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Exhibit 10.9
RIGHTS WAIVER AGREEMENT
dated as of
_____ __, 1997
(this "Agreement")
between
KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N.V. (KLM), _______________,
_________________,
(hereinafter "KLM")
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 KLM
are referred to herein
as a "PARTY", and Galileo and
KLM 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), KLM 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, KLM 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 KLM's
waiver of the Revenue Receipt Rights shall be US$2,800,000 (the "Initial
Payment") which is payable 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 KLM the sum of US$4,000,000
(collectively, the "Anniversary Payments").
ARTICLE III
REPRESENTATIONS AND WARRANTIES
As an inducement to the Parties to enter into this Agreement, KLM 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 KLM 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 KLM 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 KLM
SECTION 4.01. Further Action. KLM 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 KLM 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 KLM.
ARTICLE V
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. A 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
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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 "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
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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-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 or her 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 or her 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. 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) shall be borne by the Party losing such
arbitration.
(b) This Section 6.01 shall in no way affect the right of any Party to
seek such interim relief, and only such relief, as may be required to maintain
the status quo in aid of the arbitration in any court of competent jurisdiction.
ARTICLE VII
GOVERNING LAW
SECTION 7.01. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (other than its
rules of conflicts of laws).
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
GALILEO INTERNATIONAL PARTNERSHIP
By:_____________________________________
Name:
Title:
KONINKLIJKE LUCHTVAART
MAATSCHAPPIJ N.V. (KLM)
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
