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EXHIBIT 10.7
FORM OF ▇▇▇▇ OF CONTRIBUTION,
ASSIGNMENT AND ASSUMPTION AGREEMENT
Between
TSGL HOLDING, INC.
("Assignor")
and
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ LP
("Assignee")
Dated ________ __, 2000
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TABLE OF CONTENTS
Page
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1. Definitions..............................................................1
2. Contribution of Assets...................................................2
3. Third Party Consents.....................................................3
4. Transferred Obligations..................................................3
5. Excluded Obligations.....................................................3
6. Power of Attorney........................................................4
7. Further Assurances.......................................................4
8. Disclaimer of Warranties and Liabilities.................................4
9. Effectiveness of Agreement...............................................5
10. Submission to Jurisdiction..............................................6
11. Entire Agreement; Survival..............................................6
12. Amendments; Waiver......................................................6
13. Binding Nature; Assignment..............................................6
14. Third Party Beneficiaries...............................................6
15. Approvals and Similar Actions...........................................6
16. Notices.................................................................7
17. Construction Rules; Counterparts........................................7
18. Governing Law...........................................................7
19. Enforceability; Severability............................................8
20. Headings................................................................8
Appendix A Glossary
Schedule 1 Intellectual Property
Schedule 2 Prepaid Items
Schedule 3 Contracts
Schedule 4 Permits and Governmental Approvals
Schedule 5 Transferred Obligations
Schedule 6 Excluded Obligations
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▇▇▇▇ OF CONTRIBUTION, ASSIGNMENT AND ASSUMPTION AGREEMENT
▇▇▇▇ OF CONTRIBUTION, ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of
_____ __, 2000, between TSGL HOLDING, INC., a Delaware corporation (together
with its successors and assigns, "Assignor"), and ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ LP, a Delaware
limited partnership (together with its successors and assigns, "Assignee").
W I T N E S S E T H:
WHEREAS, Assignor owns certain assets used in the business of offering
real time travel related reservations, services and content directly to
consumers through a travel related Internet site generally available to all
Internet users (the "Travelocity Business"); and
WHEREAS, on September 30, 1999, Assignor, Travelocity Holdings, Inc., a
Delaware corporation ("Holdings"), and Sabre, Inc. ("Sabre") entered into an
Agreement of Limited Partnership of Assignee (the "Original Partnership
Agreement") and formed Assignee as a limited partnership by filing a certificate
of limited partnership with the Secretary of State of Delaware;
WHEREAS, on October __, 1999, Sabre, Holdings, ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
("▇▇▇▇▇▇▇▇▇▇▇.▇▇▇") and Preview Travel, Inc., a Delaware corporation ("Preview")
entered into an Agreement and Plan of Merger, which provided for, among other
things, (i) the merger of Preview into ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "Merger"), (ii) the
transfer of the Travelocity Business to Assignee to be effected by Sabre or its
subsidiaries or affiliates immediately prior to the effective time of the
Merger, and (iii) the transfer of the Preview business to Assignee to be
effected by the surviving corporation immediately after the effective time of
the Merger;
WHEREAS, as provided in the Merger Agreement, Assignor wishes to
contribute to Assignee certain assets and contractual rights and to transfer
certain liabilities and obligations, all of which are related to the Travelocity
Business, and Assignee wishes to acquire such assets and contractual rights and
to assume such liabilities and obligations, all as more particularly set forth
herein;
WHEREAS, simultaneously with the execution of this Agreement, the
Original Partnership Agreement is being amended to reflect the capital
contributions made pursuant to this Agreement and the issuance of partnership
units in respect of such contributions.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. Whenever used in this Agreement, the capitalized terms
listed below shall have the following meanings:
"AGREEMENT" shall mean this ▇▇▇▇ of Contribution, Assignment and
Assumption Agreement, dated as of _________ ___, 2000, between Assignor and
Assignee.
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"ASSIGNEE" shall have the meaning specified in the preamble to this
Agreement.
"ASSIGNMENT EFFECTIVE DATE" shall mean ______ __, 2000.
"ASSIGNOR" shall have the meaning specified in the preamble to this
Agreement.
"CONTRACTS" shall have the meaning specified in Section 2(c).
"CONTRIBUTED ASSETS" shall mean the assets, properties and rights
conveyed pursuant to Section 2.
"DISPUTE" shall mean any dispute, claim or controversy of any kind or
nature arising under, in connection with or related in any way to, this
Agreement and any related agreements between the Parties including, without
limitation, any future question as to whether a particular asset was a
Contributed Asset under this Agreement.
"EXCLUDED OBLIGATIONS" shall mean the obligations and liabilities
listed on Schedule 6 attached hereto.
"PARTY" shall mean each of the signatories to this Agreement and their
successors and permitted assigns.
"TRANSFERRED OBLIGATIONS" shall have the meaning specified in
Section 4.
"TRAVELOCITY BUSINESS" shall have the meaning specified in the recitals
to this Agreement.
"UNITS" shall mean partnership units in the Assignee.
Capitalized terms used in this Agreement but not defined above have the meanings
ascribed thereto in the Glossary attached as APPENDIX A.
2. CONTRIBUTION OF ASSETS. Except as otherwise set forth in Section 3,
Assignor, as a contribution to capital and in exchange for the issuance to
Assignor of _____ Units, hereby contributes, grants, conveys, transfers,
assigns, sets over and delivers, as of the Assignment Effective Date, to
Assignee the entire right, title and interest of Assignor in and to all of the
assets owned by Assignor as used primarily in the Travelocity Business and of
the date hereof, including, without limitation, the following assets, properties
and rights used in and related to the Travelocity Business:
(a) the trademarks (and all associated goodwill, and all related
applications and registrations for the foregoing) that are listed on Schedule 1
attached hereto;
(b) the credits, prepaid expenses, advance payments, security deposits
and prepaid items listed on Schedule 2 attached hereto;
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(c) all rights of Assignor in, to and under, the contracts, agreements,
personal property leases, licenses, purchase orders, sales orders and other
instruments, agreements and arrangements that are listed on Schedule 3 attached
hereto (collectively, the "CONTRACTS") including, without limitation (i) any
right to receive payment for services rendered, or to receive goods or services,
pursuant to the Contracts, and (ii) any right to assert claims and take other
rightful actions in respect of breaches, defaults and other violations of the
Contracts;
(d) to the extent that their transfer is permitted by law, the permits,
licenses, approvals, qualifications, product registrations and other
authorizations of Governmental Authorities that are listed on Schedule 4
attached hereto.
3. THIRD PARTY CONSENTS. Notwithstanding the provisions of Section 2,
this Agreement shall not constitute an assignment or transfer to Assignee of any
interest in, or right or obligation under, any Contract, lease, license or other
agreement, or title to any asset or property, if an assignment or transfer, or
an attempt to make such an assignment or transfer, without the consent of any
party other than Assignor or its Affiliates would constitute a breach or
violation thereof, unless and until such consent has been obtained. Assignor
hereby agrees to use all commercially reasonable efforts to obtain any such
consent, and upon the receipt of such consent, such interest, right or
obligation shall automatically be and be deemed to have been contributed,
transferred and assigned to, or assumed by, Assignee as of the Assignment
Effective Date. Prior to the receipt of such consent, Assignor shall use all
commercially reasonable efforts to give to Assignee all of the economic,
operational and other benefits of such interest or right; provided, however,
that Assignee shall pay or satisfy the corresponding Transferred Obligations
(assuming, for purposes of this proviso, that the asset or property had been
transferred) for the continued enjoyment of such benefit.
4. TRANSFERRED OBLIGATIONS. Except for the Excluded Obligations,
Assignee hereby consents to be bound by the terms of any and all Contracts (to
the same extent as the Assignor was so bound) and assumes and agrees to pay,
satisfy, honor, perform and discharge, as and when due, and (where applicable)
otherwise in accordance with the Contracts, from the Assignment Effective Date,
all liabilities, obligations, debts, contracts and commitments of any kind,
character or description of Assignor primarily relating to, or arising under or
in respect of, the Contributed Assets, whether absolute, accrued, liquidated,
unliquidated, contingent, executory or otherwise arising, whether before or
after the Assignment Effective Date including, without limitation, the
payroll-related liabilities and other obligations set forth on Schedule 5
attached hereto (collectively, the "TRANSFERRED OBLIGATIONS").
5. EXCLUDED OBLIGATIONS. Assignor does not hereby assign, Assignee does
not hereby assume and shall not be responsible for, and the term "Transferred
Obligations" shall not include, the Excluded Obligations set forth on Schedule 6
attached hereto.
6. POWER OF ATTORNEY. Assignor hereby constitutes and appoints Assignee
the true and lawful attorney of Assignor with full power of substitution, in the
name of Assignor or otherwise, and on behalf and for the benefit of Assignee, to
demand and receive from time to time any and all Contributed Assets; to give
receipts, releases and acquittances for or in respect of the
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same or any part thereof; to collect, for the account of Assignee, all
receivables and other items transferred to Assignee as provided herein, and to
endorse with the name of Assignor any check received on account of any such
receivables or any other item; from time to time to institute and prosecute in
the name of Assignor (upon written notice to Assignor) or otherwise any and all
proceedings at law, in equity or otherwise, which Assignee may deem proper to
collect, assert or enforce any claim, right, title, debt or account hereby
assigned and transferred or intended so to be; and to take any action otherwise
necessary or desirable to effect the transfer to Assignee of full legal title in
and to, and beneficial ownership of, the Contributed Assets. Assignor hereby
declares that the foregoing powers are coupled with an interest and shall not be
revocable by Assignor in any manner or for any reason.
7. FURTHER ASSURANCES. At any time and from time to time after the
Assignment Effective Date:
(a) at the request of Assignee and without further consideration,
Assignor will execute and deliver such further assignments,
instruments of transfer, bills of sale, bills of contribution,
powers of attorney and other conveyances, and will perform all
such other acts, as may be necessary or desirable to vest in
Assignee title to and enjoyment of the Contributed Assets.
Assignor will transfer and deliver to the account of Assignee
any cash or other property that Assignor may receive in
respect of any Contributed Asset; and
(b) at the request of Assignor and without further consideration,
Assignee will execute and deliver such further assignments,
instruments of transfer, bills of sale, bills of contribution,
powers of attorney and other conveyances, and will perform all
such other acts, as may be necessary or desirable to vest in
Assignee title to and enjoyment of the Contributed Assets and
to effectuate the assumption of the Transferred Obligations.
8. DISCLAIMER OF WARRANTIES AND LIABILITIES
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, THE CONTRIBUTED ASSETS ARE BEING CONTRIBUTED, ASSIGNED AND
TRANSFERRED BY ASSIGNOR TO ASSIGNEE ON AN "AS IS" BASIS AS OF THE
ASSIGNMENT EFFECTIVE DATE. TO THE FULLEST EXTENT PERMITTED BY LAW,
ASSIGNOR EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO THE CONDITION, QUALITY, UTILITY OR VALUE OF ANY AND ALL OF
THE CONTRIBUTED ASSETS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION:
(i) ANY STATUTORY OR IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE; AND
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(ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING,
COURSE OF PERFORMANCE OR USAGE OF TRADE.
(b) ASSIGNOR WILL NOT BE LIABLE TO ASSIGNEE FOR DAMAGES, AND ASSIGNEE
HEREBY RELEASES ASSIGNOR FROM ANY LIABILITY FOR DAMAGES, ARISING UNDER
ANY THEORIES OF LEGAL LIABILITY, TO THE FULLEST EXTENT THAT ASSIGNEE
MAY LEGALLY AGREE TO RELEASE ASSIGNOR FROM LIABILITY FOR SUCH DAMAGES;
PROVIDED, HOWEVER, THAT ASSIGNEE DOES NOT RELEASE ASSIGNOR FROM ANY
LIABILITY ARISING SOLELY FROM THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF ASSIGNOR (UNLESS ATTRIBUTED OR IMPUTED TO ASSIGNOR BY
REASON OF ANY ACT OR OMISSION OF ASSIGNEE WHETHER AS AGENT FOR ASSIGNOR
OR OTHERWISE). "THEORIES OF LEGAL LIABILITY" AS USED IN THIS SECTION
8(B) INCLUDE, BUT ARE NOT LIMITED TO, CONTRACT, TORT, STRICT LIABILITY,
BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF IMPLIED COVENANT AND
THE SOLE OR CONCURRENT NEGLIGENCE OF ASSIGNOR OR ANY PERSON WHOSE
NEGLIGENCE, DUTIES, ACTIONS OR LIABILITIES MAY BE ATTRIBUTED OR IMPUTED
TO ASSIGNOR.
(c) No Consequential or Incidental Damages. ASSIGNOR SHALL HAVE NO
OBLIGATION OR LIABILITY UNDER ANY "THEORIES OF LEGAL LIABILITY" (AS
SUCH PHRASE IS USED IN SECTION 8(b)) FOR LOSS OF USE, REVENUE OR PROFIT
OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO
ANY DEFECT IN, OR USE OR OWNERSHIP OF, ANY CONTRIBUTED ASSET.
(d) As used in this Section 8, the term "Assignor" shall include all
directors, officers, stockholders, affiliates, employees, agents,
attorneys and representatives of Assignor.
(e) Full Negotiation by Parties. THE PARTIES ACKNOWLEDGE THAT THIS
SECTION 8 HAS BEEN THE SUBJECT OF FULL DISCUSSION AND NEGOTIATION
BETWEEN THE PARTIES AND THAT THE PROVISIONS OF THIS AGREEMENT WERE
ARRIVED AT IN CONSIDERATION OF THE PROVISIONS AND EFFECTS OF THIS
SECTION 8, INCLUDING THE DISCLAIMERS AND RELEASES SET FORTH HEREIN.
9. EFFECTIVENESS OF AGREEMENT. This Agreement shall not be effective
and shall not legally bind the parties until the Assignment Effective Date.
10. SUBMISSION TO JURISDICTION. As part of the consideration for value
received pursuant to this Agreement, and regardless of the location of any
present or future domicile or principal place of business of either Party, each
Party hereby irrevocably consents in advance to the personal jurisdiction of the
District Court of Tarrant County, Texas, Fort Worth Division or the United
States District Court for the Northern District of Texas, Fort Worth Division,
to hear
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and determine any Disputes brought against such party by the other party and
pertaining to this Agreement or to any matter relating to or arising out of this
Agreement.
11. ENTIRE AGREEMENT; SURVIVAL. This Agreement (including all
Schedules, Exhibits, Appendices, and other documents attached hereto, each of
which is incorporated into this Agreement by this reference) constitutes the
full and complete statement of the agreement of the Parties with respect to the
subject matter hereof and supersedes any previous agreements, understandings or
communications, whether written or oral, relating to such subject matter. Any
provision of this Agreement which contemplates performance or observance
subsequent to any termination or expiration of this Agreement will survive any
termination or expiration of this Agreement and continue in full force and
effect. The disclaimers and releases under Section 8 hereof shall survive
forever.
12. AMENDMENTS; WAIVER. This Agreement may be amended, modified or
supplemented only by a written instrument executed by each Party hereto. Any
terms and conditions varying from this Agreement on any order, invoice or other
notification from either Party are not binding on the other unless specifically
accepted in writing by the other. Unless otherwise expressly provided in this
Agreement, a delay or omission by either Party to exercise any right or power
under this Agreement will not be construed to be a waiver thereof. No waiver of
any breach of any provision of this Agreement will constitute a waiver of any
other prior, concurrent or subsequent breach of the same or any other provision
hereof.
13. BINDING NATURE; ASSIGNMENT. This Agreement will be binding on the
Parties and their successors and permitted assigns. Neither Party may, nor will
it have the power to, assign this Agreement, or any part hereof, without the
prior written consent of the other. Any attempted assignment in violation of
this Agreement shall be null and void ab initio.
14. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely
between, and may be enforced only by, Assignor and Assignee, and this Agreement
will not be deemed to create any rights in any third parties, including any
customers of a Party, or to create any obligations of a Party to any such third
parties.
15. APPROVALS AND SIMILAR ACTIONS. Except as otherwise expressly
provided in this Agreement, if an agreement, approval, acceptance, consent or
similar action is required of either Party or its Affiliates by any provision of
this Agreement, or otherwise to effect the transactions contemplated by this
Agreement, such action will not be unreasonably withheld or delayed. An approval
or consent given by a Party under this Agreement will not relieve the other
Party from responsibility for complying with the requirements of this Agreement,
nor will it be construed as a waiver of any rights under this Agreement, except
as and to the extent otherwise expressly provided in such approval or consent.
16. NOTICES. All notices under this Agreement will be in writing and
will be deemed to have been duly given if delivered personally or by a
nationally recognized courier service, faxed, electronically mailed or mailed by
registered or certified mail, return receipt requested, postage prepaid, to the
Parties as follows:
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If to Assignor:
TSGL Holding Inc.
Attention: General Counsel/Corporate Secretary
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ 4204
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Assignee:
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ LP
Attention: President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Mail Drop 1310
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All notices under this Agreement that are addressed as provided in this Section
16: (a) if delivered personally or by a nationally recognized courier service,
will be deemed given upon delivery, (b) if delivered by facsimile or electronic
mail, will be deemed given when confirmed, and (c) if delivered by mail in the
manner described above, will be deemed given on the fifth (5th) business day
after the day it is deposited in a regular depository of the United States mail.
Either Party from time to time may change its address or designee for
notification purposes by giving the other Party notice of the new address or
designee and the date upon which such change will become effective in the manner
set forth above.
17. CONSTRUCTION RULES; COUNTERPARTS. In performing its obligations
under this Agreement, neither Party will be required to undertake any activity
that would conflict with the requirements of any applicable law, rule,
regulation, interpretation, judgment, order or injunction of any Governmental
Authority. The Parties acknowledge and agree that each has participated in the
drafting of this Agreement and that this Agreement will not be construed in
favor of or against either Party solely on the basis of a Party's drafting or
participation in the drafting of any portion of this Agreement. This Agreement
may be executed in multiple counterparts, each of which will be deemed an
original and all of which taken together will constitute one instrument.
18. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York, without giving
effect to any choice-of-law rules that may require the application of the laws
of another jurisdiction.
19. ENFORCEABILITY; SEVERABILITY. Any provision of this Agreement which
is held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the remaining provisions of this
Agreement. Any such provision shall not invalidate or otherwise render
unenforceable such provision
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in any other jurisdiction. To the extent permitted by applicable law, each party
waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
20. HEADINGS. The section headings herein are for convenience of
reference only, do not constitute part of this Agreement, and shall not be
deemed to limit or otherwise affect any of the provisions hereof.
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IN WITNESS WHEREOF, Assignor and Assignee have duly executed this ▇▇▇▇
of Contribution, Assignment and Assumption Agreement by their authorized
representatives on the date first above written.
ASSIGNOR:
TSGL HOLDING INC., a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Attest:
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ASSIGNEE:
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ LP, a Delaware limited
partnership
By Its General Partner, Travelocity
Holdings, Inc., a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Attest:
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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APPENDIX A
GLOSSARY
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SCHEDULE 1
INTELLECTUAL PROPERTY
See attached.
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SCHEDULE 2
PREPAID ITEMS
See attached.
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SCHEDULE 3
CONTRACTS
See attached.
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SCHEDULE 4
PERMITS AND GOVERNMENTAL APPROVALS
See attached.
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SCHEDULE 5
TRANSFERRED OBLIGATIONS
See attached.
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SCHEDULE 6
EXCLUDED OBLIGATIONS
See attached.
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