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