denver, CO (West)
	 
	035	 	Effingham, IL
	 
	044	 	Elgin, IL
	 
	019	 	Elkton, MD
	 
	007	 	Eloy, AZ
	 
	093	 	Florence, KY
	 
	157	 	Franklin, TN
	 
	188	 	Ft. Bridger, WY
	 
	209	 	Fultonville, NY
	 
	008	 	Gallup, NM
	 
	010	 	Gary, IN (Griffith)
	 
	193	 	Grand Island West, NE (Alda)
	 
	213	 	Greencastle, PA
	 
	211	 	Greenland, NH
	 
	002	 	Greensboro, NC




Exhibit A - Page 2









 






	215	 	Harborcreek, PA (Erie)
	 
	012	 	Harrisburg, PA
	 
	039	 	Hebron, OH (Columbus E.)
	 
	192	 	Hudson, WI
	 
	149	 	Hurricane, WV
	 
	139	 	Jeffersonville, OH (Nat-East)
	 
	094	 	Kingman, AZ
	 
	029	 	Kingsville, OH
013 Knoxville, TN
	 
	161	 	Lafayette, LA
	 
	219	 	Lake Station, IN
	 
	068	 	Lamar, PA
	 
	014	 	Las Cruces, NM
	 
	108	 	Las Vegas, NV
	 
	015	 	Lodi, OH (Seville)
	 
	024	 	London, OH (Columbus W.)
	 
	045	 	Madison, GA
	 
	050	 	Madison, WI (Deforest)
	 
	179	 	Manning, SC
	 
	178	 	Marianna, FL
	 
	051	 	Matthews, MO
	 
	210	 	Maybrook, NY
	 
	047	 	Meridian, MS
	 
	214	 	Milesburg, PA




Exhibit A - Page 3










 






	181	 	Mill City, NV
	 
	154	 	Milldale, CT (Southington)
	 
	054	 	Mobile, AL
	 
	069	 	Monroe, MI
	 
	043	 	Mount Veron, IL
	 
	034	 	Nashville, TN
	 
	171	 	New Haven, CT (Branford)
	 
	095	 	North Canton, OH
	 
	052	 	Oak Grove, MO
	 
	090	 	Ogallala, NE
	 
	036	 	Oklahoma City, OK (East)
	 
	059	 	Oklahoma City, OK (Nat)(West)
	 
	026	 	Ontario, CA (East)
	 
	162	 	Ontario, CA (West)
	 
	186	 	Parowan, UT
	 
	218	 	Paulsboro, NJ
	 
	220	 	Porter, IN
	 
	056	 	Portland, OR
	 
	057	 	Redding, CA
	 
	142	 	Richmond, VA (Ashland)
	 
	021	 	Roanoke, VA
	 
	049	 	Rockwall, TX
	 
	190	 	Rogers, MN
	 
	060	 	Salt Lake City, UT (Tooele)
	 
	147	 	San Antonio, TX




Exhibit A - Page 4










 






	163	 	Santa Nella, CA
	 
	023	 	Santa Rose, NM
	 
	177	 	Savannah, GA (Richmond Hill)
	 
	116	 	Sawyer, MI
	 
	152	 	Sayre, OK
	 
	176	 	Seattle, WA (East)
	 
	065	 	Seymour, IN
	 
	180	 	Slidell, AL
	 
	172	 	Sparks, NV
	 
	025	 	Spartanburg, SC (Duncan)
	 
	175	 	St. Louis MO (West)
	 
	046	 	Tallulah, LA
	 
	158	 	Tampa, FL
	 
	087	 	Toledo, OH
	 
	183	 	Troutdale, OR
	 
	016	 	Tuscaloosa, AL (Cottondale)
	 
	033	 	West Memphis, AR (Earle)
	 
	032	 	Wheeling, WV (Valley Grove)
	 
	173	 	Whitestown, IN
	 
	053	 	Wildwood, FL
	 
	022	 	Willington, CT
	 
	601	 	Woodstock, CN
	 
	143	 	Wytheville, VA
	 
	058	 	Youngstown, OH




Exhibit A - Page 5










 











EXHIBIT B




Revenue and Profit Allocation Schedule




	 	 	 	 	 	 	 	 	 
	 	 	DESCRIPTION OF
SERVICE OR SALE	 	LANDLORD’S PORTION
	 

	 	 	 	 	 	 	 	 
	A.	 	Basic
Services — [***] Based Programs	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	1.	 	 	[***] from the retail
sale of IdleAire
service cards through
the travel center
cashiers.
	 	[***] retail price of
IdleAire service cards
shipped and invoiced
to the travel center
each month if
utilization is below
[***] at the travel
center, [***]of the
IdleAire service cards
shipped and invoiced
to the travel center
each month from dollar
one if utilization is
equal to or greater
than [***] at the
travel center.
	 

	 	 	 	 	 	 	 	 
	 

	 	 	2.	 	 	[***] from usage of the
IdleAire System.
	 	[***] generated from
usage of IdleAire
System Services per
location each month if
utilization is below
[***] at the travel
center, [***] of [***]
generated from usage
of IdleAire System
Services each month
per location from
dollar one if
utilization is equal
to or greater than
[***] at the travel
center.
	 

	 	 	 	 	 	 	 	 
	B.

	 	Auxiliary
Services — [***] or [***] Based
Programs
	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	1.	 	 	[***] or [***] derived
from the sale of long
distance phone time.
	 	Greater of [***] of
[***] or [***] of
[***]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	2.	 	 	[***] or [***] derived
from Premium Movie
Sales.
	 	Greater of [***] of
[***] or [***] of
[***]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	3.	 	 	[***] or [***] derived
from all other
auxiliary services.
	 	Greater of [***] of
[***] or [***] of
[***]






[***]




[***]




[***]



 
 



*** Indicates where material is omitted pursuant to a confidential treatment request and filed
separately with the Commission.




 









 





Exhibit C




[Form of Monthly Report]





 









 








EXHIBIT D




FRANCHISE
LOCATIONS





	100	 	Atlanta South, GA (Jackson)
	 
	125	 	Baldwin, FL (Jacksonville)
	 
	102	 	Clayton, IN
	 
	103	 	Corfu, NY (Buffalo)
	 
	140	 	Denmark, TN (Jackson)
	 
	104	 	Denton, TX
	 
	107	 	Knoxville, TN
	 
	128	 	Lake Park, GA
	 
	111	 	Montgomery, AL
	 
	133	 	Saginaw, MI
	 
	126	 	St. Augustine, FL (Jacksonville)
	 
	113	 	Sweetwater, TX
	 
	115	 	Vero Beach, FL
	 
	134	 	Albert Lea, MN
	 
	070	 	(Beto Junction) Lebo, KS
	 
	075	 	Breezewood, PA
	 
	076	 	Edinburg, TX
	 
	078	 	(Eugene) Coburg, OR
	 
	071	 	Janesville, WI
	 
	074	 	Kenly, NC
	 
	072	 	Mt. Vernon, MO
	 
	137	 	Strafford, MO
	 
	077	 	Walcott, IA








 









 








EXHIBIT E





	I.	 	BASIC SERVICES: [Exclusive as to wired solution only]





     In-cab Heating and air conditioning



     In-cab AC (power and charging system)



     Shore power (external power and charging system) delivered from the Unit



     In-cab Basic Internet access



     In-cab Basic television



     In-cab Phone access



     In-cab Customer support for Basic Services



     In-cab Computer access




	II.	 	AUXILIARY SERVICES: [Non-Exclusive]






Prepaid IdleAire service cards (not convertible to prepaid calling cards or any
other service)




Refrigerated unit power delivered from the Unit




In-cab Computer services helpdesk




In-cab upgraded customer support services (direct dial though phone network to
the fleet or company, wake-up calls, electronic and conventional messaging,
secretarial service, tech support)




Security surveillance services delivered from the Unit




In-cab advertising on computer




In-cab e-commerce sales on computer




In-cab premium television




In-cab local and long-distance telephone services




In-cab video-on-demand/pay per view televisions




In-cab email accounts on computer



 









 






In-cab banking services through computer




In-truck ECM/ECU engine date retrieval




In-truck DC power and charging system




In-cab high speed Internet with Ethernet or wireless access




	III.	 	PRODUCTS:






Window Adaptors




12 ft coax cable




Ethernet Cable (RJ 45)




Telephone Cell Style (conair model)




Remote Control




Wired Keyboard without trackball




Zonet network card



Keyboard wireless w/mouse





Wireless starter kits





IdleAire Debit Member Cards





Complete kit includes (tote box,12 ft coax cable, conair phone, wireless keyboard )





Exhibit E - Page 2










 








EXHIBIT F




ESCROW AGREEMENT




     This Escrow Agreement is made and entered into this ___day of                     , 2004, by and among
IdleAire Technologies Corporation (“IdleAire”), TA Operating (“TA”) and                                         
(“Escrow Agreement”).



WITNESSETH:




     WHEREAS, pursuant to a Lease and Installation Agreement and addendum to the Lease and
Installation Agreement dated the ___day of                     , 2004 (collectively the “Lease
Agreement”) between IdleAire and TA, IdleAire has agreed to escrow the sum of $250 for each Unit of
IdleAire’s advanced travel center electrification center installed by IdleAire at TA travel
centers, up to a total of $2,000,000 (exclusive of interest), as set forth herein; and



     WHEREAS, Escrow Agent is willing to serve as the escrow agent required by the Lease Agreement;
and



     WHEREAS, by its signature hereinbelow, TA consents to the appointment of Escrow Agent and to
the terms and conditions hereinafter set forth.



     NOW, THEREFORE, for and in consideration of the premises, and other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly acknowledged, IdleAire and
Escrow Agent agree as follows:



SECTION 1. APPOINTMENT OF ESCROW AGENT.




     IdleAire hereby appoints Escrow Agent as the escrow agent under this Agreement on the terms
and conditions set forth herein. Escrow Agent hereby accepts its appointment as escrow agent and
agrees to carry out the duties and responsibilities set forth herein.



 









 





SECTION 2. THE ESCROW FUND OR ACCOUNT.




     (a) From time to time IdleAire shall tender to Escrow Agent the funds IdleAire is required to
escrow pursuant to the Lease Agreement for deposit in a segregated account maintained by Escrow
Account for the benefit of IdleAire and TA. All funds received by Escrow Agent pursuant to this
Agreement shall be held, invested and disbursed in accordance with the terms and conditions of this
Agreement. A copy of the Lease Agreement is attached as Exhibit 1.



     (b) The interest or other appreciation on the funds deposited with Escrow Agent pursuant to
this Agreement shall be added to the Escrow Account and become part of the Escrow Account as
earned.



     (c) Funds may be released or disbursed by Escrow Agent from the Escrow Account only under the
circumstances set forth in Section 4 hereof.



SECTION 3. INVESTMENT OF FUNDS BY ESCROW AGENT.




     Escrow Agent shall invest and reinvest all amounts from time to time credited to the Escrow
Account in (a) Escrow Agent’s U.S. Treasury money market fund; (b) direct obligations of, or
obligations of the principal and interest on which are unconditionally guaranteed by, the United
States of America; (c) repurchase agreements fully collateralized by securities described in clause
(b) above; (d) money market accounts maturing within 30 days of the acquisition thereof and issued
by a bank or trust company organized under the laws of the United States of America or of any of
the 50 states thereof (a “United States Bank”) and having combined capital, surplus and
undistributed profits in excess of $50,000,000; (e) demand deposits with any United States Bank
having combined capital, surplus and undistributed profits in excess of $50,000,000; or (f) as
directed in joint written instructions received from IdleAire and TA. Escrow Agent



Exhibit F - Page 2










 




shall provide quarterly statements to both IdleAire and TA showing account balance, investment
holdings, income, expenses and any disbursements occurring during the quarter.




SECTION 4. RELEASE OF FUNDS FROM THE ESCROW ACCOUNT.




     (a) Pursuant to Section 3. of the Addendum to Lease and Installation Agreement either IdleAire
or TA may give written instructions to Escrow Agent to disburse all or some portion of the Escrow
Account (a “Disbursement Notice”).



          (i) Disbursement Requested solely by IdleAire. IdleAire may submit a Disbursement
Notice to Escrow Agent at any time after 120 days following the date of expiration or termination
of the Lease Agreement for any reason other than the default or material breach of IdleAire,
provided that prior to submitting such Disbursement Notice IdleAire has completed the removal of
the IdleAire equipment from all of TA’s travel centers in accordance with the terms of the Lease
Agreement.




          (ii) Disbursement Requested solely by TA. TA may submit a Disbursement Notice only if
IdleAire defaults under the Lease Agreement by (a) failing to remove IdleAire equipment from a TA
travel center upon the expiration or termination of the Lease Agreement as to that travel center in
accordance with the terms of the Lease Agreement; or (b) defaulting in its obligation to pay lease
consideration to TA and failing to cure such default under the terms of the Lease Agreement; or (c)
at a time when IdleAire is the subject of a voluntary or involuntary petition in bankruptcy. Such
Disbursement Notice may only be for the actual costs incurred by TA for removal of the IdleAire
units and restoration of the parking lots covered by the TA Disbursement Notice.




Exhibit F - Page 3










 








          (iii) Joint Disbursement Request. At any time the parties may jointly submit a
Disbursement Notice with which Escrow Agent shall comply without need for complying with the
provisions herein relating to objections.




     (b) Within 72 hours of receiving a Disbursement Notice, Escrow Agent shall forward a copy
thereof to the other party in accordance with the Notice provisions set forth below. If Escrow
Agent has not received an objection to the Disbursement Notice within 15 days following Escrow
Agents forwarding the copy thereof to the other party, Escrow Agent shall promptly disburse from
the principal amount of the Escrow Account the amount requested in the Disbursement Notice to the
requesting party. If, within such 15-day period, Escrow Agent receives an objection from the
non-requesting party to the Disbursement Notice, Escrow Agent shall disburse to the requesting
party only such amount of the Escrow Account to which the non-requesting party has consented.



     (c) If the non-requesting party sends an objection to the Disbursement Notice, IdleAire and TA
shall use their best efforts to resolve such disputed claim. If the parties are unable to resolve
the disputed claim within thirty (30) days after the date the objection is received by the Escrow
Agent, then such disputed claim shall be settled solely and exclusively by arbitration to be held
in Atlanta, Georgia, in accordance with the then existing rules of the American Arbitration
Association. IdleAire and TA 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. The
Escrow Agent shall abide by, and disburse the Escrow Account in accordance with, the arbitration
ruling.



Exhibit F - Page 4










 





SECTION 5. DUTIES AND LIABILITIES OF ESCROW AGENT.




     The Escrow Agent shall have no duty or obligation hereunder other than to take such specific
actions as are required of it from time to time by the provisions of this Agreement, and it shall
incur no liability hereunder or in connection herewith for anything whatsoever other than any
liability resulting from its own gross negligence or willful misconduct or unlawful acts or
omissions. The only duties and responsibilities of the Escrow Agent shall be the duties and
obligations specifically set forth in this Agreement. The Escrow Agent has no duty to perform any
calculations with respect to the proper amount to be deposited by IdleAire under the Lease
Agreement, or to ensure that such amounts are deposited with Escrow Agent.



SECTION 6. INDEMNIFICATION OF ESCROW AGENT.




     IdleAire shall indemnify, hold harmless and defend the Escrow Agent from and against any and
all losses, claims, liabilities and reasonable expenses, including reasonable attorney’s fees,
which it may suffer or incur in connection with the performance of its duties and obligations under
this Agreement and including any action taken under Section 4 hereof, except for those losses,
claims, liabilities and expenses resulting solely and directly from it own gross negligence,
willful misconduct, or unlawful act or omission. The Escrow Agent may seek the advice of counsel
at any time and such reasonable attorney fees shall be in addition to the administrative fees
charged by Escrow Agent for serving as Escrow Agent and the Escrow Agent may charge such costs
against the interest which accrues on the Escrow Account if not otherwise paid by IdleAire, but the
principal in the Escrow Account shall not be charged, used as an offset or otherwise encumbered by
the Escrow Agent or IdleAire.



Exhibit F - Page 5










 





SECTION 7. RESIGNATION OR REMOVAL OF ESCROW AGENT.




     Escrow Agent may resign at any time by giving IdleAire and TA 30 days’ prior written notice of
such intention. IdleAire and TA may jointly remove the Escrow Agent, as such, by giving the Escrow
Agent 30 days’ prior written notice of such removal. Upon the effective date of its resignation or
removal, the Escrow Agent will deliver the Escrow Funds held hereunder only to a successor escrow
agent named in the joint written instructions of IdleAire and TA. After the effective date of its
resignation or removal, the Escrow Agent shall have no duty with respect to the Escrow Funds except
to hold such property in safekeeping and deliver the Escrow Funds to its successor or as directed
by joint instructions from IdleAire and TA. If no successor escrow agent has been appointed by such
joint instructions within 60 days from the date such notice of resignation or removal has been
given, Escrow Agent shall be entitled to tender the Escrow Funds into the registry or custody of
any court of competent jurisdiction by giving notice of such action to IdleAire and TA.



SECTION 8. ESCROW AGENT FEES AND EXPENSES.




     IdleAire shall pay the Escrow Agent its reasonable fees and expenses, including all reasonable
expenses, charges, counsel fees and other disbursements incurred by it or by its attorneys, agents
and employees in the performance of its duties and obligation under this Agreement. If not paid by
IdleAire within 30 days of when due, fees costs and expenses payable to Escrow Agent hereunder may
be paid by Escrow Agent from interest earned on the Escrow Fund, but the principal of the Escrow
Funds shall not be charged or offset against the Escrow Fund.



Exhibit F - Page 6










 





SECTION 9. INTENDED BENEFICIARIES; SUCCESSORS.




     TA and its successors and assigns are the intended beneficiaries of this Agreement. No other
persons or entities are intended beneficiaries of this Agreement, and only IdleAire and TA, and its
successors and assigns, shall be entitled to enforce the terms of this Agreement.



SECTION 10. NOTICES.




     (a) Any notice required or permitted to be given by this Agreement shall be in writing, with a
copy provided simultaneously to TA, and shall be deemed to have been received (a) immediately if
sent by facsimile transmission (with a confirming copy sent the same Business Day by registered or
certified mail), or by hand delivery (with signed return receipt), or (b) the next Business Day if
sent by nationally recognized overnight courier, in any case at the following addresses, or such
other addresses as any party may, by Notice, designate:



If to Escrow Agent:




     If to IdleAire: IdleAire Technologies Corporation




410 North Cedar Bluff Road, Suite 200

Knoxville, Tennessee 37923

Attention: James H. Price, General Counsel


With a Copy to Chief Operating Officer

Fax No:





      If to TA: TA Operating Corporation





24601 Center Ridge Road, Suite 200

Westlake, Ohio 44145

Attn: Vice President — Retail Marketing

Fax No:




With a required copy to the same address


Attn: General Counsel.

Fax No: 440-808-4310



Exhibit F - Page 7










 





     (b) If either party changes its address for notices required by this Agreement, that entity
shall immediately notify the other parties in writing of the change of address. Written notice
required by this Agreement shall be sufficient and adequate if sent to the last know address of a
party in the manner provided under this Section.



SECTION 11. RESOLUTION OF DISPUTES.




     In the event of any disagreement resulting in adverse claims or demands being made on Escrow
Agent in connection herewith, the Escrow Agent may, at its option, refuse to comply with any claims
or demands on it, or refuse to take any other action hereunder, so long as such disagreement
continues, and in any such event, the Escrow Agent shall not be or become liable in any way or to
any person or entity for its failure or refusal to act, and the Escrow Agent shall be entitled to
continue to so refrain from acting until (i) the rights of all parties have been fully and finally
adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been adjudged
and all doubt resolved by agreement among all of the interested parties, and the Escrow Agent shall
have been notified thereof in writing signed by all such persons. In addition to the foregoing,
the Escrow Agent is hereby authorized in the event of any such disagreement, to petition any court
of competent jurisdiction for instructions or to interplead the Escrow Fund into such court.
IdleAire and TA agree that upon final adjudication on such petition or interpleader action, Escrow
Agent will be relieved of further liability.



SECTION 12. MISCELLANEOUS PROVISIONS.




     Governing Law. This Agreement shall be construed in accordance with and governed by the laws
of the State of Tennessee.



     (a) Severability. If any provision of this Agreement shall under any circumstances be deemed
invalid or inoperative, this Agreement shall be construed with the invalid or inoperative



Exhibit F - Page 8










 




provisions deleted and the rights and obligations of the parties shall be construed and
enforced accordingly.




     (c) Amendments. This Agreement may be amended only by a written instrument executed by
IdleAire and Escrow Agent with the written approval of TA indicated thereon. The waiver by any
party, or TA, of any breach of this Agreement shall not be deemed to be or construed as a waiver of
any other breach, whether prior, subsequent or contemporaneous, of this Agreement, nor shall such
waiver be deemed to be or construed as a waiver by any other party.



     (d) Counterparts. This Agreement may be signed in any number of counterparts, each of which
shall be an original and one in the same instrument.



     (e) Captions. The captions herein are included for convenience of reference only and shall be
ignored in the construction and interpretation hereof.



Exhibit F - Page 9










 




IN WITNESS WHEREOF, this Agreement has been executed by the parties on the day and date first above
written.




	 	 	 	 	 
	IDLEAIRE TECHNOLOGIES CORPORATION	 	[ESCROW AGENT]
	 
	 	 	 	 
	By:

	 	 	 	By:
	 

	 	 	 	 
	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Its:

	 	 	 	Its:
	 

	 	 	 	 
	 
	 	 	 	 
	TA OPERATING CORPORATION	 	[ESCROW AGENT]
	 
	 	 	 	 
	By:

	 	 	 	By:
	 

	 	 	 	 
	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Its:

	 	 	 	Its:
	 

	 	 	 	 






Exhibit F - Page 10