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EXHIBIT 10.28
FIRST AMENDMENT TO HCC PARTICIPANT AGREEMENT
This First Amendment to HCC Participant Agreement is entered into by
and between the HOTEL CLEARING CORPORATION, hereinafter called "HCC", and UTELL
INTERNATIONAL, hereinafter called "Participant", to be effective the 28th day
of June, 1994 (the "First Amendment").
AGREED FACTS
1. HCC and Participant have heretofore entered into an HCC
Participant Agreement dated effective ________________
(hereinafter called the "Participant Agreement").
2. HCC and Participant have mutually agreed to amend the term of
the Participant Agreement and the provisions of the
Participant Agreement relating to the amount and payment of
Participant Commissions (as defined in the Participant
Agreement).
3. HCC and Participant intend for this First Amendment to set
forth in its entirety their agreement to amend the term of the
Participant Agreement and the provisions relating to the
amount and payment of Participant Commissions.
AGREEMENT
FOR AND IN CONSIDERATION of the above stated facts, which are hereby
acknowledged as true and correct, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, HCC and
Participant hereby agree as follows:
1. Section 3.4 of the Participant Agreement is hereby deleted in
its entirety and is replaced with the following:
"3.4 [*]. In consideration of the benefits that [*] will
obtain from [*] processed by [*] through the HCC
System, [*] agrees to [*] certain [*] as hereinafter
provided. Such [*] will be [*] at such times and in
such total amounts as [*] may determine to be
appropriate provided that [*] shall be [*] the [*] (as
hereinafter defined). The [*] payable to [*] shall be
determined by dividing the total number of [*] for all
stockholder [*] for the applicable time period (as
determined by [*]) into the total amount of funds
available [*] (as determined by [*] and after making
allowance for [*], as hereinafter defined) and
*Confidential Treatment Requested
INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST AND HAS BEEN FILED SEPARATELY WITH THE S.E.C.
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[*] by the number of [*] transactions [*] by [*] for
the applicable period. [*] are those amounts due to
[*] pursuant to agreements which require payments [*]
the [*] to [*] as [*] including, but not limited to,
amounts due to [*] and key [*] of [*]."
2. Section 4.1 of the Participant Agreement is hereby deleted in
its entirety and is replaced with the following:
"4.1 Term of Agreement. The initial term of this
Agreement, unless earlier terminated pursuant to the
provisions of this Agreement, shall expire
December 31, 1998. This Agreement will be
automatically renewed and extended for additional
twelve (12) month periods unless, at least thirty
(30) days prior to the expiration of the initial term
or any additional twelve (12) month period, either
party provides written notice to the other of its
decision not to renew and extend."
3. Exhibit D to the Participant Agreement is deleted.
4. This First Amendment shall be and hereby is incorporated into
the Participant Agreement for all intents and purposes and all
terms, provisions and definitions of the Participant Agreement
shall apply.
5. Except for the provisions inconsistent with the terms of this
First Amendment, the Participant Agreement is hereby ratified
and affirmed in all respects.
This First Amendment is effective as of the date stated above and
executed on the dates indicated below.
HOTEL CLEARING CORPORATION
By: /s/ XXXX X. XXXXX, III
-------------------------------
Xxxx X. Xxxxx, III
President
Date:
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UTELL INTERNATIONAL
By: /s/ XXXX XXXX
-------------------------------
Its: President
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Date:
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*Confidential Treatment Requested
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HCC PARTICIPANT AGREEMENT
This Agreement (the "Agreement") is entered into by and between THE
HOTEL CLEARING CORPORATION, a Delaware corporation ("HCC"), and UTELL
INTERNATIONAL, LTD., ("Participant"), to be effective the 20th day of December,
1991.
SECTION 1. DEFINITIONS
1.1 For purposes of this Agreement, the following definitions
shall apply:
(i) Commissionable Reservations. Commissionable
Reservations within a particular time period equals the number of reservations
(both voice and electronic) processed through the HCC System within such time
period that are identified as "commissionable" or "partially commissionable" on
the transaction records provided by Participant to HCC.
(ii) HCC System. The HCC System is an automated
clearinghouse system to provide for the coordination of reservation
information, transfer of hotel reservation commissions and ancillary services
to Subscribers and Participating Properties.
(iii) [*]. [*] are the [*] paid by [*] for [*]
processed [*].
(iv) Participating Entity. A Participating Entity
is an operator of a hotel reservation system that has executed a HCC
Participant Agreement.
(v) Subscriber. A Subscriber is any person or
entity who has executed an HCC Subscriber Agreement and makes reservations with
a Participating Entity. A list of current Subscribers will be provided by HCC
to Participant by the twenty-fifth (25th) of each month.
(vi) Subscriber Commissions. Subscriber
Commissions are the commissions paid by Participant to Subscribers for
reservations made with Participant. Subscriber Commissions will be based on
commission rates provided to HCC by the Participant.
(vii) UltraSwitch. UltraSwitch is a service of The
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Hotel Industry Switch Company ("THISCO"), which has certain common ownership
with HCC, to provide an interface between Subscribers and hotel reservation
systems with the capability to provide immediate room confirmation numbers for
each hotel property participating in UltraSwitch.
SECTION 2. THE HCC SYSTEM
2.1 Duties of HCC. HCC will provide and operate the HCC
System for the use and benefit of Participant and other Participating Entities.
HCC will provide all reasonable and necessary technical support, hardware and
software, and modifications to the HCC System to provide clearinghouse services
to Participant as described below. Upon compliance with the terms of this
Agreement by Participant, HCC will provide the following clearinghouse services
to Participant:
(i) identify Participant (and designated
affiliates and franchisees of Participant) to Subscribers as being a HCC System
Participant through the use of UltraSwitch or other central reservation system
services (and, at the discretion of HCC, by distribution of other promotional
materials), subject to the provisions of Section 5.2;
(ii) provide billing statements for Subscriber
Commissions, Transaction Fees (as defined below) and other fees, costs and
expenses to Participant on a regular (normally monthly) basis as provided in
Section 3 below;
(iii) distribute collected Subscriber Commissions
to the appropriate Subscribers based upon HCC Subscriber Agreements with such
Subscribers;
(iv) provide periodic (normally monthly) reports
to Participant and Subscribers reflecting exceptions to Subscriber Commissions
based upon the data available to HCC through UltraSwitch; and
(v) provide telephone customer support services
from 8:00 a.m. to 8:00 p.m., Eastern time, Monday through Friday, exclusive of
legal holidays.
A description of the currently anticipated procedures to be followed in the
payment process is given on Exhibit "F" attached,
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although the timing and exact details of such procedures as implemented by HCC
in operation of the HCC system may be different due to computer-related and
other operational constraints. Such procedures are subject to change from time
to time as circumstances require or as otherwise determined by HCC.
2.2 Duties of Participant. Participant will cooperate fully with
HCC personnel with respect to the implementation of the HCC System between the
Subscribers and Participant. Participant specifically authorizes HCC to obtain
information concerning reservations made with Participant from the UltraSwitch
system and to use such information (i) as provided in the procedures described
in Exhibit "F" and (ii) as otherwise approved in writing by the Board of
Directors of HCC. Participant agrees to provide HCC all appropriate
reservation information (including all reservations made electronically or by
voice, whether directly to the property or through the use of a central
reservation "800" phone number) no loss often than on a weekly basis. All
information provided by Participant with respect to reservations, Subscribers
and Subscriber Commissions must be complete and accurate to the best of
Participant's ability, and must be inclusive of all the information necessary
to permit HCC to provide the clearinghouse services described in Section 2.1.
The initial information that Participant must provide to HCC is indicated on
Exhibit "A". Because efficient and reliable operation of the clearinghouse
services offered by the HCC System is dependent on the use of data from
transactions carried by UltraSwitch, Participant agrees, with respect to all
interfaces existing between UTELL and the UltraSwitch, to run all of its
electronic reservation transactions through the UltraSwitch system so long as
it is a party to this Agreement.
2.3 Schedule of Implementation of HCC System. HCC will proceed
with the implementation of the HCC System, with a proposed HCC System
activation date of April 1, 1992, but not later than September 30, 1992. For
the purposes of this Agreement, the actual activation date (the "Activation
Date") will be the date that HCC notifies Subscriber that the HCC Board of
Directors has determined that the HCC System is operational and capable of
processing sufficient aggregate transaction volume of the Participating
Entities. HCC will provide Participants with at least thirty (30) days' prior
notice of activation of the HCC System. HCC will provide Participant with
appropriate specifications to assist Participant in preparing for utilization
of the HCC System at least one hundred twenty (120) days prior to the
Activation Date.
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2.4 Modification or Enhancement of the HCC System or Participant
System. HCC may in its sole discretion modify the operation or enhance the
capability of the HCC System, and Participant agrees to cooperate with HCC in
all modifications and enhancements of the HCC System. All significant
modifications or enhancements will require the approval of the Board of
Directors of HCC. If HCC determines that such modification or enhancement is
likely to require Participant to make significant modifications to its central
reservation system (any such modifications to be at Participant's sole
expense), HCC will provide at least ninety (90) days' prior notice to
Participant of such modification or enhancement. If Participant modifies its
central reservation system after the Activation Date and such modification
requires HCC to modify the HCC System, or to provide additional services to
utilize information supplied by Participant as required by Section 2.2,
Participant will pay HCC such additional amount agreed to by the parties based
on HCC's standard consulting rate and all expenses incurred.
SECTION 3. FEES, COSTS, AND PAYMENTS
3.1 Fees. In order to permit HCC to obtain financing to permit
the development of the HCC System, Participant agrees to pay the monthly
contingency fee (the "Contingency Fee") of [*] multiplied by the Monthly Base
Transactions indicated on Exhibit "B". The Contingency Fee will be payable on
the first day of each month for a six (6) month period beginning on the later
of April 1, 1992, or the Activation Date. Provided that the Activation Date
has occurred and limited in duration by the immediately preceding sentence,
Participant's obligation to pay the Contingency Fee is absolute and shall
continue until Participant is capable of and ready to deliver to the HCC System
reservation commission data from at least seventy-five percent (75%) of its
properties in the United States (calculated based on total number of rooms
rather than number of individual hotels) in a regular and timely manner as
contemplated by this Agreement ("Participant Readiness") and continues and
delivers to HCC the volume of reservation commissions required for Participant
Readiness after the Activation Date. At such time, Participant will begin
paying transaction fees ("Transaction Fees") of [*] per Commissionable
Reservation, and upon payment of such Transaction Fees, will be relieved of its
obligations to pay any further Contingency Fees under this section. For the
remainder, if any, of the six (6) month period referred to above, the
Transaction Fees payable by
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Participant will be subject to a minimum monthly Transaction Fee of [*]
multiplied by the Monthly Base Transactions indicated on Exhibit "B".
If Participant Readiness (or the Activation Date, if later) occurs other than
at the beginning of a month, Participant will receive a credit against the fees
otherwise payable by Participant under this Agreement, in the amount of a pro
rata portion of the Contingency Fee paid to HCC for that month, based upon the
number of days in the month following Participation Readiness (or the
Activation Date, if later). HCC may, at its sole discretion, change the
Transaction Fees charged to Participant as provided above, upon ninety (90)
days notice to Participant.
The Board of Directors of HCC will have the right to verify
Participant Readiness (whether through HCC personnel or independent third
parties) and will have the right to modify or adjust the requirements for
Participant Readiness, as long as it makes such determination in a uniform
manner among other Participating Entities. Participant has been informed that
HCC is reliant upon, and the obtaining by HCC of certain critical financing is
dependent upon, Participant's agreement to and performance of Participant's
obligations under this section. Participant acknowledges that the failure of
Participant to meet its payment obligations under this section would
substantially and materially damage the business of HCC and waives any and all
defenses that it may have to the performance of such obligations. Participant
hereby irrevocably consents to having the provisions of this Section 3.1
immediately and fully enforced in a court of law or equity and waives any and
all defenses thereto.
Participant is responsible for collection and payment to HCC of all
such fees that are attributable to Participant and all of Participant's
affiliates and franchises that utilize the HCC System under this Agreement.
3.2 Subscriber Commissions. Participant agrees to make payment to
HCC by wire transfer within seventy two (72) hours of receipt of a billing
statement all Subscriber Commissions, Transfer Fees and other fees, costs, and
expenses shown on billing statements as provided in Section 3.5. Participant
is responsible for collection and payment to HCC of all such fees and
Subscriber Commissions that are attributable to Participant and all of
Participant's affiliates and franchisees that utilize the HCC System under this
Agreement. Payments to Subscribers will be made in appropriate local currency.
*Confidential Treatment Requested
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3.3 Other Fees, Costs and Expenses. Participant also agrees to
pay HCC at its standard consulting rate of $75 per hour plus all expenses
incurred for set up, handling, conversion and other services required for
processing of information transmitted to HCC to satisfy the requirements of
Section 2.2, above, unless a different fee arrangement with respect to such
services is indicated on Exhibit "B". All of such fees must be approved by the
Board of Directors of HCC. Participant is responsible for collection and
payment to HCC of all such fees, costs and other expenses that are attributable
to Participant and all of Participant's affiliates and franchisees that utilize
the HCC System under this Agreement.
3.4 [deleted by amendment]
3.5 Billing Statements. Based upon the information provided HCC
by or with respect to Participant pursuant to Section 2.2, above, HCC will
provide periodic (normally monthly) billing statements detailing (i) Subscriber
Commissions to be paid by Participant for the period covered by such billing
statement; (ii) Transaction Fees to be paid by Participant, based on
Commissionable Reservations for the period covered by such billing statement;
(iii) other fees, costs and additional expenses to be paid by Participant for
the period covered by such billing statement; and (iv) [*] to be paid to [*]
for the most recent quarterly period preceding such billing statement, which
[*] will be [*] included in billing statements only on a quarterly basis.
Items (i) through (iv) may be included on separate billing statements.
*Confidential Treatment Requested
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3.6 Disputed Commissions. HCC will provide Participant and
Subscribers with periodic reports indicated under Section 2.1(v) that will
indicate any exceptions to Subscriber Commissions, based on discrepancies
between information given HCC by Participant compared to other information
available to HCC through UltraSwitch. With respect to all exceptions as to
which Participant provides supporting documentation, HCC will forward such
documentation to the appropriate Subscriber(s), and the Subscribers involved
may pursue such dispute directly with Participant, but HCC will not have any
liability to either Participant or such Subscriber with respect to the
resolution of any disputed commission. No dispute concerning any Subscriber
Commissions will in any way affect or reduce the obligations of Participant to
(i) timely pay all other Subscriber Commissions and (ii) timely pay to HCC all
Transaction Fees and other fees, costs and additional expenses owed by
Participant under this Agreement.
SECTION 4. TERM
4.1 Term of Agreement. The initial term of this Agreement, unless
earlier terminated pursuant to the provisions of this Agreement, shall expire
five (5) years after the date of this Agreement. This Agreement will be
automatically renewed and extended for additional twelve (12) month periods
unless, at least thirty (30) days prior to the expiration of any additional
twelve (12) month period, either party provides written notice to the other of
its decision not to renew and extend.
SECTION 5. TERMINATION
5.1 Termination Upon Default. Upon the occurrence of an Event of
Default (as defined below) by either party and the failure of such party to
cure such default after notice and opportunity to cure as provided by Section
6.3 below, the nondefaulting party may terminate this Agreement at any time.
5.2 Suspension of Status. Upon the occurrence of an Event of
Default by Participant and the failure of Participant to cure such default
after notice and opportunity to cure as provided by Section 6.3 below, then, if
HCC does not terminate this Agreement under Section 5.1, until such time as
such Event of Default is cured HCC shall have the right to suspend the status
of Participant as a Participating Entity and to notify and all Subscribers of
such default and suspension, whether through the UltraSwitch system, central
reservation systems, or otherwise. Upon notification by
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Participant to HCC of any default in payment by any affiliate or franchisee of
Participant of payments due under this Agreement and until notification by
Participant of the cure of such default, HCC shall have the right to suspend
the status of such affiliate or franchise as a Participating Entity and to
notify all subscribers of such default and suspension.
SECTION 6. DEFAULT
6.1 Events of Default. Subject to Section 6.2 below, any one of
the following will be considered an Event of Default:
(i) The failure of either party to pay any amount due hereunder
within the time required;
(ii) The refusal or failure of either party to perform diligently
and in good faith each and every material provision of this Agreement;
(iii) The failure to maintain the system in operable condition;
(iv) The commencement by either party of a voluntary case under
Chapter 11 or 7 of the United States Bankruptcy Code, as from time to time in
effect, the commencement against either party of an involuntary case under said
Chapter 11 or 7, either party seeking relief as a debtor under any applicable
law, other than said Chapter 11 or 7, or any jurisdiction relating to the
liquidation or reorganization of debtors or the modification of the rights of
creditors, the entry of a court order adjudging the party bankrupt or
insolvent, ordering its liquidation or reorganization or assuming custody or
appointing a receiver or other custodian of its property, or its making an
assignment for the benefit of, or entering into a composition with, its
creditors;
(v) The deferral [*] of payment of all [*] as provided in Section
3.4, for more than two (2) consecutive calendar quarters;
(vi) The failure by HCC to have obtained HCC Subscriber Agreements
with respect to at least twelve thousand (12,000) travel agent/reservation
provider locations within thirty-six (36) months following the Activation Date;
*Confidential Treatment Requested
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(vii) The failure by HCC to activate the system by September 30,
1992.
Any such Event of Default shall not relieve the defaulting party from
any of its obligations hereunder, and the non-defaulting party shall, except as
provided in this Agreement, be entitled to whatever remedies at law or in
equity are available to it.
6.2 Force Majeure. It will not constitute an Event of Default if
such event listed in Section 6.1 is caused by or results from acts of God,
fire, war, civil unrest, accident, power fluctuations or outages,
telecommunication fluctuations, outages or delays, utility failures, mechanical
defects, or other events beyond the control of the defaulting party. However,
if any such occurrence results in any of the events described in Section 6.1,
and the same continues for more than thirty (30) consecutive days, either party
may terminate this Agreement by providing notice as required herein.
6.3 Cure Period. Upon the occurrence of an Event of Default, the
non-defaulting party will give written notice to the defaulting party
specifying the alleged default. The defaulting party will then be entitled to
thirty (30) days from receipt of such notice within which to cure such default;
provided, that in the case of a monetary default by Participant, Participant
will only be allowed to cure such default within two (2) business days after
receipt of such notice, by delivering that amount owed to HCC in good funds
into HCC's bank account.
SECTION 7. CONFIDENTIALITY
7.1 Proprietary Information. During the term of this Agreement,
it is acknowledged by Participant and HCC that each will receive confidential
and proprietary information that is the property of the other party. All such
confidential and proprietary information will be marked or otherwise identified
as such and will be treated as confidential and proprietary subject only to
disclosure where required by law. Such designation may be removed by each
party making the designation. Participant acknowledges that it will have no
access to and will not use UltraSwitch software or related property by reason
of this Agreement, and that use of such UltraSwitch services by Participant
would be permitted only under a separate agreement with THISCO. Participant
acknowledges that it will have no access to and will not use the
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HCC System or related property, other than as specifically provided for in this
Agreement, and that such system and related property is confidential and
proprietary property of HCC. HCC acknowledges that the specific information
concerning Participant's reservations, whether processed through the
UltraSwitch system or otherwise provided by Participant to HCC outside of the
UltraSwitch system, is the property of Participant, although Participant
acknowledges HCC may use such information (i) as provided in the procedures
described in Exhibit "F" and (ii) as otherwise approved in writing by the Board
of Directors of HCC, as long as HCC removes any information that indicates the
customer is a customer of Participant. The aggregate data from the HCC System
will become the property of HCC. Any use of HCC service Marks or trade names
by Participant is subject to prior written approval of HCC, provided, that
Participant may describe the HCC System contemplated by this Agreement in its
franchise offering circular and other materials as required by state or federal
law. The provisions of this Section 7.1 will remain binding and in force and
effect as long as such information remains confidential (other than by breach
of this Agreement), notwithstanding the expiration or termination of this
Agreement at any time.
SECTION 8. INDEMNIFICATION
8.1 Indemnification in the Event of Certain Losses. Subject to
Section 9.2, Participant agrees to indemnify and hold harmless HCC and HCC's
affiliates, directors, officers, employees and stockholders (other than
Participant), from and against any losses, claims, liabilities, damages or
expenses (including reasonable attorney's fees) occurring as a result of or
arising out of a material breach of this Agreement on account of Participant's
fault, to the extent not caused by the fault of HCC ("HCC's Losses"). Subject
to Section 9.2, HCC agrees to indemnify and hold harmless Participant, and
Participant's affiliates, directors, officers, employees and stockholders, from
and against any losses, claims, liabilities, damages or expenses (including
reasonable attorney's fees) ("Participant's Losses") occurring as a result of
or arising out of a material breach of this Agreement on account of HCC's fault
to the extent not caused by the fault of Participant. Promptly after receipt
by an indemnified party of notice of the commencement of any action or the
presentation or other assertion of any claim which could result in any
indemnification claim pursuant to this Section 8.1, such indemnified party will
give prompt notice thereof to the indemnifying party and the
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indemnifying party will be entitled to participate therein or, to the extent
that it wishes, assume the defense thereof with its own counsel. If the
indemnifying party elects to assume the defense of any such action or claim,
the indemnifying party shall not be liable to the indemnified party for any
fees of other counsel or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, other than reasonable
costs of investigation and preparation, unless representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. The parties agree to cooperate to the fullest extent
possible in connection with any claim for which indemnification is or may be
sought under this Agreement. Whether or not the indemnifying party elects to
assume the defense of any such action or claim, the indemnifying party shall
not be liable for any compromise or settlement of any such action or claim
effected without its consent (which shall not be unreasonably withheld).
SECTION 9. DISCLAIMER OF WARRANTIES
9.1 Waiver of Warranties. HCC WILL NOT BE RESPONSIBLE OR LIABLE
FOR ANY INACCURACIES IN THE DATA OR THE INFORMATION PROCESSED BY OR THROUGH THE
HCC SYSTEM NOR WILL IT HAVE ANY LIABILITY FOR ANY ACT OR FAILURE TO ACT UNLESS
EXPRESSLY SET FORTH HEREIN, EXCEPT TO THE EXTENT RESULTING FROM HCC'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. ALL WARRANTIES, EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PRODUCT OR
SERVICE OR OTHERWISE, ARE DISCLAIMED BY HCC AND WAIVED BY PARTICIPANT.
9.2 No Consequential Damages. Neither party will be liable to the
other for any consequential damages caused or resulting from any breach of this
Agreement or arising out of the performance of this Agreement, and each party
hereby expressly waives such damages.
SECTION 10. MISCELLANEOUS
10.1 Arbitration of Disputes. Any controversy or claim arising out
of or relating to this contract, or the breach thereof, will be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and
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judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. There shall be a panel of three arbitrators.
Each party will select one arbitrator with thirty (30) days of notice of the
dispute, and the two (2) arbitrators selected shall select a third neutral
arbitrator within thirty (30) days after the second arbitrator is chosen. All
reasonable and necessary costs and fees (including attorney's fees) incurred in
connection with the arbitration will be borne by the losing party or assessed
in the award as otherwise deemed appropriate by the arbitrators. If the demand
for arbitration is initiated by Participant, venue of the arbitration
proceedings will be determined by HCC. If the demand for arbitration is
initiated by HCC, venue of the arbitration proceedings will be determined by
Participant.
10.2 Non-Exclusive Agreement. Each party acknowledges that this is
not an exclusive agreement with respect to reservations commissions
clearinghouse services and that each party may contract with other parties
providing same or similar services.
10.3 Status of Parties. This Agreement will not constitute a
partnership, joint venture or similar arrangement. The parties hereto are
separate and distinct entities independently contracting with each other at
arms length. HCC will not be deemed by this Agreement to be granting a license
to Participant, with respect to UltraSwitch, the HCC System or any software or
service xxxx related thereto, or otherwise, this being a contract for the use
and rendering of services only.
10.4 Assignment. This Agreement is not assignable by HCC or
Participant without the prior written consent of the nonassigning party, and
such consent shall not be unreasonably withheld or delayed.
10.5 Notices. All notices and other communications contemplated
hereby must be in writing (except in the case of electronically transmitted
data) and (a) personally delivered, (b) deposited in the United States mail,
first- class, registered or certified mail, return receipt requested, with
postage prepaid, (c) sent by overnight courier service (for next business day
delivery), shipping prepaid, (d) sent by telecopy with confirmation of receipt
of telecopy to the number indicated, or (e) transmitted directly to the
recipient by electronic data transmission pursuant to arrangements made between
the parties. Such notices and other
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commissions (except in the case of electronically transmitted data) shall be
addressed as follows:
IF TO HCC: IF TO PARTICIPANT:
0000 Xxxxxx Xxxxx Xxxx. 000 Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, III
(if by telecopy to:
(000) 000-0000)
or such persons or addresses as any party may request by notice duly given
hereunder. Except as otherwise specified herein, notices will be deemed given
and received (i) at the time of personal delivery, (ii) if sent by U.S. Mail,
three (3) business days after mailing, (iii) if sent by overnight courier, one
(1) business day after such sending, (iv) if sent by telecopy, upon receiving
of confirmation of receipt of the telecopy at the number indicated, or (v) in
the case of electronically transmitted data, when received.
10.6 Controlling Law. This Agreement will be interpreted pursuant
to the laws of the State of Texas without reference to its conflict of laws
principles. Subject to the agreement to arbitrate and the jurisdiction and
venue provisions set forth in section 10.1 hereof, any action brought relating
to or arising out of this Agreement must be brought in the state or federal
courts situated in the county and state of the residence or principal place of
business of the party against whom the action is brought (or any of them, if
more than one).
10.7 Entire Agreement. This Agreement and the Exhibits attached
hereto constitute the entire agreement between HCC and Participant with respect
to the provision of services under the HCC System, and supersedes and replaces
any and all other agreements and representations, verbal or written, with
respect to the subject matter of this Agreement. There are no representations,
warranties or agreements made or relied upon by either party with respect to
the subject matter of this Agreement that are not contained in this Agreement.
10.8 Successors and Assigns. This Agreement will be binding upon
and will inure to the benefit of the legal representatives, successors and duly
authorized assigns of each party whether
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resulting from merger, acquisition, reorganization or assignment pursuant to
the terms hereof.
10.9 Confidentiality of the Agreement. The parties agree that the
terms and provisions of this Agreement will be kept confidential and shall be
disclosed only to those persons and entities as required by law or as permitted
by the other party hereto. The parties may, however, disclose the existence of
this Agreement to any person or entity.
AGREED to as of the date first written above.
THE HOTEL CLEARING CORPORATION UTELL INTERNATIONAL, LTD.
By: /s/ XXXX X. XXXXX, III By: /s/ XXXX XXXX
----------------------- --------------------------
Xxxx X. Xxxxx, III, Title: President
President -----------------------
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EXHIBIT "A"
Initial Information to be Provided by Participant to HCC
The fields in each commission record are the following:
-Record identifier required validated
-Chain record number required check for duplicates
-Chain/Brand code required validated
-Booking source required validated
-Property ID required validated
-PNR Number optional no checks
-Confirmation number required validated presence
-Cancellation number optional no checks
-Corporate ID number optional no checks
-Subscriber IATA number required validated HCC User
-Group/Guest last name required validated presence
-Group/Guest first name optional no checks
-Status code required validated
-Reason code optional if present, validate
-Arrival date required validated, no future
-Departure date required validated, no future
-Number of nights required validated presence
-Number of rooms required validated presence
-Commissionable revenue required validated, no neg.
-Gross Commission required validated, no neg.
-Adjustment amount required validated presence
-Net Commission due required validate computation
-Currency code required validated
-Comments optional no checks
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EXHIBIT "B"
Participant Fees
1. Contingency Fees and minimum Transaction Fees as provided in
Section 3.1 of the Agreement will be based upon [*] Annual Base
Transactions, or Monthly Base Transactions of [*] Base Transactions
divided by 12).
2. Transaction Fees and other fees, costs and expenses payable
under the Agreement will be paid by Participant by wire transfer from
Participant's bank listed below:
Bank Name:
-------------------------------------------------
Officer Contact:
--------------------------------------------
Other Appropriate Information:
------------------------------
------------------------------------------------------------
------------------------------------------------------------
3. Transaction Fees and other fees, costs and expenses payable
under the Agreement that are listed in the billing statements provided to
Participant by HCC as provided in Section 3.5 of the Agreement will be paid by
Participant to HCC by wire transfer not later than seventy two (72) hours
following receipt of such billing statements. The Contingency Fee will be paid
by Participant to HCC by wire transfer not later than the first business day of
each month during which the Contingency Fee is payable.
*Confidential Treatment Requested
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19
EXHIBIT "C"
Subscriber Commissions
1. Subscriber Commissions are specified in the record field "Net
Commission Due" as described on Exhibit "A".
2. Subscriber Commissions are to be paid by Participant to HCC by
wire transfer from Participant's bank listed below:
[Bank Name]
[Bank Officer]
[Other Appropriate Information]
3. Subscriber Commissions listed in the billing statements
provided to Participant by HCC as provided in Section 3.5 of the Agreement will
be paid by Participant to HCC by wire transfer not less than seventy-two (72)
hours following receipt of such billing statements.
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20
EXHIBIT "D"
[deleted by amendment]
-18-
21
EXHIBIT "E"
DELETED INTENTIONALLY
-19-
22
EXHIBIT "F"
PROPOSED PROCEDURES
(attached)
-20-
