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EXHIBIT 10.2
CONFORMED COPY
SERVICES AGREEMENT
SERVICES AGREEMENT (this "Agreement"), dated as of July 30, 1997, among
Galileo International, L.L.C., a Delaware limited liability company
("Galileo"), United Airlines, Inc., a Delaware corporation ("United"), US
Airways, Inc., a Delaware corporation ("USAW"), and Air Canada, a corporation
incorporated under the laws of Alberta ("Air Canada" and, together with United
and USAW, the "Service Providers").
WHEREAS, the Service Providers have a significant number of sales personnel
and sales offices in the ATS Territory (as hereafter defined), and are very
knowledgeable about the airline distribution business;
WHEREAS, as a result of the Service Providers' significant number of sales
personnel and sales offices in the ATS Territory and their knowledge concerning
the airline distribution business, Galileo desires to enlist the Service
Providers' assistance with certain marketing and other services designed to
assist Galileo in growing the business operations of Apollo Travel Services
("ATS");
WHEREAS, the Service Providers desire to provide such marketing and other
services designed to assist Galileo in growing the business operations of ATS;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained and intending to be legally bound hereby, the
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
"ATS Territory" means (i) the United States of America, including its
overseas territories, commonwealths, trust territories and protectorates, (ii)
Anguilla, Antigua and Barbuda, Bahamas, Barbados, Cayman Islands, Cuba,
Dominica, Dominican Republic, Grenada, Guadeloupe, Haiti, Jamaica, Martinique,
Montserrat, St. Kitts-Nevis, Saint Lucia, St. Xxxxxxx and the Grenadines,
Trinidad and Tobago and Turks and Caicos Islands, and (iii) the Republic of
Mexico.
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"Cost of Carry Factor" means the number resulting from the following
formula: (1 + Cost of Carry Rate)n, where n is the number of years between the
date hereof and the date of any applicable payment made hereunder (adjusted pro
rata for any fraction of a year).
"Cost of Carry Rate" means 8.625%.
"Segments" means net air segments, as determined by Galileo's billing system
in accordance with current practices, in respect of transactions made in the
Galileo System within the ATS Territory by (i) Neutral Travel Providers and
Other Customers that have entered into subscriber agreements with ATS for
Reservations Services (or, following the date hereof, by Neutral Travel
Providers and Other Customers within the ATS Territory that have entered into
subscriber agreements with Galileo for Reservations Services) from which
Booking Fee Revenue is generated which is split between Galileo and ATS, with
respect to NTP Revenue, in accordance with the DSSA between Galileo and ATS, or
which is split between Galileo and ATS, with respect to Other Customer Revenue,
in accordance with the first clause of Section 8.8(a) of the Galileo
International Partnership Agreement (or, following the date hereof, would have
been split between Galileo and ATS, with respect to NTP Revenue, in accordance
with the DSSA between Galileo and ATS or which would have been split between
Galileo and ATS, with respect to Other Customer Revenue, in accordance with the
first Clause of Section 8.8(a) of the Galileo International Partnership
Agreement, had that agreement and that provision, respectively, continued to
have been in effect) and (ii) Other Customers (corporate only) of United, USAW,
or Air Canada utilizing a Customized Product from which Booking Fee Revenue is
generated which is split in accordance with the first clause of Section 8.8(c)
of the Galileo International Partnership Agreement (or, following the date
hereof, which would have been split in accordance with the first Section 8.8(c)
of the Galileo International Partnership Agreement, had that provision
continued to have been in effect). The calculation of net air segments to be
credited to ATS hereunder excludes net air segments in respect of transactions
made in the Galileo System by Other Customers of United, USAW, or Air Canada
utilizing Partner Developed Products. All capitalized terms used in this
definition of the term "Segments" shall be as defined in the Galileo
International Partnership Agreement or the Distributor Sales and Service
Agreement between Galileo and ATS as in effect immediately prior to the date
hereof.
"Transaction Category" means any transaction category, as determined in
accordance with Galileo's customary practices, including, without limitation,
the following transaction categories (together with any transaction categories
that replace the following transaction categories or are substantially similar
thereto): an active confirmed segment input, a passive segment input, an other
segment input, an active confirmed segment cancel, a passive segment cancel, an
other segment cancel, an interactive display transaction, an interactive sell
transaction, an inside availability transaction, a positive acknowledgement
transaction, and a marriage logic transaction.
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"Transaction Category Weighted Average Price" means, with respect to any
applicable Transaction Category during the course of any applicable year, the
weighted average of the published prices for such Transaction Category during
the course of such year, as determined by (i) multiplying each published list
price recorded for such Transaction Category during the course of such year by
a fraction, the numerator of which is the number of days for which such
published price was in effect for such Transaction Category during the course
of such year, and the denominator of which is 365, and (ii) taking the sum of
the resulting numbers.
ARTICLE II
PROVISION OF SERVICES
SECTION 2.01. Provision of Services. Subject to the requirements of
applicable law, each of the Service Providers hereby agrees to use its
expertise with respect to the airline distribution business and its significant
number of sales personnel and sales offices in the ATS Territory to increase
Galileo's competitiveness in the marketplace and generate additional segments
and revenue for Galileo through, but not limited to, the provision, subject to
the reasonable written request of Galileo, of the following services to
Galileo:
(a) Representatives from the marketing divisions of each of Galileo and
such Service Provider shall meet to discuss, coordinate and implement future
marketing strategies related to, but not limited to, the direction of
distribution in the marketplace and the emergence of alternative distribution
channels and technologies (i.e., the internet and other direct access
products).
(b) Representatives of such Service Provider shall assist Galileo by
conducting or participating in meetings and discussions with vendors, including
car, hotel, leisure or marketing or code share air carriers, that participate
or may participate in the Galileo system to strengthen and bolster such
relationships.
(c) Such Service Provider's sales staff shall conduct sales calls
(including joint sales calls with the appropriate Galileo account executive) to
users of the Galileo system throughout the ATS Territory, as mutually agreed
between the parties.
(d) Upon reasonable notice, such Service Provider's marketing personnel
shall participate in Galileo's vendor workshops to be held at various times
throughout the year.
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(e) Certain of such Service Provider's key staff, including sales staff,
shall within the first six (6) months hereof, and annually thereafter, attend a
local one-day overview session regarding the Galileo system.
(f) Such Service Provider and Galileo shall cooperate in exchanging
noteworthy information for inclusion in newsletters produced for and
distributed to travel agencies.
(g) Representatives of such Service Provider shall participate in
Galileo's future global automation conferences to enhance Galileo's global
market presence.
(h) Representative of such Service Provider shall meet with Galileo as
they mutually agree to (i) review the progress of such Service Provider's
performance under this Agreement, (ii) adopt a schedule of meetings and (iii)
consult regarding the appropriate staffing of Service Provider personnel to
perform the Service Provider's obligations under this Agreement.
SECTION 2.02. Designation of United Representative. United hereby
designates Xxxx Xxxxxx as its initial representative for purposes of performing
its obligations under Section 2.01.
ARTICLE III
CONTINGENT PAYMENT FOR SERVICES
SECTION 3.01. Contingent Payment for Services. (a) The payment, if any,
that Galileo shall make to the Service Providers in consideration for the
services described in Section 2.01 shall be based upon an improvement in
Galileo's air booking fee revenue, as measured over a five year period
commencing as of the date hereof, and as calculated below. The revenue
improvement shall be measured utilizing two factors, weighted average annual
air segment growth rate ("Weighted Air Segment Growth Rate") and weighted
average annual price increase rate ("Weighted Air Price Increase Rate").
(b) The Service Providers and Galileo will share in the economic benefit
to Galileo of revenue increases which are (i) above the minimum weighted
average annual air segment growth rate ("Minimum Weighted Air Segment Growth
Rate") and at or below the targeted weighted average annual air segment growth
rate ("Targeted Weighted Air Segment Growth Rate") and revenue increases which
are (ii) above the minimum weighted average annual price increase rate
("Minimum Weighted Air Price Increase Rate") and at or below the targeted
weighted average annual price increase rate ("Targeted Weighted Air Price
Increase Rate"). The Minimum Weighted Air Segment Growth Rate and the Targeted
Weighted Air Segment Growth Rate are 3.4% and 5.4%, respectively. The Minimum
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Weighted Air Price Increase Rate and the Targeted Weighted Air Price Increase
Rate are 2.0% and 4.0%, respectively.
(c) The Service Providers shall receive payments, calculated and paid in
accordance with Sections 3.02 through 3.06 below, which reflect the approximate
economic value of the achievement of the first fifty percent of the range
between (i) the Minimum Weighted Air Segment Growth Rate and the Targeted
Weighted Air Segment Growth Rate and (ii) the Minimum Weighted Air Price
Increase Rate and the Targeted Weighted Air Price Increase Rate, respectively.
Galileo shall retain the approximate economic value of the achievement of the
second fifty percent of such ranges as well as any economic value from the
achievement of a Weighted Air Segment Growth Rate or a Weighted Air Price
Increase Rate which is in excess of such ranges.
SECTION 3.02. Calculation of Segment Growth Payment. (a) The "Segment
Growth Payment" shall be calculated in accordance with the provisions of this
Section 3.02:
(i) Within 60 days of the fifth anniversary hereof (or, in the event
Section 3.04(c) is applicable, within 60 days of the date that is six
months after the fifth anniversary hereof), Galileo shall calculate in
accordance with its customary practices (A) the total number of
Segments recorded in the ATS Territory for the period of twelve months
ending on the date hereof (the "Pre-Closing Year") and for the period
of twelve months ending on each of the first, second, third, fourth
and fifth anniversaries of the date hereof (the "Post- Closing
Years"), and (B) the percentage increase or decrease in the total
number of such Segments for each of the Post-Closing Years in
comparison to the immediately preceding Pre-Closing Year or
Post-Closing Year, as applicable.
(ii) Following the calculations described in clause (i) above, Galileo
shall then weight such percentage increases or decreases by
multiplying such percentage increases or decreases by the
corresponding Weighting Factors set forth on Exhibit 1 hereto. The
sum of the resulting percentages shall constitute the Weighted Air
Segment Growth Rate.
(b) If the Weighted Air Segment Growth Rate is less than or equal to 3.4%,
no Segment Growth Payment shall be made.
(c) If the Weighted Air Segment Growth Rate is greater than or equal to
4.4%, the Segment Growth Payment shall be $100,000,000.
(d) If the Weighted Air Segment Growth Rate is greater than 3.4% but less
than 4.4%, the Segment Growth Payment shall be an amount equal to (i)
$100,000,000
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multiplied by (ii) a fraction, the numerator of which shall be (A) the Weighted
Air Segment Growth Rate minus (B) 3.4%, and the denominator of which shall be
0.01.
SECTION 3.03. Calculation of Air Booking Price Increases. (a) Within 60
days of the fifth anniversary hereof (or, in the event Section 3.04(c) is
applicable, within 60 days of the date that is six months after the fifth
anniversary hereof), Galileo shall calculate the "Price Increase Payment" in
accordance with the provisions of this Section 3.03:
(i) Galileo shall calculate the total number of transactions, by
Transaction Category, associated with the total number of Segments
recorded in the ATS Territory for the Pre-Closing Year.
(ii) Galileo shall then calculate the aggregate revenue in the ATS
Territory for the Pre-Closing Year by multiplying the Transaction
Category Weighted Average Price for each Transaction Category for the
Pre-Closing Year by the total number of transactions, by Transaction
Category, recorded in the ATS Territory in the Pre-Closing Year.
(iii) Galileo shall then determine what the total revenue in the ATS
Territory would have been in each of the Post-Closing Years on a
comparative basis to the Pre-Closing Year by multiplying the
Transaction Category Weighted Average Price for each Transaction
Category for such Post-Closing Year by the total number of
transactions, by Transaction Category, recorded in the ATS Territory
in the Pre-Closing Year.
(iv) Galileo shall then calculate the percentage increase or decrease in
the aggregate revenue in the ATS Territory in each of the Post-
Closing Years by taking the results of the calculations described in
clause (iii) above for each of the Post-Closing Years and dividing
them by the results of the calculations described in clauses (ii) and
(iii) above, as applicable, with respect to the immediately preceding
years, and then subtracting one from the resulting numbers to derive a
percentage increase or decrease.
(v) Galileo shall weight the percentage price increases or decreases
calculated in accordance with clause (iv) by multiplying such
percentage increases or decreases by the corresponding Weighting
Factors set forth on Exhibit 1 hereto. The sum of the resulting
percentages shall constitute the Weighted Air Price Increase Rate.
(b) If the Weighted Air Price Increase Rate is less than or equal to 2.0%,
there shall be no Price Increase Payment.
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(c) If the Weighted Air Price Increase Rate is greater than or equal to
3.0%, the Price Increase Payment shall be $100,000,000;
(d) If the Weighted Air Price Increase Rate is greater than 2.0% but less
than 3.0%, the Price Increase Payment shall be an amount equal to (i)
$100,000,000 multiplied by (ii) a fraction, the numerator of which shall be (A)
the Weighted Air Price Increase Rate minus (B) 2.0%, and the denominator of
which shall be 0.01.
SECTION 3.04. Grace Period for Certain Price Increases. (a) The
provisions of this Section 3.04 shall apply if the published price for any
Transaction Category in the ATS Territory does not increase during the course
of the first six months of the fifth Post-Closing Year.
(b) With regard to any Transaction Category whose published price in the
ATS Territory does not increase during the course of the first six months of
the fifth Post-Closing Year, but whose published price does increase on or
after the first day of the seventh month of the fifth Post-Closing Year but
prior to the first day of the first month of the sixth Post-Closing Year, then
for purposes of Section 3.03(a)(iii) and the definition of the term Transaction
Category Weighted Average Price, such price increase shall be deemed to have
occurred with regard to such Transaction Category on the first day of the
seventh month of the fifth Post-Closing Year.
(c) If the published price for any Transaction Category does not increase
in the ATS Territory during the course of the fifth Post-Closing Year, then the
calculations set forth in Sections 3.02, 3.03, 3.05 and 3.06 shall not be
completed until 60 days (or, in the case of Section 3.06, 65 days) after the
date that is six months after the fifth anniversary hereof. If there is such a
price increase as to such Transaction Category in the ATS Territory during the
six month period following the fifth anniversary hereof, then for purposes of
Section 3.03(a)(iii) and the definition of the term Transaction Category
Weighted Average Price, such price increase shall be deemed to have occurred
with regard to such Transaction Category on the date that is six months prior
to the date on which such price increase actually occurred.
(d) All other calculations set forth in this Agreement with regard to
Transaction Categories whose published prices in the ATS Territory do increase
during the first six months of the fifth Post-Closing Year shall be unaffected
by the provisions of this Section 3.04.
SECTION 3.05. Calculation of Adjusted Services Payment. The sum of (i) the
Segment Growth Payment calculated in accordance with Section 3.02 and (ii) the
Price Increase Payment calculated in accordance with Sections 3.03 and 3.04
shall constitute the "Total Services Payment". The Total Services Payment
shall be multiplied by the Cost of
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Carry Factor, and the product of such calculation shall constitute the
"Adjusted Services Payment".
SECTION 3.06. Interim Statements; Adjusted Services Payment Statement;
Disputes; Payment of Adjusted Services Payment. (a) Within 60 days of each of
the first four anniversaries hereof, Galileo shall calculate, and shall deliver
to the Service Providers (for informational purposes only), a written statement
(each such statement, an "Interim Statement") setting forth Galileo's
preliminary calculation of the Weighted Air Segment Growth Rate for the
preceding year and the Weighted Air Price Increase Rate as of the end of the
preceding year. In no event shall any Service Provider be entitled to dispute
any of the calculations set forth on an Interim Statement.
(b) Within 65 days of the fifth anniversary hereof (or, in the event
Section 3.04(c) is applicable, within 65 days of the date that is six months
after the fifth anniversary hereof), Galileo shall deliver to the Service
Providers a written statement (the "Adjusted Services Payment Statement")
setting forth Galileo's calculation of the Adjusted Services Payment.
(c) Disputes. (i) Subject to clause (ii) of this Section 3.06(c), the
Adjusted Services Payment Statement delivered by Galileo to the Service
Providers shall be deemed to be and shall be final, binding and conclusive on
the parties hereto.
(ii) The Service Providers may dispute any amounts reflected on the
Adjusted Services Payment Statement to the extent such disputed amounts
affect the calculation of the Adjusted Services Payment; provided, however,
that the Service Providers shall have notified Galileo in writing of each
disputed item, specifying the amount thereof in dispute and setting forth, in
reasonable detail, the basis for such dispute, within 15 business days of
Galileo's delivery of the Adjusted Services Payment Statement to the Service
Providers. Galileo and the Service Providers shall attempt in good faith to
resolve the matter in dispute. If Galileo and the Service Providers,
notwithstanding such good faith effort, shall have failed to resolve the
matter or matters in dispute within 15 business days after receipt by Galileo
of the Service Providers' written notice of dispute, Galileo and the Service
Providers shall submit the items remaining in dispute for resolution to an
independent accounting firm of international reputation mutually acceptable
to, and independent of, Galileo and the Service Providers (such accounting
firm being referred to herein as the "Independent Accounting Firm"), which
shall, within 45 business days after such submission, determine and report
to, and independent of, Galileo and the Service Providers upon such remaining
disputed items, and such report shall be final, binding and conclusive on the
parties hereto. The fees and disbursements of the Independent Accounting
Firm shall be allocated among Galileo and the Service Providers in the same
proportion that the aggregate amount of such disputed items so submitted to
the Independent Accounting Firm that is unsuccessfully disputed by Galileo,
on the one
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hand, or the Service Providers, on the other hand (as finally determined by
the Independent Accounting Firm), bears to the total amount of disputed items
so submitted.
(iii) In acting under this Agreement, the Independent Accounting Firm shall
be entitled to the privileges and immunities of an arbitrator.
(d) Cooperation. For purposes of complying with the terms set forth
herein, each party shall (i) cooperate with and promptly make available to the
other parties and their respective auditors and representatives, all
information, records, data, auditors' working papers, and access to its
personnel, (ii) permit access to its facilities and (iii) permit the other
party and its auditors and representatives to make copies of all information,
records, data and auditor's working papers, in each case as may be reasonably
required in connection with the analysis of the Adjusted Services Payment
Statement, the calculation of the Adjusted Services Payment and the resolution
of any dispute(s) thereunder.
(e) Adjusted Services Payment. Within 5 business days of the earliest of
(i) the date that is 15 business days after the delivery of the Adjusted
Services Payment Statement pursuant to the provisions set forth in Section
3.06(b) hereof if such Adjusted Services Payment Statement is not disputed by
the Service Providers, (ii) the resolution of all disagreements with respect to
the Adjusted Services Payment Statement directly by Galileo and the Service
Providers and (iii) the issuance of the report of the Independent Accounting
Firm, Galileo shall pay to each of the Service Providers in immediately
available funds to accounts designated in writing by the Service Providers not
later than two business days prior to the date of such payment a pro rata
portion of the Adjusted Services Payment, if any, in proportion to their
respective former percentage interests in ATS immediately prior to the date
hereof. For purposes of any such payment, the Adjusted Services Payment shall
be recalculated to give effect to the Cost of Carry Factor for the period
between the delivery of the Adjusted Services Payment Statement and the actual
date of payment.
SECTION 3.07. Change in Galileo Pricing Methodology. In the event that,
between the date hereof and the fifth anniversary hereof, there is a
fundamental change in Galileo's pricing methodology such that the provisions of
this Article III cannot be implemented in the manner currently intended by the
parties hereto, they shall negotiate in good faith with a view to amending the
provisions of this Article III in order to reflect such fundamental change. In
the absence of any agreement among the parties with regard to any such
amendments, the provisions of this Article III shall be applied in a manner
designed to effectuate, to the greatest possible extent, the parties' original
intentions.
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ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Representations and Warranties. Each of the parties hereto
represents and warrants that this Agreement has been duly authorized, executed
and delivered by such party and constitutes a legal, valid and binding
obligation of such party, enforceable against it in accordance with the terms
of this Agreement.
SECTION 4.02. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
facsimile, telegram or telex or by registered or certified mail (postage
prepaid, return receipt requested) or by a nationally recognized overnight
courier service to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 4.02):
(i) if to Galileo:
Galileo International, L.L.C.
0000 X. Xxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X'Xxxxx, Esq.
(ii) if to United:
United Air Lines, Inc.
0000 X. Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx X. "Jake" Brace, III
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with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(iii) if to USAW:
US Airways, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxx
with a copy to:
US Airways, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxx, Esq.
(iv) if to Air Canada:
Air Canada
C.P. 14,000/P.O. Xxx 00,000
Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxx, Esq.
with a copy to:
Osler, Xxxxxx & Harcourt
1 First Canadian Place
000 Xxxx Xxxxxx Xxxx 00xx Xxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxx
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SECTION 4.03. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated by this Agreement are not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to the
fullest extent possible.
SECTION 4.04. Term of Agreement. The provisions of this Agreement (other
than Articles I and IV) shall terminate and be of no further force and effect,
automatically and without any required actions of the parties hereto, on the
fifth anniversary of the date hereof; provided, however, that (i) the
provisions of Article II hereof shall terminate on the date on which Galileo
ceases to be a party to a marketing cooperation and sales representation
agreement with each of United and USAW, but in no event earlier than the third
anniversary hereof, (ii) the provisions of Article III shall terminate on the
date that all payments to be made thereunder are made (or the date on which the
parties agree that no such payment is required to be made), and (iii) the
parties may extend the provisions of any other provision of this Agreement
beyond the fifth anniversary hereof pursuant to an instrument in writing signed
by all of the parties hereto.
SECTION 4.05. Default; Cure Period; Remedies. (a) Upon a breach of any of
the covenants set forth in this Agreement by any of the Service Providers, such
Service Provider shall use its reasonable efforts to cure such breach within 30
days of receipt of written notice of such breach from Galileo.
(b) Upon a breach of any of the covenants set forth in this Agreement by
Galileo, Galileo shall use its reasonable efforts to cure such breach within 30
days of receipt of written notice of such breach from any of the Service
Providers.
(c) Galileo acknowledges that its sole and exclusive remedy for the breach
by any Service Provider of its obligations pursuant to Article II (other than a
breach resulting from the wilful misconduct or gross negligence of any Service
Provider) shall be specific performance.
(d) Notwithstanding anything to the contrary in this Section 4.05, no
Service Provider will be deemed to be in breach of its obligations under this
Agreement so long as any Service Provider is performing its obligations
hereunder.
SECTION 4.06. Confidentiality. Each of the parties hereto shall keep
confidential any information with respect to any of the parties hereto provided
in connection
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with this Agreement that is not otherwise generally available to the public,
except as may be required by applicable law.
SECTION 4.07. Entire Agreement; Assignment. This Agreement (including the
Exhibits, which are hereby incorporated herein and made a part hereof for all
purposes as if fully set forth herein) constitutes the entire agreement among
the parties with respect to the subject matter hereof and supersede all prior
agreements and undertakings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof; provided, however, that to
the extent there is a conflict between any provision of this Agreement as it
relates to United and the terms of the Marketing Cooperation and Sales
Representation Agreement, dated as of July 30, 1997, between Galileo and United
(the "United Sales Representation Agreement"), the terms of the United Sales
Representation Agreement shall govern. This Agreement shall not be assigned by
operation of law or otherwise.
SECTION 4.08. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 4.09. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in that state.
SECTION 4.10. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect
in any way the meaning or interpretation of this Agreement.
SECTION 4.11. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
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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, L.L.C.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President,
Legal and General Counsel
UNITED AIR LINES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Financial Analysis and Controller
US AIRWAYS, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President,
Finance & CFO
AIR CANADA
By: /s/ Xxx Xxxxxxxx
----------------------------------------
Name: Xxx Xxxxxxxx
Title: Senior Vice President, Finance
and Chief Financial Officer
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EXHIBIT 1
Weighting Factors
Post-Closing Year Weighting
1 24%
2 22%
3 20%
4 18%
5 16%
