CONFIDENTIAL
THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS AGREEMENT WITH "[TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]."
ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
SABRE INC.
AND
XXXXXXXXXXX.XXX LP
MARCH 7, 2000
CONFIDENTIAL
THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS AGREEMENT WITH "[TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]."
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (this "Agreement"), dated as of
March 7, 2000 (the "Effective Date"), is between XXXXXXXXXXX.XXX LP, a
Delaware limited partnership ("TCY"), and SABRE INC., a Delaware corporation
("Sabre"). Sabre and TCY may each be referred to as a "Party" or collectively
as the "Parties."
BACKGROUND
WHEREAS, in order to support TCY's ongoing business operations, TCY has
requested that Sabre provide certain administrative services to TCY; and
WHEREAS, on the terms and subject to the conditions described in this
Agreement, Sabre is willing to provide such services to TCY.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the adequacy of which is
hereby acknowledged, the Parties agree as follows:
ARTICLE I. RELATIONSHIP MANAGEMENT
1.1 DESIGNATION. TCY designates its Chief Financial Officer as TCY's
Representative, and Sabre designates its Vice President/Controller as
Sabre's Representative, upon and after the Effective Date until changed by
the designating Party. A Party may change its Representative by Notice to
the other Party. A Party may rely on and deal with the Person who is
designated as the other Party's Representative until Notice of change is
given by the other Party.
1.2 REPRESENTATIVES' AUTHORITY. Each Party has authorized its Representative
to conduct discussions and negotiations, make and communicate decisions,
frame and pose questions or issues, and resolve Disputes on behalf of that
Party relating to this Agreement. Though one Party's employees or agents
other than its Representative may also take actions of the kinds described
in the preceding sentence with the other Party's employees or agents other
than its Representative, matters that require more formal discussions or
negotiations between the Parties shall be addressed through and by the
Representatives. Each Party and its Representative are entitled to rely
on the actions and decisions of the other Party's Representative relating
to this Agreement.
ARTICLE II. SERVICES
2.1 SERVICES. Sabre shall render, and TCY shall pay for, the Mandatory
Services and, to the extent not discontinued in accordance with this
Agreement, the Optional Services during the effectiveness of this
Agreement. The Services are described on the Schedules, which are an
integral part of this Agreement. The Services described in Schedule I and
II are, unless otherwise indicated on such Schedules, Mandatory Services;
the Services described on the other Schedules are Optional Services.
2.2 ADDING OPTIONAL SERVICES. At least [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] prior to the beginning of each Sabre fiscal year, TCY may
request in writing that Sabre perform any of the services listed on the
attached EXHIBIT C as Optional Services and with respect to which
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the Parties have reached an agreement regarding the nature and scope of
such additional Optional Services and the period of time during which such
additional Optional Services will be provided. Such agreement with
respect to any additional Optional Services will be set forth in a written
agreement which will contain the following information, as applicable: (a)
a reference to this Agreement, which reference will be deemed to
incorporate all of the provisions of this Agreement; (b) the date as of
which the provisions of the agreement will become effective and, if
applicable, the term or period of time during which the services or
resources referenced therein will be provided; (c) a description of the
services or resources to be provided by Sabre pursuant to the agreement;
(d) a description of TCY's responsibilities relating to the agreement; (e)
the monthly amounts payable for the Optional Service provided, determined
in a manner consistent with the calculations made pursuant to ARTICLE 4 of
this Agreement; and (f) any additional provisions that are not otherwise
set forth in this Agreement or that are exceptions to the provisions set
forth in this Agreement.
2.3 RECLASSIFICATION OF MANDATORY SERVICES. A Mandatory Service may be
reclassified as an Optional Service upon notification of TCY of Sabre's
determination that Sabre no longer bears, and is not subject to, the
legal, contractual, and tax-related risks and obligations which made
necessary or appropriate Sabre's provision of the Mandatory Services to
TCY.
2.4 MANNER AND PLACE OF PERFORMANCE. Sabre has full discretion about how and
where to render each Service as that Service is so described. Sabre and
the TCY Companies shall afford access to their respective premises as
necessary or reasonably appropriate to permit a Service or Task to be
rendered.
2.5 RECIPIENTS OF SERVICES. The Services shall be rendered solely to, or for
the direct benefit of, TCY and the TCY Companies. Neither TCY nor any TCY
Company may assign, license, or otherwise transfer or provide, whether for
or without consideration, any right to any Service, in whole or in part,
to any Person other than TCY or any TCY Company; provided, however, that
Sabre shall not be required to provide any Services to or for the benefit
of a TCY Company unless TCY has Notified Sabre that TCY has acquired
Control over the TCY Company and Sabre and TCY have negotiated in good
faith, and executed, a supplement to this Agreement for the purpose of
modifying the Services, and the Price pertaining to Services, with respect
to such TCY Company.
2.6 SERVICE SUBCONTRACTS.
(a) Sabre may, without any consent or approval of TCY,
(i) Subcontract any Service, in whole or in part, to any Person,
including any Affiliate of Sabre,
(ii) amend any Service Subcontract, or
(iii) cease to Subcontract any Service, in whole or in part.
Sabre shall provide reasonable notice to TCY of any material changes
in Service Subcontracts made after the Effective Date.
(b) Sabre shall remain responsible for the rendering to TCY of any
Service that is Subcontracted, in whole or in part. Also, except as
described in SECTION 11.4(b), Sabre shall be solely responsible for
its obligations to the Subcontractor (including any applicable
Subcontract Termination Penalty) under each Service Subcontract.
(c) If Sabre has subcontracted a Service to AA, and AA changes the scope
or nature of any Service or Task that it provides to Sabre under the
relevant Services Subcontract, then, following reasonable notice to
TCY, Sabre may make a corresponding change in the scope or nature of
the affected Service or Task.
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2.7 INFORMATION REGARDING SERVICES. Each Party shall make available to the
other Party any information required or reasonably requested by that other
Party regarding the performance of any Service and shall be responsible
for timely providing that information and for the accuracy and
completeness of that information. But a Party shall not be liable for not
providing any information that is subject to a confidentiality obligation
owed by it to a Person other than an Affiliate of it or the other Party.
A Party shall not be liable for any impairment of any Service caused by
its not receiving information, either timely or at all, or by its
receiving inaccurate or incomplete information from the other Party that
is required or reasonably requested regarding that Service.
2.8 LEGAL SERVICES. The Service described in one of the Schedules as "legal
services" consists of Sabre's making the Legal Staff available for
engagement by TCY and the TCY Companies for their legal matters. The
engagement, services, or withdrawal of any of the Legal Staff regarding a
particular legal matter for TCY or any of the TCY Companies, as well as
certain of the Prices for those legal services, are governed by and
subject to the Legal Staff's professional or ethical obligations.
2.9 WARRANTY DISCLAIMER. SABRE MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, REGARDING ANY SERVICE OR TASK OTHER THAN AS STATED IN
THIS AGREEMENT. SABRE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, REGARDING THE SERVICES.
ARTICLE III. DISCONTINUANCE OF OPTIONAL SERVICES
3.1 PROCEDURE. Either Party may discontinue or terminate any Optional Service
effective as of June 1 or December 1 of any year by providing six (6)
months' prior Notice to the other Party (and termination of such Optional
Service will be effective as of, but not before, the following December 1
or June 1, respectively and as applicable). Unless mutually agreed by the
Parties, neither Party may discontinue or terminate any of the individual
Tasks which comprise an Optional Service without terminating the entire
Optional Service. A Notice of discontinuance may refer to more than one
Optional Service. Any Optional Service that is the subject of a Notice of
discontinuance shall continue to be rendered by Sabre until the effective
date of the discontinuance, and TCY shall pay for that Optional Service
rendered until that date. A Party may not unilaterally rescind its Notice
of discontinuance.
3.2 IMPOSSIBLE OPTIONAL SERVICES. If either Party reasonably determines that
the discontinuance of any Optional Service would make it functionally
impossible to continue any other Optional Service, in whole or in part,
that Party shall promptly Notify the other of that determination. Any
Optional Service that so becomes functionally impossible to render shall
be deemed discontinued effective upon the date of discontinuance of the
Optional Service or Optional Services that caused that impossibility.
3.3 TRANSITION ASSISTANCE. For up to [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after the effective date of discontinuance of an Optional
Service, Sabre shall comply with TCY's reasonable requests for assistance
in TCY's engaging or training another Person or Persons to provide, and
for records and other information relating to, that discontinued Optional
Service. If Sabre discontinues that Optional Service, it shall comply
with those requests at its own expense. If TCY discontinues that Optional
Service, it shall pay for Sabre's compliance with those requests by:
(a) reimbursing Sabre all of its resulting reasonable out-of-pocket
expenses, and
(b) paying Sabre for the resulting time or activities of Sabre's
personnel on a time and materials basis.
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Invoicing and payment for transition assistance shall be in accordance
with ARTICLE 6. Sabre may cease providing transition assistance,
immediately upon Notice to TCY, if TCY has not paid the amount described
in a Nonpayment Notice by the [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after the Nonpayment Notice was given.
3.4 REINSTATEMENT OF DISCONTINUED SERVICE. Neither Party may unilaterally
reinstate any Optional Service that has been discontinued under this
Agreement.
ARTICLE IV. PRICES
4.1 BUDGETED COST ALLOCATION. The monthly prices for the Services will be
determined as follows:
(a) Prior to the beginning of each calendar year occurring (in whole or
part) during the term of this Agreement, Sabre will determine
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(b) For each calendar month during the term of this Agreement, the
monthly price for each Service shall be determined as follows:
(i) The monthly Price for each Optional Service (or Tasks) will be
calculated as follows: (a) 1.10 times (b) the Budgeted Service
Costs for such category of Optional Service (or Tasks), for
the calendar year in which the calendar month occurs [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(ii) The monthly Price for each Mandatory Service will be
calculated as follows: (a) the Budgeted Service Costs for such
category of Mandatory Service for the calendar year in which
the calendar month occurs[TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]
(c) Sabre will promptly notify TCY of Sabre's determination of Budgeted
Service Costs and the TCY Allocable Percentage, for each category of
Services (or Tasks), and permit TCY a reasonable opportunity to
discuss such determinations with Sabre.
4.2 COST ALLOCATION TRUE-UP. During each calendar year of the Agreement,
Sabre will determine, in a manner consistent with its customary practices,
the costs allocable to TCY's use of Services. For purposes of the
remainder of this SECTION 4.2, the costs allocable to TCY's use of
Optional Services (other than AMR Pass-through Services) will be equal to
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]of the costs determined
pursuant to the preceding sentence. If either Party believes that, for
any [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] ending [TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESTED]or [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]of any calendar year, the costs allocable to TCY's use
of Services were at least [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]greater than or less than the amounts paid by TCY during such
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED], pursuant to SECTION
4.1(b) and ARTICLE VI, then such Party may request, within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after the end of the period in question,
Sabre's calculation of such allocable costs and a comparison with such
amounts paid. If the calculation confirms a differential between such
allocable costs and such amounts paid of more than [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] then the Party that benefited from such
over-payment or underpayment will pay the entire differential (not just
that portion of the differential that is more than the [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] margin) to the other Party within [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] of the completion of the
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calculation. In addition, in such event, if the differential between
actual allocable costs, and amounts paid, during the [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED], would likely continue during the next
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED], then the Parties shall
negotiate in good faith to adjust the monthly price for Services, pursuant
to SECTION 4.1(b), in order to eliminate such differential for the next
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED].
ARTICLE V. EXPENSES AND TAXES
5.1 EXPENSES. Each Party shall be solely responsible for its costs and
expenses incurred in performing its obligations and exercising its rights
and remedies under this Agreement, except as otherwise provided in this
Agreement.
5.2 TAXES. The Parties shall be responsible for tax payments or liabilities
relating to this Agreement as follows:
(a) Each Party shall be responsible for its income and franchise taxes
and for all other taxes (however described) based on its own income
or earnings.
(b) TCY shall be responsible for all sales, use, and similar taxes
(however described) applicable to the Services, in whole or in part.
This obligation includes TCY's paying the sales taxes identified in
Sabre's invoices submitted to TCY for the Services.
(i) TCY shall indemnify Sabre, in accordance with SECTION
11.4(c)(ii), against any taxes of this kind assessed or levied
against, or paid by, Sabre and any other related Damages of
Sabre.
(ii) If Sabre receives an assessment from a taxing authority
covering taxes for which TCY is responsible under this SECTION
5.2(b), Sabre shall Notify TCY of the assessment and, at TCY's
request, timely contest the assessment. If payment to the
taxing authority is required by law as a condition to protest,
TCY shall timely furnish Sabre the required amount for that
payment.
(iii) If TCY believes it has overpaid taxes to Sabre for any of the
Services (in whole or in part), TCY may require Sabre to file
a claim for a refund at TCY's expense. If permitted by law,
Sabre may assign any right to a refund directly to TCY instead
of filing a refund claim. Any refund of taxes (including any
interest) received by Sabre under this SECTION 5.2(b)(iii)
shall be promptly forwarded to TCY.
(iv) Before Sabre is required to pursue any action requested by TCY
under this SECTION 5.2(b), Sabre may at any time require TCY
to deliver a letter of advice from outside counsel (selected
by TCY) stating that TCY's tax position is reasonable.
(v) Except as stated in the next sentence, any Dispute between the
Parties regarding the application of any taxes of this kind to
any Service (in whole or in part) shall be resolved by the
Dispute Resolution Procedure. Any Dispute as to the amount of
tax (if any) owed to a taxing authority, including a Dispute
between a Party and the taxing authority, need not be resolved
by the Dispute Resolution Procedure, but may be resolved by
any appropriate administrative or legal procedure available to
a Party or the Parties under this Agreement apart from the
Dispute Resolution Procedure.
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(c) Each Party shall be responsible for all real property, personal
property, and other taxes (however described) based on its owned or
leased property, whether real or personal.
(d) Each Party shall be responsible for all employment-related taxes
(however described) regarding its own employees.
Each Party shall cooperate with any reasonable request of the other Party
to restructure any Service, in whole or in part, or to take any other
reasonable action to avoid or minimize any duplicate taxes that might be
imposed; the requesting Party shall bear the expenses of the other Party's
compliance.
ARTICLE VI. PAYMENT
6.1 INVOICES. Sabre shall submit to TCY monthly one or more invoices for the
Services. Each invoice shall indicate:
(a) The amount charged for each Service covered by that invoice; and
(b) if that invoice includes any credit or offset for TCY, the amount
and purpose of that credit or offset.
Each invoice should also indicate the sales, use, or similar taxes being
collected on each Service, or part of a Service, that Sabre believes to be
so taxable. An invoice may cover more than one Service.
6.2 PAYMENT. TCY shall pay the amount of each invoice within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after the date of that invoice. TCY
shall pay the invoiced amount even if TCY disputes all or a portion of
that amount, unless Sabre has agreed on or before the due date to accept a
different amount.
6.3 METHOD OF PAYMENT. TCY shall pay Sabre by wire transfer of immediately
available funds to an account or accounts designated by Sabre. All
payments shall be made in United States currency.
6.4 INTEREST. Sabre may charge interest on any past due invoiced amount at
the [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] from the due date
until paid in full with accrued interest. Any payment of interest only is
not a cure or Sabre's sole remedy for nonpayment of any invoiced amount
that is due.
6.5 NONPAYMENT NOTICE. If Sabre does not receive the full payment of any
invoice (and has not agreed to accept a different amount), it may give TCY
a Nonpayment Notice. TCY shall pay the amount described in the Nonpayment
Notice by the [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]after that
Nonpayment Notice is given.
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ARTICLE VII. CONFIDENTIALITY AND AUDIT RIGHTS
7.1 CONFIDENTIALITY.
(a) OWNERSHIP; SCOPE OF OBLIGATION. As between the Parties, the
Confidential Information of each Party will remain its sole
property. Confidential Information will be used by the recipient
Party only for purposes of this Agreement. Each Party will hold the
Confidential Information of the other Party in strict confidence and
protect such Confidential Information from disclosure using the same
care it uses to protect is own confidential information of like
importance, but not less than reasonable care. No Confidential
Information will be disclosed by the recipient Party without the
prior written consent of the other Party, except that each Party may
disclose this Agreement and the other Party's Confidential
Information to its directors, employees, attorneys, agents,
auditors, insurers and subcontractors who require access to such
information in connection with their employment or engagement and
who are obligated to keep such information confidential in a manner
no less restrictive than as set forth in this SECTION 7.1. The
Party employing or engaging such Persons is responsible and liable
for their compliance with such confidentiality obligations.
(b) EXCEPTIONS. This Agreement does not prevent or restrict use or
disclosure by the recipient Party of Confidential Information of the
disclosing Party that (i) was in the public domain when communicated
to the recipient Party, (ii) enters the public domain through no
fault of the recipient Party, (iii) was in recipient Party's
possession free of any obligation of confidence when communicated to
the recipient Party or (iv) was rightfully communicated to the
recipient Party by a Third Party free of any obligation of
confidence to the disclosing Party. If Confidential Information is
required to be disclosed by law or a Governmental Authority,
including pursuant to a subpoena or court order, such Confidential
Information may be disclosed, provided that the Party required to
disclose the Confidential Information (i) promptly notifies the
disclosing Party of the disclosure requirement, (ii) cooperates with
the disclosing Party's reasonable efforts to resist or narrow the
disclosure and to obtain an order or other reliable assurance that
confidential treatment will be accorded the disclosing Party's
Confidential Information, and (iii) furnishes only Confidential
Information that the Party is legally compelled to disclose
according to advice of its legal counsel. Upon written request at
the expiration or termination of this Agreement, all documented
Confidential Information (and all copies thereof) owned by the
requesting Party will be returned to it or destroyed by the
recipient Party, with written certification thereof.
7.2 AUDIT RIGHTS.
(a) GENERAL. Auditors designated by TCY, and who agree in writing to the
security and confidentiality obligations and procedures required by
Sabre, will be provided with reasonable access to locations from
which Sabre provides Services to enable them to audit Sabre's
activities under this Agreement, including verifying that Services
are being provided in accordance with this Agreement. The auditors
must be internationally recognized firms and TCY may not designate
any auditor who, in Sabre's reasonable opinion, is a competitor of,
or affiliated with a competitor of, Sabre or its Subsidiaries. TCY
will be responsible for compensating its auditors.
(b) PROCEDURES. Such audits may be conducted once a year during
reasonable business hours. TCY will provide Sabre with at least
thirty (30) days prior written notice of an audit. Sabre will
cooperate with the audit, will make the information reasonably
required to conduct the audit available on a timely basis and will
assist the designated employees of TCY's auditors as reasonably
necessary. Sabre will not be required to provide access to the
proprietary data of Sabre or other Sabre customers. All information
learned or exchanged in connection with the conduct of an audit, as
well as the results of any audit, is Confidential Information of
Sabre.
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(c) RESULTS. TCY will provide Sabre copies and results of each audit.
The Parties will review the results of an audit, will identify all
relevant audit issues and will determine (i) what, if any, actions
will be taken in response to such audit issues, and (ii) which Party
will be responsible for the cost of taking the actions necessary to
resolve such issues.
(d) RECORDS RETENTION. Each Party shall create and maintain accurate
records regarding the Services rendered and the amounts charged and
paid or received under this Agreement. Sabre's records shall
include information regarding the determination of the cost or the
cost allocation for each Service rendered. Each Party's records
regarding:
(i) the Services rendered, as of the Effective Date, shall be of
substantially the same kinds as that Party has created and
maintained regarding those Services before the Effective Date;
and
(ii) the Services, as changed after the Effective Date in
accordance with this Agreement, shall be of the kinds that are
reasonable, and consistent with the other business records
created and maintained by that Party, regarding services like
those Services.
Each Party shall create and maintain those records with the same
degree of completeness and care as it maintains its other similar
business records. Each Party shall maintain those records for the
time or times required by applicable law or regulation, except that
a party shall, upon request of the other Party, maintain any of
those records for a longer time if the requesting Party pays the
additional expenses incurred in complying with that request.
ARTICLE VIII. PARTIES' RELATIONSHIP
8.1 INDEPENDENT. The Parties are independent; each has sole authority and
control of the manner of, and is responsible for, its performance of this
Agreement. This Agreement does not create or evidence a partnership or
joint venture between the Parties. Neither Party may create or incur any
liability or obligation for or on behalf of the other Party, except as
described in this Agreement and any other written agreement between the
Parties. This Agreement does not restrict Sabre from providing or
rendering any services, including services like the Services, to any other
Person; nothing in this Agreement, however, gives Sabre the right to
provide or render any services in violation of any other agreement entered
into by the Parties.
8.2 EMPLOYEES. Except as described in SECTION 11.4(b) or SECTION 11.4(c) of
this Agreement, for the purposes of this Agreement:
(a) each Party is solely responsible for its own employees or agents,
including the actions or omissions and the compensation of those
employees and agents, and
(b) neither Party has any authority with respect to any of the other
Party's employees or agents.
8.3 AUTHORITY AND ENFORCEABILITY. Each Party warrants to the other Party
that:
(a) it has the requisite corporate authority to enter into and perform
this Agreement;
(b) its execution, delivery, and performance of this Agreement have been
duly authorized by all requisite corporate action on its behalf;
(c) this Agreement is enforceable against it; and
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(d) it has obtained all consents or approvals of Governmental
Authorities and other Persons that are conditions to its entering
into this Agreement.
8.4 THIRD-PARTY CONSENTS. Each Party shall be responsible for obtaining and
maintaining any licenses, permits, consents, or approvals of Governmental
Authorities and other Persons necessary or appropriate for it to perform
its obligations under this Agreement.
8.5 THIRD-PARTY-RELATED ARRANGEMENTS. The Parties also have certain
arrangements and agreements relating to certain of the Services provided
by an Effective Date Service Subcontract or provided directly by Sabre but
involving an agreement with a third party. The Parties currently expect
that the matters or issues addressed by those arrangements or agreements
will need to continue to be addressed -- whether in the same or in a
different manner -- upon Expiration or the termination of this Agreement
or the discontinuance of certain Optional Services. Hence, before and
upon any of those events, each Party shall use its Reasonable Efforts to
change, renegotiate, replace, sever, or assign, as the Parties mutually
agree, those arrangements or agreements as necessary to so address those
matters or issues and to equitably allocate to the respective Parties --
in accordance with their respective assets and businesses -- the benefits
and the obligations of those arrangements or agreements upon and after the
occurrence of any of those events.
8.6 FURTHER ASSURANCES. Each Party shall take such actions, upon request of
the other Party and in addition to the actions specified in this
Agreement, as may be necessary or reasonably appropriate to implement or
give effect to this Agreement.
ARTICLE IX. TERM
9.1 STATED TERM. This Agreement commences on the Effective Date and will
continue in effect until 11:59 p.m. on March 6, 2015, unless terminated
earlier by one or both of the Parties in accordance with ARTICLE 10.
9.2 RENEWAL. The Parties may consent to successive [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] by following this procedure: If TCY
wishes to renew the term of this Agreement, it shall Notify Sabre of that
intention no later than [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(and no more than [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]) prior
to the end of the then-current term of this Agreement. If Sabre wishes to
concur with that renewal, it shall Notify TCY of that concurrence within
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]of receipt of the Notice
delivered by Sabre pursuant to the previous sentence. If no Notice of
intent to renew or no concurrence is given, this Agreement will Expire
when the then-current term expires.
9.3 TRANSITION ASSISTANCE. For a period of up to [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]after Expiration, Sabre shall comply with TCY's
reasonable requests for assistance in engaging or training another Person
or Persons to provide, and for records and other information relating to,
the Services rendered by Sabre immediately preceding that Expiration. TCY
shall reimburse and pay Sabre's Transition Charges in accordance with
invoices submitted to TCY by Sabre. ARTICLE 6 shall apply in this
situation as though this Agreement had not Expired. Sabre may cease
providing transition assistance, immediately upon Notice to TCY, if TCY
has not paid the amount described in a Nonpayment Notice by the [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED]after the Nonpayment Notice was
given. If the records or other information provided by Sabre are
Confidential Information, SECTION 7.1 shall also apply as though this
Agreement had not Expired.
ARTICLE X. TERMINATION
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10.1 TERMINATION EVENTS. This Agreement may be terminated, without liability
to the Party terminating:
(a) By either Party, upon [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]' Notice to the other, at any time upon or after the
Parties cease to be Affiliates.
(b) By a Party, immediately upon Notice to the other Party, if:
(i) that other Party makes a general assignment of all or
substantially all of its assets for the benefit of its
creditors;
(ii) that other Party applies for, consents to, or acquiesces in
the appointment of a receiver, trustee, custodian, or
liquidator for its business or all or substantially all of its
assets;
(iii) that other Party files, or consents to or acquiesces in, a
petition seeking relief or reorganization under any bankruptcy
or insolvency laws; or
(iv) a petition seeking relief or reorganization under any
bankruptcy or insolvency laws is filed against that other
Party and is not dismissed within [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]after it was filed.
(c) By a Party, immediately upon Notice to the other Party, if that
other Party's material breach of this Agreement continues uncured or
uncorrected for [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
after both the nature of that breach and the necessary cure or
correction has been agreed upon by the Parties or otherwise
determined by the Dispute Resolution Procedure. But if:
(i) the Parties agree or it is determined by the Dispute
Resolution Procedure that the material breach is not capable
of being cured or corrected, the termination shall be
effective immediately upon Notice, without any cure period; or
(ii) the breaching Party (A) reasonably requires longer than [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] to cure or correct
-- such as when the applicable Service Subcontract permits the
Subcontractor longer than [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] to cure or correct -- and (B) Notifies
the non-breaching Party of the circumstances, then the cure
period shall be extended for the reasonable time so required,
so long as during that time the breaching Party diligently
acts to effect that cure or correction; provided, however,
that in no event shall this SECTION 10.1(c)(ii) apply to TCY's
obligation to make payments to Sabre under this Agreement.
A non-breaching Party's exercise of the remedy described in this
SECTION 10.1(c) shall be conditioned upon its giving a Breach Notice
to the other Party.
(d) By Sabre, immediately upon Notice to TCY, if TCY has not paid the
amount described in a Nonpayment Notice by the [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after that Nonpayment Notice was
given.
A Party may not terminate this Agreement if the event or circumstance
described above in this SECTION 10.1, upon which that Party would rely in
so terminating, was caused by that Party's breach of this Agreement.
10.2 NONEXCLUSIVE. The termination rights under SECTIONS 10.1(c) and 10.1(d)
are not exclusive of any other right or remedy of a non-breaching Party
granted in this Agreement.
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10.3 CONSEQUENCES OF TERMINATION. Upon termination of this Agreement:
(a) Under SECTION 10.1(a) or by TCY under SECTION 10.1(c):
(i) During the Transition Period Sabre shall continue to render,
and TCY shall pay for, each Service reasonably requested by
TCY until terminated by either Party in accordance with
SECTIONS 10.3(a)(ii) and 10.3(a)(iii). Except as stated in
SECTION 10.3(a)(ii), the terms of this Agreement shall
continue to apply during the Transition Period as though no
termination of this Agreement had occurred.
(ii) The Price for each Service during the Transition Period shall
be the same as in effect immediately preceding the Termination
Date. During the Transition Period, any Service (including a
Mandatory Service), but not any one or more of the Tasks
separately, may be terminated by (A) TCY, for any reason, by
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] Notice to
Sabre, or (B) Sabre, if TCY has not paid the amount described
in a Nonpayment Notice by the [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after the Nonpayment Notice was given.
Any Service that is the subject of a Notice of termination
shall continue to be rendered by Sabre until the effective
date of that termination, and TCY shall pay for that Service
rendered through that date. Neither Party may unilaterally
rescind a Notice of termination.
(iii) If either Party reasonably determines that the termination of
any Service during the Transition Period would make it
functionally impossible to continue any other Service during
the Transition Period, that Party shall promptly Notify the
other Party of that determination; any Service that so becomes
functionally impossible to render shall be deemed terminated
effective upon the date of termination of the Service that
caused that impossibility. Neither Party may unilaterally
reinstate any Service that has been terminated as of the
Termination Date or during the Transition Period.
(b) Under SECTION 10.1(b), during the Transition Period Sabre shall
comply with TCY's reasonable requests for assistance in TCY's
engaging or training another Person or Persons to provide, and for
records and other information relating to, each Service in effect
immediately preceding the Termination Date. If Sabre terminates
this Agreement, Sabre shall comply with those requests at its own
expense. If TCY terminates this Agreement, TCY shall reimburse and
pay Sabre's Transition Charges in accordance with invoices submitted
to TCY by Sabre. ARTICLE 6 shall apply in this situation as though
this Agreement had not been terminated. When TCY is obligated to
reimburse and pay Sabre's Transition Charges, Sabre may cease
providing transition assistance, immediately upon Notice to TCY, if
TCY has not paid the amount described in a Nonpayment Notice by the
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the
Nonpayment Notice was given. If the records or other information
provided by Sabre are Confidential Information, SECTION 7.1 shall
also apply as though this Agreement had not been terminated.
(c) Under SECTION 10.1(d) or by Sabre under SECTION 10.1(c), then Sabre
shall have no obligation to provide any continued Services or
transition assistance as described above in this SECTION 10.3.
ARTICLE XI. LIABILITY AND REMEDIES
11.1 WARRANTIES. Each Party's warranties in this Agreement are made solely to
and for the benefit of the other Party and, to the extent described in
this Agreement, the TCY Companies. No Person other than a Party
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may make a claim based on the other Party's warranties under this
Agreement; any claim by a TCY Company shall be made by TCY.
11.2 NONCONFORMING SERVICES. TCY shall promptly Notify Sabre of any Deficiency
in any Service or Task, whether rendered by Sabre or a Subcontractor. To
the extent Sabre agrees, or it is otherwise determined by the Dispute
Resolution Procedure, that a Service or Task was or is a Nonconforming
Service, Sabre shall use its Reasonable Efforts promptly to cure or
correct, or cause its Subcontractor to cure or correct, the Deficiency to
the extent it may then be cured or corrected.
(a) If the Deficiency was, or was the result of, Sabre's negligence,
Sabre shall not be responsible or liable for any resulting Damages
of TCY; provided, however, that if Sabre performs on its own behalf
a service that is substantially similar to Service or Task which is
the subject of the Deficiency, and Sabre has not been negligent in
performing such substantially similar service on its own behalf,
then subject to SECTION 11.3 below, Sabre shall be responsible or
liable for TCY's resulting damages in an amount up to:
(i) if Sabre's liability is determined (by the Parties' agreement
or the Dispute Resolution Procedure) after the calendar year
in which the Deficiency occurred, [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]; or
(ii) if Sabre's liability is determined during the calendar year
in which the Deficiency occurred, the greater of [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(b) If the Deficiency was, or was the result of, Sabre's or a
Subcontractor's gross negligence (including recklessness) or willful
misconduct, or a Subcontractor's negligence, then, subject to
SECTION 11.2(c) and SECTION 11.3 below, Sabre shall be responsible
or liable for TCY's resulting Damages in an amount up to:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(c) If the Deficiency was, or was the result of, a Subcontractor's
negligence, gross negligence (including recklessness) or willful
misconduct, then the additional limitations of this SECTION 11.2(c)
shall apply. In such event, Sabre's responsibility or liability to
TCY for Damages resulting from such Deficiency shall not exceed
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]. In lieu of
seeking to recover damages from the relevant Subcontractor, Sabre
has the right, but not the obligation, to assign to TCY Sabre's
right to recover such damages from such Subcontractor.
11.3 [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
11.4 INDEMNITIES FOR CERTAIN BREACHES AND OTHER MATTERS. The following shall
apply to any breach of, and certain other Damages relating to, this
Agreement, other than a Deficiency for which Sabre has no liability
for Damages under SECTION 11.2(a) or a nonpayment by TCY of any amount
relating to an invoice:
(a) Subject to the limits on liability described in SECTION 11.2(b) AND
(c), if that Section is applicable, each Party shall indemnify the
other Party against all Damages of the Indemnified Party, or any of
its Indemnified Agents, resulting from or relating to:
(i) any breach of this Agreement, including a breach of any
warranty in this Agreement, by the Indemnifying Party;
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(ii) any Proceedings relating to a breach of this Agreement by the
Indemnifying Party; and
(iii) the actions or omissions of the Indemnifying Party's employees
or agents under or in connection with this Agreement, except
as described in SECTIONS 11.4(b) and 11.4(c).
(b) TCY shall also indemnify Sabre against all Damages of Sabre or any
of its Indemnified Agents, including any Subcontract Termination
Penalty, under or relating to any Service Subcontract resulting
from:
(i) any violation by TCY of any obligation imposed on it under
that Service Subcontract;
(ii) the actions or omissions of TCY's employees or agents under or
in connection with that Service Subcontract;
(iii) TCY's discontinuance of any Optional Service that Sabre
renders, in whole or in part, by that Service Subcontract,
even if permitted by ARTICLE 3;
(iv) TCY's performing itself or obtaining from any Person other
than Sabre or its Subcontractor any service or services to
supplement or substitute for any Optional Service that Sabre
renders, in whole or in part, by that Service Subcontract;
(v) the actions, omissions or claims of any client or customer of
TCY or any Person to whom TCY provides goods or services; or
(vi) the termination of this Agreement other than a termination by
TCY under SECTIONS 10.1(a), 10.1(b) or 10.1(c).
(c) TCY shall also indemnify Sabre against all Damages of Sabre or any
of its Indemnified Agents resulting from or relating to:
(i) the actions or omissions of any of the Legal Staff that are
directed by TCY or any TCY Company within the scope of that
lawyer's or paralegal's engagement for any legal matter of TCY
or any TCY Company; or
(ii) any sales, use, or similar taxes (however described)
applicable to any of the Services, in whole or in part, that
are assessed or levied against or paid by Sabre.
(d) The indemnification obligations in SECTIONS 11.4(a), 11.4(b), and
11.4(c) shall be extinguished to the extent that the Damages of the
other Party, or any of its Indemnified Agents for whom or which the
other Party is seeking indemnification, were caused by the gross
negligence (including recklessness) or willful misconduct of the
Person for whom or which indemnification is sought. THE ORDINARY
NEGLIGENCE OF A PERSON OR THE JOINT OR CONCURRENT ORDINARY
NEGLIGENCE OF PERSONS SHALL NOT PRECLUDE THAT PERSON OR ANY OF THOSE
PERSONS FROM RECEIVING THE BENEFITS OF INDEMNIFICATION UNDER THIS
AGREEMENT.
(e) If an Indemnification Claim is not based on a Third-Party Claim, the
Indemnified Party shall give an Indemnification Claim Notice
promptly after the event constituting the basis for the
Indemnification Claim; its failure to do so, however, shall relieve
the Indemnifying Party of its indemnification obligations only to
the extent the Indemnifying Party is actually prejudiced by that
failure. If the Indemnified Party gives an Indemnification Claim
Notice regarding an Indemnification Claim not based on a Third-Party
Claim, the Indemnifying Party shall Notify the Indemnified Party
within the Indemnification Response Period whether the Indemnifying
Party
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disputes all or any portion of the Indemnification Claim. If
the Indemnifying Party does not give that dispute Notice or agrees
to accept liability for all or a portion of the Indemnification
Claim, the Indemnification Claim, or the agreed portion of that
Indemnification Claim, shall be the Indemnifying Party's liability.
Otherwise, the Indemnification Claim shall be deemed a Dispute to be
resolved by the Dispute Resolution Procedure.
(f) If an Indemnification Claim is based on a Third-Party Claim:
(i) The Indemnified Party shall give an Indemnification Claim
Notice promptly after it receives the Third-Party Claim. The
failure of an Indemnified Party to timely give an
Indemnification Claim Notice shall relieve the Indemnifying
Party of its indemnification obligations only to the extent
the Indemnifying Party is actually prejudiced by that failure.
(ii) The Indemnifying Party shall be entitled to defend the Third-
Party Claim, with its chosen counsel and at its own expense,
if (A) the Third-Party Claim seeks only monetary relief, and
not an injunction or other equitable relief, against the
Indemnified Party, and (B) the Indemnifying Party elects to
assume, and diligently conducts, that defense. The
Indemnifying Party's election to defend shall be given by
Notice to the Indemnified Party within the Indemnification
Response Period. If the Indemnifying Party conducts the
defense, the Indemnified Party may participate in that defense
with its own counsel and at its own expense.
(iii) If the Indemnifying Party does not elect to defend the Third-
Party Claim by Notice within the Indemnification Response
Period, or if the Indemnifying Party does not diligently
conduct the defense, the Indemnified Party shall be entitled,
upon further Notice to the Indemnifying Party, to defend the
Third-Party Claim on behalf of, and for the account and risk
of, the Indemnifying Party (if it is determined that the
Indemnifying Party has an indemnification obligation regarding
that Indemnification Claim). In this circumstance, the
Indemnifying Party may participate in the defense with its own
counsel and at its own expense.
(iv) If there is a conflict of interest that makes it inappropriate
for the same counsel to represent the Indemnifying Party and
the Indemnified Party in defending the Third-Party Claim, the
Indemnifying Party shall pay for separate counsel for the
Indemnified Party.
(v) The Indemnifying Party defending a Third-Party Claim may
compromise, settle, or resolve that Third-Party Claim without
the Indemnified Party's consent if the compromise, settlement,
or resolution involves only the payment of money by the
Indemnifying Party (whether on its own behalf or behalf of the
Indemnified Party) and the third-party claimant provides the
Indemnified Party a release from all liability regarding the
Third-Party Claim. Otherwise, the Indemnifying Party may not
compromise, settle, or resolve the Third-Party Claim without
the Indemnified Party's Reasonable Consent.
(vi) The Indemnifying Party and the Indemnified Party shall
cooperate with all reasonable requests of the other in
defending any Third-Party Claim.
11.5 TIME FOR CLAIMS. TCY may make a claim against Sabre for the cure or
correction of any Deficiency only within [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after the Deficiency occurred; any Deficiency shall
be deemed to have occurred when the particular Nonconforming Service was
rendered. A Party may make an Indemnification Claim
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(a) not based on a Third-Party Claim, only within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after the breach or other event
constituting the basis for that Indemnification Claim occurred, even
if not discovered until after that [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED], or
(b) based on a Third-Party Claim, at any time.
11.6 EQUITABLE RELIEF. To the extent that monetary relief is not a sufficient
remedy for any breach of this Agreement, or upon any breach or impending
breach of SECTION 7.1, the non-breaching Party shall be entitled to
injunctive relief as a remedy for that breach or impending breach by the
other Party, in addition to any other remedies granted to the
non-breaching Party in this Agreement.
11.7 EXCLUSIVE REMEDIES. Except for the termination right stated in ARTICLE 10
and the relief described in SECTIONS 5.2(b) and 12.8(d) and in the Dispute
Resolution Procedure, the remedies described in this ARTICLE 11 are the
exclusive rights and remedies of a Party regarding any breach of this
Agreement or any matter that may be the subject of an Indemnification
Claim.
11.8 WAIVER OF REMEDIES. No forbearance, delay, or indulgence by either Party
in enforcing this Agreement -- within the applicable time limits stated in
this Agreement -- shall prejudice the rights or remedies of that Party.
No waiver of a Party's rights or remedies regarding a particular breach of
this Agreement constitutes a waiver of those rights or remedies, or any
other rights or remedies, regarding any other or any subsequent breach of
this Agreement.
11.9 CUMULATIVE REMEDIES. A Party's election to pursue a right or remedy
granted in this Agreement upon the other Party's breach of this Agreement
shall not preclude the non-breaching Party from pursuing other rights or
remedies granted to that Party in this Agreement that are applicable to
that breach under this Agreement.
ARTICLE XII. MISCELLANEOUS
12.1 ENTIRE AGREEMENT; SURVIVAL. This Agreement (including the Definitional
Appendix, Exhibits and Schedules 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. Such provisions will
include ARTICLES 7 and 11 and payments that remain due and payable under
this Agreement.
12.2 AMENDMENTS; WAIVER. Changes or modifications to this Agreement may not be
made orally, but only by a written amendment or revision signed by both
Parties. 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 prior,
concurrent or subsequent breach of the same or any other provision hereof.
12.3 BINDING NATURE; ASSIGNMENT. This Agreement will be binding on the Parties
and their successors and permitted assigns (it being understood and agreed
that nothing contained in this Agreement is intended to confer upon any
other Person any rights, benefits or remedies of any kind or character
whatsoever under or by reason of this Agreement). 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, provided, that Sabre may
assign its rights and delegate its
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duties and obligations without the prior written consent of TCY to any
Subsidiary or Affiliate of Sabre as necessary in order for such Subsidiary
or Affiliate to provide all or part of the Services. The Parties
acknowledge that either Party might become a party to one or more
transactions in the form of a merger, consolidation, reorganization, stock
sale or exchange, sale of any substantial portion of such Party's assets
or similar transaction. Any such transaction involving a Party (and
whether or not it is the surviving entity) will be deemed to be an
assignment of this Agreement by that Party requiring the consent of the
other Party if: (a) in the case of Sabre being involved in such a
transaction, the transaction materially and adversely affects Sabre's
ability to continue to perform the Services in accordance with this
Agreement; or (b) in the case of TCY being involved in such a transaction,
the transaction (i) causes a material increase in Sabre's costs to
provide Services, or (ii) impairs TCY's ability to meet its financial
obligations hereunder.
12.4 THIRD PARTY BENEFICIARIES. Except as provided in this Agreement, this
Agreement is entered into solely between, and may be enforced only by,
Sabre and TCY, and this Agreement will not be deemed to create any rights
in third parties, including suppliers and customers of a Party, or to
create any obligations of a Party to any such third parties.
12.5 DISPUTE RESOLUTION. All Disputes arising out of the transactions
contemplated by this Agreement will be resolved in accordance with the
Dispute Resolution Procedure set forth in EXHIBIT A.
12.6 APPROVALS AND SIMILAR ACTIONS. Except as otherwise expressly provided in
this Agreement, where agreement, approval, acceptance, consent or similar
action is required of either Party by any provision of 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.
12.7 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 at the addresses set forth in EXHIBIT B. All notices under
this Agreement that are addressed as provided in this SECTION 12.7, (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.
12.8 FORCE MAJEURE.
(a) NO BREACH OR LIABILITY. No delay or failure of a Party to perform
any of its obligations, other than payment obligations, under this
Agreement due to causes beyond its reasonable control shall
constitute a breach of this Agreement or render that Party liable
for that delay or failure. Causes beyond a Party's reasonable
control include:
(i) events or circumstances that the Party, using its Reasonable
Efforts, is unable to prevent or overcome;
(ii) as to Sabre, causes also beyond the reasonable control of the
Person to whom or which Sabre has Subcontracted the affected
Service or Task in accordance with this Agreement; and
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(iii) labor disputes, strikes, or other similar disturbances; acts
of God; utilities or communications failures; acts of the
public enemy; and riots, insurrections, sabotage, or
vandalism.
(b) NOTICE OF EXCUSABLE DELAY OR FAILURE. If a Party anticipates any
excusable delay or failure under SECTION 12.8(a), it shall promptly
Notify the other Party of the anticipated delay or failure, the
anticipated effect of that delay or failure, and any actions that
are being or are to be taken to alleviate or overcome the cause of
the delay or failure.
(c) EFFORTS TO OVERCOME. If a Party is claiming an excusable delay or
failure under SECTION 12.8, it shall use its Reasonable Efforts to
alleviate or overcome the cause of the delay or failure as soon as
practicable.
(d) EXTENDED DELAY OR FAILURE. If an excusable delay or failure
continues for more than [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED], the Party entitled to the benefit of the affected
obligation may perform itself or obtain from any other Person the
obligation to which that Party is entitled (and that Party shall
Notify the other Party of this election).
12.9 CONSTRUCTION RULES. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected
or impaired, and such provision will be deemed to be restated to reflect
the original intentions of the Parties as nearly as possible in accordance
with applicable law. The Parties agree that this Agreement is an
executory contract as contemplated by 11 U.S.C. Section 365. 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. 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. The Parties acknowledge and agree that each has been
represented by legal counsel of its choice throughout the negotiation and
drafting of this Agreement, that each has participated in the drafting
hereof 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.
12.10 FURTHER ASSURANCES. The Parties will execute and deliver such other
instruments and documents, and take such other actions, as either Party
reasonably requests to evidence or effect the transactions contemplated by
this Agreement.
12.11 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of Texas, without giving
effect to any choice-of-law rules that may require the application of the
laws of another jurisdiction.
* * *
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IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement as of the Effective Date.
XXXXXXXXXXX.XXX LP SABRE INC.
By: TRAVELOCITY HOLDINGS, INC.,
Its general partner By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
By: /s/ Xxxxxx X. Xxxxxxxxx Title: Sr. V.P. and CFO
---------------------------- --------------------------
Title: Sr. V.P., General Counsel Date: March 7, 2000
and Corporate Secretary ---------------------------
-------------------------
Date: March 7, 2000
--------------------------
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DEFINITIONAL APPENDIX TO
ADMINISTRATIVE SERVICES AGREEMENT
A. DEFINED TERMS. In the Agreement, the following terms have the
corresponding meanings:
"AFFILIATE": A Person that directly or indirectly through one or more
intermediaries Controls, is Controlled by, or is under common Control with
another Person.
"AGREEMENT": The Administrative Services Agreement between Sabre and TCY
(including the Definitional Appendix, the Dispute Resolution Appendix, and
the Schedules), as may be amended or supplemented from time to time in
accordance with its terms.
"AA": means American Airlines, Inc., a Delaware corporation.
"AA PASS-THROUGH SERVICE" has the meaning given in SECTION 4.1(b)(i).
"ARBITRATION RULES": The Rules for Commercial Arbitration of the American
Arbitration Association in effect at the time of an arbitration in accordance
with the Dispute Resolution Procedure.
"BREACH NOTICE": A Party's Notice to the other Party alleging a breach of
the Agreement (other than TCY's nonpayment of any amount related to an
invoice) by the other Party, which describes the alleged breach, to the
extent known by the notifying Party, and any particular cure or correction
requested by the notifying Party.
"BUDGETED SERVICE COSTS" has the meaning given in SECTION 4.1(a)(i).
"BUSINESS DAY": Any Monday through Friday, excluding any such day on which
banks are authorized to be closed in Texas.
"CONFIDENTIAL INFORMATION": All information identified by a Party as
confidential to which the other Party has access in connection with the
Services, whether before or after the Effective Date, and the Administrative
Services Agreement and the Parties' rights and obligations thereunder.
"CONTROL": The right to exercise, directly or indirectly, more than 50% of
the voting power attributable to the equity interests in an entity.
("Controlling" and "Controlled" have correlative meanings.)
"CONSENT": The prior written consent of a Party (in any capacity) in its
sole discretion.
"DAMAGES": Losses, claims, obligations, demands, assessments, fines and
penalties (whether civil or criminal), liabilities, expenses and costs
(including reasonable fees and disbursements of legal counsel and
accountants), bodily and other personal injuries, damage to tangible
property, and other damages, of any kind or nature, actually suffered or
incurred by a Person. "Damages":
1. consists only of actual damages;
2. excludes any lost profits, lost income, or lost savings and any
punitive, exemplary, consequential, indirect, special, or incidental
damages (however described), even if the possibility of those losses or
damages was known; and
3. includes (except as may be reduced in accordance with the next
sentence) all fines, penalties, and interest paid or payable to any
Governmental Authority.
If TCY has Damages, for which Sabre is liable, consisting of fines,
penalties, and interest paid or payable to a Governmental Authority
corresponding to any tax not timely paid, then those "Damages" shall be
reduced by an amount equal to interest, [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED], accrued on that
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tax from the due date until that tax is paid; for the avoidance of doubt, in
this situation "Damages" shall not include any tax for which TCY would
otherwise be liable to the Governmental Authority. Also for the avoidance of
doubt, the "Damages" of a Person shall include any lost profits, lost income,
or lost savings and any punitive, exemplary, consequential, indirect,
special, or incidental damages (however described) awarded against that
Person in favor of another Person asserting a Third-Party Claim against that
Person. Notwithstanding anything to the contrary contained herein, "Damages"
expressly includes all payments required to be made by TCY, and all claims of
Sabre for payments required to be made by TCY, under this Agreement.
"DEFICIENCY": Sabre's failure, in rendering a Service or Task, to satisfy
any contractual requirements for performance established under the Agreement.
("Deficient" has the correlative meaning.)
"DEFINITIONAL APPENDIX": This Definitional Appendix to Administrative
Services Agreement, containing definitions and interpretive matters for, as
an integral part of, the Agreement.
"DISPUTE": Any dispute, disagreement, claim, or controversy arising in
connection with or relating to the Agreement, or the validity,
interpretation, performance, breach, or termination of the Agreement,
including any claim of breach of representation or warranty or of
nonperformance and any claim regarding bodily or other personal injury or
damage to tangible property.
"DISPUTE RESOLUTION APPENDIX": The Dispute Resolution Appendix to,
containing the Dispute Resolution Procedure for, as an integral part of, the
Agreement.
"DISPUTE RESOLUTION PROCEDURE": The procedure or process by which a Dispute
shall be resolved (except as otherwise stated in the Agreement) as described
in the Dispute Resolution Appendix.
"EFFECTIVE DATE": March 7, 2000, the date on which the Agreement becomes
effective.
"EXPIRATION": The expiration of the term of the Agreement as stated in, and
as may be renewed under, Article 2, without regard to any period of
transition assistance. For the avoidance of doubt, "Expiration" does not
include a termination of the Agreement under SECTION 10.1. ("Expire" and
"Expired" have correlative meanings.)
"GOVERNMENTAL AUTHORITY": Any federal, state, local, or foreign government
or governmental, quasi- governmental, administrative, or regulatory
authority, agency, body, or entity, including any court or other tribunal.
"INDEMNIFICATION CLAIM": A claim or demand of a Party, on its behalf or on
behalf of one or more of its Indemnified Agents, for indemnification under
SECTION 11.4.
"INDEMNIFICATION CLAIM NOTICE": A Notice from the Indemnified Party
describing an Indemnification Claim and the amount or the estimated amount of
that Indemnification Claim to the extent then feasible (though that estimate
shall not be determinative of the final amount of that Indemnification Claim).
"INDEMNIFICATION RESPONSE PERIOD": The
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after an Indemnification
Claim Notice is given during which the Indemnifying Party may investigate and
determine its responsibility or liability for an Indemnification Claim and,
if relating to a Third-Party Claim, Notify the Indemnified Party of the
Indemnifying Party's election to defend that Third-Party Claim.
"INDEMNIFIED AGENTS": Collectively, the officers, directors, employees, and
agents of a Party and, as to TCY, the TCY Companies and their respective
officers, directors, employees, and agents.
"INDEMNIFIED PARTY": A Party entitled to or seeking indemnification, on its
own behalf or on behalf of one or more of its Indemnified Agents, under
SECTION 11.4.
"INDEMNIFYING PARTY": A Party that has or is alleged to have an obligation
to indemnify the other Party in response to an Indemnification Claim.
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CONFIDENTIAL
"INFORMATION TECHNOLOGY SERVICES AGREEMENT": The Information Technology
Services Agreement between Sabre and TCY dated March 7, 2000, as may be
amended or supplemented from time to time in accordance with its terms.
"LEGAL STAFF": Legal personnel that Sabre employs or otherwise engages.
"MANDATORY SERVICE": A Service that shall be rendered and paid for, and may
not be unilaterally discontinued under by TCY during the effectiveness of the
Agreement.
"NONCONFORMING SERVICE": A Service or Task that, as agreed by the Parties or
otherwise determined by the Dispute Resolution Procedure, was or is Deficient.
"NONPAYMENT NOTICE": A Notice from Sabre to TCY that describes an amount
related to an invoice to TCY that Sabre has not received when due, which
shall:
1. constitute a demand for payment of the described amount; and
2. state that either termination of the Agreement or cessation of
transition assistance, whichever is applicable, by Sabre may result if the
described amount is not paid by the tenth Business Day after that Notice
is given.
"NOTICE": A written communication complying with SECTION 12.7. ("Notify" has
the correlative meaning.)
"OPTIONAL SERVICE": A Service that may be unilaterally discontinued by
either Party in accordance with the Agreement.
"PARTIES": Collectively, Sabre and TCY. ("Party" means either Sabre or TCY.)
"PERSON": An individual; a corporation, partnership, trust, association, or
entity of any kind or nature; or a Governmental Authority.
"PRICE": The amount or rate, in either case whether fixed or variable and
however measured, charged to TCY for a Service, as agreed by the Parties.
"PROCEEDINGS": Any action, suit, claim, investigation, demand, audit, or
other proceedings by or before any Governmental Authority or any arbitration
proceedings.
"REASONABLE CONSENT": The prior written consent of a Party (in any
capacity), which may not be unreasonably withheld or delayed.
"REASONABLE EFFORTS": The efforts of a Party that are commercially
reasonable under the circumstances, which do not require a Party to institute
or prosecute any Proceedings or to pay any Person other than that Party's
representatives or agents, including (only as to Sabre) Subcontractors.
"REPRESENTATIVES": Collectively, Sabre's Representative and TCY's
Representative.
"SABRE": Sabre, Inc., a Delaware corporation.
"SABRE'S REPRESENTATIVE": The individual agent or representative designated
by Sabre to be Sabre's formal liaison with or representative to TCY for
matters relating to the Agreement, having the (non-exclusive) authority and
responsibility described in the Agreement.
"SABRE'S TRANSITION CHARGES": The sum of the following, incurred in or
resulting from Sabre's compliance with requests for transition assistance for
up to [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after Expiration or
during the Transition Period (as the case may be):
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[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
"SCHEDULE": A Schedule to the Agreement that describes a Service, and the
location or locations at which that Service is to be rendered if not at
Sabre's offices or Subcontracted.
"SERVICE": An individual management service, to be rendered by Sabre under
the Agreement, that is described as a "Service" in a Schedule. A Service may
also be described in a Schedule by all or a portion of its constituent Tasks.
"SERVICE SUBCONTRACT": An agreement or arrangement, oral or written, under
which a Subcontractor is to render or perform any Service or Task on Sabre's
behalf or in Sabre's stead.
"SUBCONTRACT": Sabre's entering into a Service Subcontract. ("Subcontracted"
and "Subcontracting" have correlative meanings.)
"SUBCONTRACT TERMINATION PENALTY": An obligation described in, as part of
the terms of, a Service Subcontract to pay the Subcontractor a charge, fine,
penalty, or other amount upon the termination or partial termination of that
Service Subcontract, including any return to the Subcontractor of any
equipment or goods held under that Service Subcontract.
"SUBCONTRACTOR": A Person, other than an employee of Sabre, who or which
enters into a Service Subcontract with Sabre.
"SUBSIDIARY": As to any Person, any other Person of which more than fifty
percent (50%) (in number of votes) of the issued and outstanding securities
having ordinary voting power for the election of at least a majority of the
directors is owned or controlled, directly or indirectly, by that Person.
"TASK": Any one of the group of processes, procedures, or services that is
described in a Schedule as constituting, or included in, a Service.
"TCY ALLOCABLE PERCENTAGE" has the meaning given in Section 4.1(a)(ii).
"TERMINATION DATE": The date on which the Agreement is terminated in
accordance with SECTION 10.1, without regard to any Transition Period.
"THIRD-PARTY CLAIM": A claim of liability asserted against either Party by a
Person other than the other Party or either Party's Indemnified Agents.
"TRANSITION PERIOD": The maximum
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the Termination Date
during which Sabre shall, as TCY reasonably requests, render one or more
Services in accordance with SECTION 10.3(a) or provide transition assistance
in accordance with SECTION 10.3(b).
"TCY": Xxxxxxxxxxx.xxx LP, a Delaware limited partnership.
"TCY COMPANY": Xxxxxxxxxxx.xxx Inc., a Delaware corporation, and any entity
over which TCY has Control.
"TCY'S REPRESENTATIVE": The individual agent or representative designated by
TCY to be TCY's formal liaison with or representative to TCY for matters
relating to the Agreement, having the (non-exclusive) authority and
responsibility described in the Agreement.
B. INTERPRETATIVE MATTERS. The Agreement is the result of the Parties'
negotiations, and no provision of the Agreement shall be construed for or
against either Party because of the authorship of that provision. In the
interpretation of the Agreement, except where the context otherwise requires:
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1. "including" or "include" does not denote or apply any limitation;
2. "or" has the inclusive meaning "and/or";
3. "$" refers to United States dollars;
4. the singular includes the plural, and vice versa, and each gender includes
each of the others;
5. captions or headings are only for reference and are not to be considered in
interpreting the Agreement;
6. "Article" and "Section" refer to an Article and Section, respectively, of
the Agreement, unless otherwise stated in the Agreement;
7. an event to occur, an action to be performed, or a condition to be satisfied
"by" or "as of" a stated date in the Agreement shall occur or be effective or
satisfied no later than 5:00 p.m. on that date; and
8. each reference to a time of day in the Agreement is to local time in Fort
Worth, Texas, and "midnight" begins a day.
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EXHIBIT A
DISPUTE RESOLUTION APPENDIX
1. CERTAIN DEFINITIONS
This Section 1 sets forth certain definitions used in this Dispute Resolution
Process. Other capitalized terms used but not defined here in have the
meanings ascribed to them in the Agreement.
ARBITRATION RULES
The rules of the American Arbitration Association ("AAA") in effect on the
date of the commencement of the arbitration.
QUALIFICATIONS
Having extensive knowledge or experience, or both, regarding information
technology services similar to the Services that are the subject of the
Dispute, and fluent in English.
2. DISPUTE RESOLUTION PROCEDURE.
(a) GENERAL PROCEDURE.
The Parties shall resolve all Disputes in accordance with this
procedure:
(i) Disputes shall first be submitted to the Representatives as
indicated in Section 3 of this Exhibit.
(ii) If a Dispute is not resolved by the Representatives, then
either Party may submit the Dispute to mediation as outlined
in Section 4 of this Exhibit.
(iii) If a Dispute is not resolved by mediation, then either Party
may submit the Dispute to binding arbitration in accordance
with Section 5 of this Exhibit.
A referral under either Section 2(a)(ii) and/or 2(a)(iii) of this
Exhibit shall be made by written notice to the Representatives.
That notice shall be in a form mutually agreed to by the
Representatives or an electronic mail message and addressed to each
Representative at his or her office address or electronic mail
address; each notice shall be given and effective upon actual
receipt.
3. DISPUTE RESOLUTION.
(a) REPRESENTATIVE ACTION.
If the Dispute (a) involves less than [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED], and (b) does not require an amendment to the
Services, Fees or any other material term of the Agreement, the
Representatives will discuss the Dispute in good faith in an attempt
to resolve the Dispute to the mutual satisfaction of both Parties.
If the Representatives are unable to resolve the Dispute to the
mutual satisfaction of both Parties within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after receipt of written notice by
one Party from the other that a Dispute exists, the Dispute shall,
at the written request of either Party, be submitted to mediation as
outlined in Section 4 of this Exhibit.
4. MEDIATION.
The mediation of an unresolved Dispute shall be conducted in this manner:
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(a) Either Party may submit the Dispute to mediation by giving notice of
mediation to the other Party. The Parties shall attempt to agree
promptly after that notice is given upon and appoint a sole mediator
who has the Qualifications.
(b) If the Parties are unable to agree upon a mediator within [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the date the
Dispute is submitted to mediation, either Party may request the
Dallas, Texas office of the AAA to appoint a mediator who has the
Qualifications. The mediator so appointed shall be deemed to have
the Qualifications and to be accepted by the Parties.
(c) The mediation shall be conducted in Dallas, Texas at a place and a
time agreed by the Parties with the mediator, or if the Parties
cannot agree, as designated by the mediator. The mediation shall be
held within [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after
the mediator is appointed.
(d) If either Party has substantial need for information from the other
Party in order to prepare for the mediation, the Parties shall
attempt to agree on procedures for the formal exchange of
information; if the Parties cannot agree, the mediator's
determination shall be effective.
(e) Each Party shall be represented in the mediation by a natural person
with authority to settle the Dispute on behalf of that Party and, if
desired by that Party, by counsel for that Party. The Parties'
representatives in the mediation shall continue with the mediation
as long as the mediator requests.
(f) Unless otherwise agreed by the Parties, each Party shall pay one-
half of the mediator's fees and expenses and shall bear all of its
own expenses in connection with the mediation. Neither Party may
employ or use the mediator as a witness, consultant, expert, or
counsel regarding the Dispute or any related matters.
5. ARBITRATION.
The arbitration of an unresolved Dispute shall be conducted in this manner:
(a) Either Party may begin arbitration by filing a demand for
arbitration in accordance with the Arbitration Rules. The Parties
shall attempt to agree upon and appoint a panel of three (3)
arbitrators promptly after that demand is filed. Each of those
arbitrators must have the Qualifications unless otherwise agreed by
both Parties.
(b) If the Parties are unable to agree upon any or all of the
arbitrators within [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
after the demand for arbitration was filed (and do not agree to an
extension of that ten-day period), then each Party shall designate
one arbitrator with Qualifications and the AAA shall designate a
third, if possible, with Qualifications; nevertheless, such
arbitrator so appointed shall be deemed to have the Qualifications
and to be accepted by the Parties as part of the panel.
(c) The arbitration shall be conducted in Dallas, Texas at a place and a
time agreed by the Parties with the panel, or if the Parties cannot
agree, as designated by the panel. The panel may, however, call and
conduct hearings and meetings at such other places as the Parties
may agree or as the panel may, on the motion of one Party, determine
to be necessary to obtain significant testimony or evidence.
(d) The Parties shall attempt to agree upon the scope and nature of any
discovery for the arbitration. If the Parties do not agree, the
panel may authorize any and all forms of discovery, including
depositions, interrogatories, and document production, upon a
showing of particularized need that the requested discovery is
likely to lead to material evidence needed to resolve the Dispute
and is not excessive in scope, timing, or cost.
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(e) The arbitration shall be subject to the Federal Arbitration Act and
conducted in accordance with the Arbitration Rules to the extent
they do not conflict with this Section 5. The Parties and the panel
may, however, agree to vary the provisions of this Section 5 or the
matters otherwise governed by the Arbitration Rules.
(f) The panel has no power to:
(i) rule upon or grant any extension, renewal, or continuance of
the Agreement;
(ii) award remedies or relief either expressly prohibited by the
Agreement or under circumstances not permitted by the
Agreement; or
(iii) grant provisional or temporary injunctive relief before
rendering the final decision or award.
(g) Unless the Parties otherwise agree, all Disputes regarding or
related to the same topic or event that are subject to arbitration
at one time shall be consolidated in a single arbitration
proceeding.
(h) A Party or other person involved in an arbitration under this
Section 5 may join in that arbitration any person other than a Party
if:
(i) the person to be joined agrees to resolve the particular
dispute or controversy in accordance with this Section 5 and
the other provisions of this Schedule applicable to
arbitration; and
(ii) the panel determines, upon application of the person seeking
joinder, that the joinder of that other person will promote
the efficiency, expedition, and consistency of the result of
the arbitration and will not unfairly prejudice any other
Party to the arbitration.
(i) The arbitration hearing shall be held within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after the appointment of the
panel. Upon request of either Party, the panel shall arrange for a
transcribed record of the arbitration hearing, to be made available
to both Parties.
(j) The panel's final decision or award shall be made within [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the hearing. That
final decision or award shall be made by unanimous or majority vote
or consent of the arbitrators constituting the panel, shall be
deemed issued at the place of arbitration and shall be made in U.S.
dollars. The panel shall issue a reasoned written final decision or
award based on the Agreement and Texas law; the panel may not act
according to equity and conscience or as an amicable compounder or
apply the law merchant.
(k) The panel's final decision or award may include:
(i) recovery of general damages to the extent permitted by the
Agreement (but not consequential, exemplary or punitive
damages); or
(ii) injunctive relief in response to any actual or threatened
breach of the Agreement or any other actual or threatened
action or omission of a Party under or in connection with the
Agreement.
(l) The panel's final decision or award shall be final and binding upon
the Parties, and judgment upon that decision or award may be entered
in any court having jurisdiction over either or both of the Parties
or their respective assets. The Parties specifically waive any
right they may have to apply
3
or appeal to any court for relief from the preceding sentence or
from any decision of the panel made, or any question of law arising,
before the final decision or award; and the Parties shall not
dispute nor question the validity of such award before any
regulator or other authority in any jurisdiction where enforcement
action is taken by the Party or Parties in whose favor the award
was rendered. If any decision by the panel is vacated for any
reason, the Parties shall submit that Dispute to a new arbitration
in accordance with this Section 5.
(m) Each Party shall pay one-half of the arbitrators' fees and expenses,
and shall bear all of its own expenses in connection with the
arbitration. The panel has the authority, however, to award
recovery of all costs and fees (including attorneys' fees,
administrative fees and the panel's fees and expenses) to the
prevailing Party in the arbitration.
6. RECOURSE TO COURTS.
Nothing in this Schedule limits the right of either Party to apply to a court or
other tribunal having jurisdiction to:
(a) enforce this Schedule, including the agreement to arbitrate in this
Schedule;
(b) seek provisional or temporary injunctive relief so as to avoid
irreparable damage or maintain the status quo, until a final
arbitration decision or award is rendered or the Dispute is
otherwise resolved; or
(c) challenge or vacate any final arbitration decision or award that
does not comport with Section 5 of this Schedule.
7. SUBMISSION TO JURISDICTION.
Each Party irrevocably submits to the jurisdiction of the federal courts of
the United States and the state courts of Texas located in Fort Worth. Each
Party waives any defense or challenge to that jurisdiction based on lack of
personal jurisdiction, improper venue, or inconvenience of forum.
8. CONFIDENTIALITY.
The proceedings of all negotiations, mediations, and arbitrations shall be
privately conducted. The Parties shall keep confidential all conduct,
negotiations, documents, decisions, and awards in connection with those
proceedings under this Schedule.
9. EXCLUSIVE REMEDY.
Other than those matters involving injunctive or other extraordinary relief
or any action necessary to enforce the award of the arbitrator, the parties
agree that the provisions of this schedule are a complete defense to any
suit, action or other proceeding instituted in any court or before any
administrative tribunal with respect to any dispute or the provision of the
base services or variable services by sabre. Nothing in this exhibit
prevents the parties from exercising their rights to terminate the agreement
in accordance with article x of the agreement.
10. CONTINUED PERFORMANCE; ESCROW ACCOUNT.
Unless (a) sabre has commenced a proceeding or has presented a claim for
nonpayment by customer of amounts due under the agreement, and customer does
not promptly pay all amounts in dispute into the escrow account referred to
below, or (b) the agreement has been terminated in accordance with article x,
sabre will continue to provide the services during any dispute resolution
proceedings (whether informal or formal) commenced pursuant to this exhibit
and customer will continue to perform its obligations (including the making
of payments to sabre) in accordance with the agreement. Up to the maximum
amount in dispute, any disputed payment will be paid pending resolution of
the dispute into an escrow account that is structured by agreement of the
parties or, if agreement cannot be reached, as directed by the mediator or
arbitrator, as the case may be, engaged in accordance with this
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exhibit. Any such escrow account will provide for the payment of interest on
the amounts deposited therein, and the parties (if the dispute is resolved
informally) or the mediator or arbitrator, as the case may be (if the dispute
is resolved formally), will make the determination regarding distribution of
such deposited amounts plus interest. If customer fails to escrow disputed
payments as required by the agreement, sabre may apply to any court of
competent jurisdiction to seek injunctive relief for such failure and will
have the right to terminate the agreement in accordance with article x of the
agreement.
11. OTHER.
(a) U.N. CONVENTION.
The enforcement of any arbitral award will be in accordance with
and governed by the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards.
(b) LANGUAGE.
Negotiations, mediations and arbitrations will be conducted in the
English language.
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EXHIBIT B
NOTICE
If to Sabre:
Sabre Inc.
MD 4204
0000 Xxxx Xxxxxx Xxxx.
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: President
With a copy to:
Sabre Inc.
MD 4204
0000 Xxxx Xxxxxx Xxxx.
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: General Counsel
If to TCY:
Xxxxxxxxxxx.xxx LP
0000 Xxxxxxxxxx Xxxx, XX 1400
Xxxx Xxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: President
With a copy to:
Xxxxxxxxxxx.xxx LP
0000 Xxxxxxxxxx Xxxx, XX 1400
Xxxx Xxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
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EXHIBIT C
ADDITIONAL OPTIONAL SERVICES
The Services currently described on the Schedules, which are not initially
selected by TCY on Schedule XIV.
1
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
SCHEDULES
ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Note: Certain of the Services and Tasks described below will not be relevant
to TCY's business and operations. To the extent that such Services and Tasks
are not relevant, then Sabre will not perform such Services or Tasks for TCY,
and TCY will not be required to pay for such Services or Tasks.
Schedule I
TAX ADMINISTRATION SERVICE (MANDATORY)
DESCRIPTION OF SERVICE: Tax Administration is defined as tax research and
planning and tax return preparation in compliance with tax statutes and
regulations. The Tasks to be performed under Tax Administration Service
(Mandatory) consist of:
A. U.S. federal and state income tax compliance
i. tax return preparation and tax payment processing
ii. representation on audits and contests
iii. management of development of tax and accounting systems to minimize
compliance costs
B. U.S. federal and state income tax accounting and reporting
i. income tax account analysis
ii. tax provision accounting
C. U.S. federal and state income tax planning and projects
i. research and planning to assess impact of taxes on operations and on
proposed transactions
ii. legislative and regulatory monitoring
D. Sales/use, excise, property and other transaction taxes
i. Tax return preparation and property tax rendition filing
ii. Tax payment processing
iii. Audits and contests
iv. Research and planning
v. Monitor legislation and regulations effecting the business
vi. Tax accounting
E. International
i. Manage tax return preparation and VAT collection calculations
ii. Foreign audits and contests
iii. Research and planning
iv. Monitor legislation and regulations effecting the business
v. Tax accounting
F. Systems Development
i. Develop design specifications for the new financial and logistics
systems to automate the tax functions
ii. Assisting in the developments of semi-automated accounting systems
iii. Maintenance and modifications of tax systems
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule II
HUMAN RESOURCES GOVERNMENT REPORTING SERVICE (MANDATORY)
DESCRIPTION OF SERVICE: Tasks to be performed to support TCY's compliance with
U.S. Federal human-resources-related reporting statutes. The Tasks to be
performed consist of:
A. Summary Plan Descriptions
B. Pension Annual Reporting and Disclosure, maintaining ERISA administration
requirements, plan documentation, research and analysis, ADA
accommodations, and Affirmative Action / Department of Labor / EEO
administration.
C. State unemployment compensation administration, including responding to
State and Federal government agencies (including State unemployment
compensation claims, and claims regulated by State and Federal equal
employment opportunity agencies); processing unemployment compensation
claims; monitoring charges to TCY unemployment accounts in each State; and
administering rates assigned by States.
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule III
ACCOUNTING SERVICES
CASH ACCOUNTING SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Reconciliation of domestic bank accounts
B. Identification and resolution of cash irregularities and cash reporting
issues
C. Primary internal control relative to cash
D. Recognition of foreign currency adjustments
E. Investigation, resolution and subsequent clearing of reconciling items
RECEIVABLES SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Receivable Billing/Accounting
i. Xxxx posting to the receivable sub-ledger system
ii. Cash applications
iii. Coordination of settlement with Airlines Clearing House, or IATA
Clearing House
iv. Account reconciliation, and receivable servicing
PAYROLL PRODUCTION SERVICE
DESCRIPTION OF SERVICE: Responsible for the calculation and distribution of
payroll checks and incentive compensation checks. The Tasks to be performed
consist of:
A. Regular Checks - Processing of regular paychecks on a weekly, bi-weekly,
and semi-monthly basis
B. Remote Checks - Processing of remote or supplemental paychecks for
adjustments
X. Xxxxx Pay Adjustments to be completed during the next regular pay period
D. Garnishments
E. Stop payments for lost or stolen paychecks
F. Bonuses and Special Payments - Processing of special payments that require
development changes
PAYROLL TAX ACCOUNTING SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Payroll Taxes - Charges for the collection, remittance and accounting for
payroll taxes and other moneys collected from employee paychecks. The
cost is driven by the number of payroll checks that are processed in one
calendar year.
B. Payroll Tax Reporting - Charges for reporting for Federal and State
withholding and unemployment taxes. The costs are driven by the number of
states worked.
C. Payroll Tax Year End - Charges for the year end production of annual wage
and tax statements. The cost is driven by the number of W-2s issued in
one calendar year, and the number of states worked.
PAYROLL CUSTOMER SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
A. Employment Verification - Completion of the wage and employment
information requested by lending institutions.
B. W-2 Reissues.
C. Employment Receivables - The administration and collection of balances
from employees for advances, uniforms, and salary overpayments, check
distribution special handling.
NOTE that certain related fees are paid directly by TCY, its employees, or
relevant lending institutions.
DISBURSEMENTS PRODUCTION SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Usage of EDI Mailbox and translator, Federal Express
B. Other EDI
C. Audit and Processing of contract based payments
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule IV
HUMAN RESOURCES ADMINISTRATION
DESCRIPTION OF SERVICE: The Service consists of:
Employment relations administration generally, but excluding mandatory Services
described on Schedule II, and further consisting of the following Tasks:
SERVICE DESCRIPTION
Providing and Managing Health and Welfare Benefits
Management and Professional Recruitment
College Recruitment
Support Staff Recruitment
Managing Employee Information and Documentation
Managing Employee Performance and Terminations
Compensating Employees and Job Leveling
Bonus Commission Programs
Providing Retirement Benefits
Training Management
Maintain Human Resources Information System (HRIS)
Providing and Managing Workers Compensation
Facilitating Management Career Moves
Developing Admin / Interpreting Corporate Policy
Assisting AMR Executives - Executive administration
Evaluating Employees and their Performance Progress
Relocating Employees
Admin and Cost Control
Managing employees' employment-related complaints
Executive compensation administration
Family Medical Leave Act Application Processing and Program Administration
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule V
Medical Services
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A) Employee Assistance Program Services (as required by the Federal Drugfree
Workplace Act)
B) Full TCY Employee Access to all Sabre Preventive Healthcare Programs
C) Ergonomics Support Including Workstation Design And Other OSHA Required
for all Ergonomics Services
D) ADA-Related Ergonomic Accommodations Work
E) Occupational Healthcare Litigation Support
F) Full Access to all Sabre Travel Medicine Databases, and Applicable
Occupational Healthcare Record Keeping (but not OSHA Log Record keeping).
G) New Hire Physicals--Non-Safety Sensitive
H) Clinic - Employee Visit
I) Employee Drug and Alcohol Testing
K) Other services will be provided to TCY on a by-request basis
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule VI
FINANCIAL SERVICES
General Corporate Finance Services
DESCRIPTION OF SERVICE: As more fully described below, Sabre Finance Department
will provide TCY centralized finance services. The Tasks to be performed by
Sabre consist of:
A. Cash Management Strategies
B. Consolidated Financial Planning and Analysis
C. Business Insurance Administration
D. Financial Systems Services
E. Strategic Planning and Corporate Development Advisory Services
F. Investor Relations
BANKING/CASH MANAGEMENT SERVICE
DESCRIPTION OF SERVICE: Sabre shall provide TCY centralized cash management
services which are substantially the same as the cash management services
provided by Sabre to TCY immediately prior to the Effective Date. The Tasks to
be performed by Sabre consist of:
A. Cash Management Strategies
i. optimize the utilization of the daily cash activity
ii. maintain separate bank accounts for TCY and, in connection
therewith, open and close bank accounts, as required
iii. design, develop and implement enhanced, practical, cost-efficient
cash management processes
iv. negotiate for new improved bank services
v. review bank services and fees
B. Cash Mobilization
i. initiate properly approved wire transfers
ii. collect all available bank account balances
iii. fund all disbursements accounts
iv. coordinate daily with investment services resources for all cash
excess/shortfalls
v. generate, as needed, advance to and/or from Sabre
C. Coordination of Letters of Credit
D. Pass-Through expense of banking service charges
E. Cash Investment - transfer excess cash to investment services resources,
which will invest such cash in a manner consistent with the investment
objectives utilized by the investment services resources for TCY as of the
date of this Agreement.
CORPORATE FINANCE SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Coordination of Financing Decisions
B. Risk Assessment and Management
C. Financing Administration
BUSINESS INSURANCE ADMINISTRATION SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Negotiation of Insurance Policy Terms and Premiums
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
B. Contract Review and Revisions
C. Claims Handling
D. Calculation for the allocation of insurance premiums to TCY
TCY may determine, in its discretion, whether to obtain its own business
insurance policies or to participate in one or more business insurance policies
obtained or arranged by Sabre. To the extent that TCY elects (by agreement with
Sabre) to so participate, TCY shall pay a portion of the premiums for the
insurance policies in which it participates based on an allocation methodology
agreed upon by the Parties for those policies.
FINANCIAL SYSTEMS SERVICE
DESCRIPTION OF SERVICE: Tasks consist of providing usage of Financial Services
systems applications, including SAP.
STRATEGIC PLANNING
Strategic planning services.
INVESTOR RELATIONS
Investor relations services
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule VII
GENERAL CORPORATE SERVICES
SABRE SUPPLY MANAGEMENT SERVICE
DESCRIPTION OF SERVICE: The Supply Management Service will be performed in
accordance with a corresponding power of attorney granted to Sabre. The Tasks
to be performed are needs identification, bid proposals, awarding process,
ordering process, delivery process, payment and maintenance process for:
A. Hardware Purchases including Personal Computers, Telecommunications
Equipment, and Printers
B. Software Purchases and Licensing Agreements
C. Telecom Services and Maintenance Contracts
CORPORATE SECURITY SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Investigations
B. Consultation & Representation
C. Ticket Loss Prevention
D. Audits & Tests
E. Instruction
F. Administration
SAFETY ADMINISTRATION SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Ground Safety
i. Employee Injury and Illness
ii. Ergonomic Program
iii. Safety Audits
iv. OSHA Administration
v. Industrial Hygiene Program
vi. Safety Training
B. Environmental Safety
i. Environmental Assessments
ii. Environmental Training
iii. Legal & Lobbying
iv. Environmental Regulations
v. Technical Assistance and Support
vi. Program and Professional Development Services
vii. Waste Minimization Programs
viii. Recycling Programs
GENERAL SERVICES DEPARTMENT
DESCRIPTION OF SERVICE: The Services (which are not merely Tasks) to be
performed will consist of:
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
1.1 Services
A. Archives
B. Reserved Parking Permits Administration
C. Mail Services includes mailings by USPS below 1,000 pieces
D. USPS Postage for orders exceeding 1,000 pieces not covered by Mail
Services
E. HDQ Telephone Directory
i. Maintain Corporate Mailing Lists
ii. Maintain Company Regulations
F. Administration of contracts executed between Sabre and subcontractors for
Services not performed by Sabre employees
GENERAL SERVICES' PASS-THROUGH EXPENSES SERVICE
DESCRIPTION OF SERVICE: Sabre pays Subcontractors for the following Services
(which are not merely Tasks). The list below represents a pass-through of
expenses allocable to TCY.
1.2 Services
A. Employee Shuttle Service DFW/HDQ/DFW
B. Paper Supplier
C. Installation and Management of Copiers
D. Printing and Mailing Services
E. Cafeteria and Vending Services
CPIV and Trinity
[Buildings Served: Sabre is offering General Services to TCY at the following
locations:
CPI CPIV
CORPORATE CARD SERVICE
A. Administration of Corporate Card
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule VIII
LEGAL SERVICES
DESCRIPTION OF SERVICE: Tasks consist of rendering professional legal services
for matters in the following areas:
A. Labor and Employment Law
i. Labor Litigation
ii. Equal Employment Opportunity Commission Claims (EEOC)
iii. Department of Human Rights Claims (DHR)
iv. Railway Labor Act Issues and Claims
v. OSHA Issues and Claims
vi. Environmental Issues and Claims
vii. Immigration Filings
viii. Garnishments
ix. ERISA Issues
B. Litigation
i. Commercial Litigation
ii. Antitrust Litigation
iii. EC Regulation
iv. CRS Issues
v. Federal Aviation Administration Issues and Claims (FAA)
vi. Subpoenas
C. Corporate Law
i. Contract Review and Preparation
ii. Mergers and Acquisitions
iii. Corporate Registrations
iv. Corporate and Securities law compliance
v. Real Estate
vi. Bankruptcy
vii. Intellectual Properties
viii. Customs
D. Corporate Finance
i. Public Financing
ii. Private Financing
iii. SEC Regulations
E. General Regulatory Matters
F. Government Affairs Service
i. U.S. Federal Government Regulations
ii. State and Local Government Relations
iii. Coordination of Sabre Lobbying Efforts at all levels of Government
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule IX
AUDIT SERVICE
DESCRIPTION OF SERVICE: Conducting internal audits and coordinating external
audit functions.
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule X
FACILITIES SERVICES
DESCRIPTION OF SERVICE: The Tasks to be performed at the current TCY locations,
and other locations agreed to by the parties, will consist of:
A. Facilities Support
i. Space Programming Studies
ii. Manage Design Professionals
iii. Cost Estimations/Refinement for New Projects
iv. Evaluate Requests for Proposals (RFPs)
v. Value Engineering
vi. Project Feasibility Studies
vii. Bidding and Contract Negotiations
viii. Project Management
ix. Contract Audit Control
x. Project Close Out
xi. HDQ Space Planning
B. Properties Support
i. Rate and Change Evaluation
ii. Tenant and Landlord Liaison
iii. Negotiation of New Leases
iv. Negotiation of Additional Services under Leases
v. Property Management
vi. Real Estate Market Analysis
C. Planning and Technical Support
i. Environmental Engineering
ii. Energy Audits
iii. Automation Environment
iv. Pre-Conditioned Air / Ground Power
v. Material Handling Systems
D. Facilities Maintenance Pass-Through Expense
i. Sabre General Services pay Subcontractors providing facilities
maintenance services (e.g., hazardous waste removal, janitorial
services and pest control), for Prices consisting only of a pass-
through of expenses (under the Service Subcontracts) allocable to
TCY.
E. Utilities Management Services
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule XI
CORPORATE COMMUNICATIONS SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Strategic Planning & Counseling
B. Media Relations
C. Marketing Communications
D. Issues Management
E. Project Management
F. Executive Support
G. Internal Communications
H. On-Line Communications
I. Financial Reporting Communications
J. Administration and Clerical Duties
K. Community Relations
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule XII
CORPORATE TRAVEL SERVICES
OTHER AIRLINE (OA) PERSONAL TRAVEL ADMINISTRATION SERVICE
DESCRIPTION OF SERVICE: Sabre will provide administrative support for TCY's
personal travel on Other Airlines (OA). Tasks to be performed consist of:
A. Secure of agreement with Other Airlines (OAs)
i. Draft cover letters
ii. Revise Sabre ID agreement to include the TCY
iii. Negotiate new arrangements with each airline
iv. Conclude and execute revised agreements
B. Contract Maintenance
i. Ongoing negotiations
ii. Secure additional carriers
iii. Conflict resolution with OAs
iv. Contract preparation and filing
C. Administrative Support
i. Provide updates to TCY reference material
ii. Respond to employee inquiries
iii. Prepare PNRs for ticketing
iv. Provide OA with pay-back passes on AA
OTHER AIRLINE (OA) BUSINESS TRAVEL ADMINISTRATION SERVICE
DESCRIPTION OF SERVICE: Sabre will provide administrative support for the TCY's
business travel on Other Airlines (OA). Tasks to perform consist of:
A. Secure Business Travel on Other Airlines
i. Negotiate arrangements with other airlines
ii. Provide other airlines travel on AA
B. Contract Maintenance
i. Process TCY pass requests
ii. Process OA business travel requests
C. Administrative Support
i. Provide updates to the TCY reference manual
ii. Respond to employee inquiries
iii. Prepare PNRs for ticketing
CORPORATE TRAVEL DESK SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Booking of Hotels for Business Travel and Interline Rates
B. Booking for Rental Vehicles for Business Travel at Interline Rates
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule XIII
Executive Office Functions
DESCRIPTION OF SERVICE: Sabre provides executive office support, for its
Subsidiaries (including TCY), in the following areas of executive function:
A. Chief Executive Office
B. Chief Financial Officer
C. Chief Information Officer
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
Schedule XIV
TCY Allocable Percentage for Year 2000
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
