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EXHIBIT 10.8
S&S Draft
06/24/97
RIGHTS WAIVER AGREEMENT
dated as of
_____ __, 1997
(this "Agreement")
between
SAIRGROUP, a Swiss corporation having its registered domicile in Zurich,
Switzerland ("SAIRGROUP")
and
GALILEO INTERNATIONAL PARTNERSHIP, a Delaware general partnership whose
principal place of business is in Rosemont, Illinois, or any successor in
interest thereto, including, without limitation, the corporation or limited
liability company formed in connection with its initial public offering
(hereinafter "GALILEO";
each of Galileo and SAirGroup
are referred to herein
as a "PARTY", and Galileo and
SAirGroup are referred to
herein collectively as the "PARTIES")
regarding the waiver of certain rights under the Galileo
International Amended and Restated Partnership Agreement dated
September 16, 1993, in consideration for certain
payments hereunder
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WHEREAS, pursuant to Section 7.10 of the Galileo International Amended
and Restated Partnership Agreement, dated as of September 16, 1993 (the
"Partnership Agreement"), it was agreed that certain Vendor Revenue, as defined
in the Partnership Agreement, would be split in accordance with Exhibit 7.10 to
the Partnership Agreement;
WHEREAS, in consideration for the Initial Payment and the Anniversary
Payments (as such terms are defined below), SAirGroup wishes to waive, on behalf
of itself and of all of its affiliates, all future rights to receive Vendor
Revenue under Section 7.10 of the Partnership Agreement (the "Revenue Receipt
Rights") upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Parties hereby agree as
follows:
ARTICLE I
WAIVER OF REVENUE RECEIPT RIGHTS
SECTION 1.01. Waiver of Revenue Receipt Rights. In consideration of
the Initial Payment and the Anniversary Payments, SAirGroup hereby, on behalf of
itself and of all of its affiliates, waives all future rights to the Revenue
Receipt Rights.
ARTICLE II
CONSIDERATION
SECTION 2.01. Initial Payment. The initial consideration for
SAirGroup's waiver of the Revenue Receipt Rights shall be US$2,600,000 (the
"Initial Payment") which is payable (at SAirGroup's election) either to
SAirGroup or to one of its Affiliates upon execution of this Agreement by the
Parties.
SECTION 2.02. Anniversary Payments. As additional consideration for
the waiver of the Revenue Receipt Rights, on each of the first three
anniversaries hereof, Galileo shall pay to SAirGroup (or to one of its
Affiliates, at SAirGroup's election) the sum of US$6,600,000 (collectively, the
"Anniversary Payments").
ARTICLE III
REPRESENTATIONS AND WARRANTIES
As an inducement to the Parties to enter into this Agreement,
SAirGroup and Galileo represent and warrant to each other as follows;
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SECTION 3.01. Authority. The execution and delivery of this Agreement
by each of SAirGroup and Galileo, the performance by each of them of its
respective obligations hereunder and the consummation by each of them of the
transactions contemplated hereby have been duly authorized by all requisite
corporate action. This Agreement has been duly executed and delivered by each of
SAirGroup and Galileo and (assuming due authorization, execution and delivery by
the other Party) this Agreement constitutes a legal, valid and binding
obligation of each Party enforceable against it in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally or by general principles of
equity.
SECTION 3.02. Governmental Consents and Approvals. The execution,
delivery and performance of this Agreement by the Parties do not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to any governmental authority or any other person.
ARTICLE IV
UNDERTAKING OF SAIRGROUP
SECTION 4.01. Further Action. SAirGroup hereby undertakes to take all
necessary steps and to execute all agreements and documentation necessary to
give effect to the waiver of the Revenue Receipt Rights.
ARTICLE V
VALUE ADDED TAX
SECTION 5.01. Value Added Tax. To the extent any payments to be made
by Galileo to SAirGroup hereunder are subject to value added tax ("VAT"), (i)
such payments shall be deemed to be inclusive of the applicable VAT, and (ii)
Galileo shall use its reasonable efforts to obtain a refund of such VAT in
accordance with applicable law and hereby assigns its right to any such refund
to SAirGroup.
ARTICLE VI
ARBITRATION
SECTION 6.01. Arbitration. (a) Subject to Section 6.01(b), any dispute
arising between the parties hereto involving the subject matters covered by this
Agreement shall be submitted to arbitration under this Section 6.01. Any party
asserting a breach of this Agreement by the other party shall notify the other
party of such alleged breach (a "Dispute Notice") and the parties shall attempt
to resolve such dispute amicably and if they shall fail to resolve it within
thirty (30) days of the date of the Dispute Notice, either party may notify the
other party that it wishes to commence an arbitration proceeding under this
Section 6.01 (an
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"Arbitration Request"). In any arbitration proceeding the party commencing the
arbitration (the "Petitioner") shall include in the Arbitration Request (a) a
statement of the facts constituting the alleged breach or dispute, (b) a written
statement of position ("Statement") regarding the dispute and (c) the name of an
elector designated by it. The Statement shall state the facts and arguments in
support of the position taken by the party submitting such Statement and shall
detail that party's proposed solution and relief sought (if any). Copies of any
Arbitration Request shall be furnished at the same time to the other party
hereto. The party with whom the Petitioner has its dispute (the "Respondent")
shall within five (5) Business Days after the date of the Arbitration Request
designate a second elector by notice to the Petitioner (copies of which shall be
furnished to the other party), but if it shall fail to do so within such period
the Petitioner may designate an elector on Respondent's behalf. The electors
chosen by the Petitioner and the Respondent shall attempt to agree upon an
arbitrator (the "Arbitrator"), but if they are unable to do so within twenty
(20) Business Days after the designation of the second elector, then either
elector thereafter may apply to the American Arbitration Association (the
"Association") for the selection of the Arbitrator in accordance with the
Commercial Arbitration Rules of such Association. The Arbitrator so selected
shall have full power to decide any dispute referred to in this Section 6.01.
The arbitration proceedings shall be conducted in the English language, and the
place of arbitration and the making of the Award (as defined below) shall be
Paris, France. The UNCITRAL rules of commercial arbitration shall apply to any
arbitration commenced pursuant to this Section 6.01, as modified by the
following procedure:
(i) Within five (5) Business Days of the selection of the Arbitrator
(the "Commencement Date"), the Respondent shall deliver its Statement
regarding the dispute to the Arbitrator and to the Petitioner.
(ii) Within fifteen (15) Business Days from the Commencement Date,
each of the Petitioner and Respondent shall deliver to the Arbitrator and
to the other party, a response ("Response") to the other party's Statement
setting forth opposing facts and arguments and limited in length to ten
(10) typed, single spaced pages (excluding any evidentiary exhibits
included therein).
(iii) Within twenty (20) Business Days from the Commencement Date,
each of the Petitioner and the Respondent may deliver to the Arbitrator and
to the other party, a reply to the Response limited to setting forth facts
and arguments in rebuttal to the Statement and Response of the other party
and limited in length to five (5) typed, single spaced pages (excluding any
evidentiary exhibits included therein).
(iv) Within twenty-five (25) Business Days from the Commencement Date,
each of the Petitioner and Respondent shall present an oral summation of
its position to the Arbitrator in the presence of the other party in
accordance with such rules of procedure including, without limitation,
length of presentation and right of cross-
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examination, as the Arbitrator shall determine in writing and deliver to
the parties not less than three (3) Business Days prior to such hearing;
provided, however, that such hearing shall not exceed eight (8) hours in
total and may not be adjourned except for extraordinary circumstances
beyond the control of the parties.
(v) The Arbitrator shall either issue his decision and award ("Award")
or request a further meeting of the parties within fifteen (15) days of the
hearing.
(vi) Any such further meeting of the parties shall take place within
five (5) Business Days of the request therefor and shall be conducted as
determined by the Arbitrator. The Arbitrator shall issue his Award no later
than fifteen (15) days after any such further meeting of the parties.
(vii) The Award shall be in writing and shall be limited to a decision
either completely in favor of Petitioner's request for relief or completely
in favor of Respondent's request for relief. The Award shall be final and
binding upon the parties hereto and judgment may be entered thereon in any
court of competent jurisdiction and the costs and expenses of such
arbitration (and of enforcing any Award), including attorneys' fees, shall
be borne by the party losing such arbitration.
(b) This Section 6.01 shall in no way affect the right of any party to
seek such interim relief, and only such relief, as may be required to maintain
the status quo in aid of the arbitration in any court of competent jurisdiction.
(c) For purposes of this Section 6.01, the term "Business Day" means
any day that is not a Saturday, a Sunday or other day on which banks are
required or authorized by law to be closed in Zurich, Switzerland.
ARTICLE VII
GOVERNING LAW
SECTION 7.01. Governing Law. This Agreement shall be governed by the
laws of Switzerland (disregarding conflict of law rules and the Vienna (United
Nations) Convention on the International Sale of Goods).
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
GALILEO INTERNATIONAL PARTNERSHIP
By:_____________________________________
Name:
Title:
SAIRGROUP
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
