Exhibit 10.29(a)
MCI TELECOMMUNICATIONS CORPORATION
SECOND AMENDMENT TO THE MASTER AGREEMENT FOR MCI ENHANCED SERVICES
AGREEMENT No. ___________________ Date: September 10, 1997
with:
Galileo International, L.L.C.
0000 X. Xxxxxxxx Xxx
Xxxxxxxxx, XX 00000
This Second Amendment, made as of the above date, (the "Amendment"), is entered
into by and between MCI Telecommunications Corporation, a Delaware corporation
("MCI"), having a principal place of business at XXX Xxxxxx Xxxxx Xxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000-0000 and Galileo International, L.L.C., formerly doing
business as Galileo International Partnership ("Galileo") with offices at 0000
X. Xxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx 00000.
MCI and Galileo have entered into the Master Agreement for MCI Enhanced Service
dated April 2, 1996, (the "Master Service Agreement") under which MCI has
agreed, in exchange for volume commitment with minimum charges, to make
available for Galilee's use, certain services including by reference MCI CPE
Service, management of assets, installation, and maintenance of machinery,
equipment, other personal property, software. Galileo agrees to pay for
Equipment and Services set forth in this Second Amendment (including Schedule
No. 5 below) and the Master Agreement under the terms set forth herein. Now
therefore, MCI and Galileo agree as follows:
EXCEPT FOR THE TERMS FOUND SECTION 3, TITLED PAYMENT OF MCI INVOICES, SECTION 5.
TITLED NO OFFSET, SECTION 10, TITLED TAXES, SECTION 12 TITLED INDEMNIFICATION,
SECTION 14, TITLED ASSIGNMENT, SECTION 15, TITLED ASSIGNMENT BY MCI, SECTION 17
TITLED DEFAULT, AND SECTION 19, TITLED REMEDIES, IN THE EVENT OF A CONFLICT
BETWEEN THIS AMENDMENT AND THE MASTER SERVICE AGREEMENT, OR ANY OTHER WRITTEN OR
ORAL AGREEMENT BETWEEN MCI AND GALILEO CONCERNING THE SUBJECT MATTER HEREIN, THE
TERMS AND CONDITIONS OF THE MASTER SERVICE AGREEMENT SHALL TAKE PRECEDENCE.
1. The last sentence of Section 1 to the Master Services Agreement shall be
deleted.
2. Section 4.2 to the Master Services Agreement shall be deleted and the
following new Section 4.2 shall be inserted in its place;
4.2 ESA Schedules. Each MCI Enhanced Service provided under this
Agreement shall have a corresponding ESA Schedule specifying the applicable
rates, discounts and other terms and conditions on which MCI will provide
such MCI Enhanced Service. Except as expressly set forth in this Second
Amendment (including ISA Schedule No. 5 below), to the extent that the
terms and conditions of any other ESA Schedule are inconsistent with the
terms and conditions of the Master Agreement, the ESA Schedule shall govern
with respect to the corresponding MCI Enhanced Service.
3. The following new Section 16.11 shall be added to the Master Service
Agreement:
16.1.1 Notice. Any notice or other communication required to be given to
the other part under this Agreement shall be given in writing, in the
English language and either (1) delivered in person, (2)sent by United
States certified or registered mail, postage prepaid, or (3) sent by an
overnight courier service, to the following addresses:
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If to MCI:
MCI Telecommunications Corporation
0 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Legal Affairs
With a copy to:
MCI Telecommunications Corporation
000 X. Xxxxxxxx Xxx.
Xxxxxxx, XX 00000
Attention: CNA Legal Affairs-Director
If to Galileo:
Galileo International, L.L.C.
0000 X. Xxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Purchasing Manager
The address for notice may be changed by giving written notice in
accordance with this Section. If mailed in accordance with this Section,
notice shall be deemed given three (3) days after mailing. If sent by an
overnight courier service, notice shall be deemed given one (1) day after
deposit with the courier service.
4. Except for the Certificate dated August 9, 1996, Schedule No. 5, titled MCI
Telecommunications Master Payment Agreement is hereby deleted in its
entirety and replaced with the following. Equipment leased under the terms
and conditions of the deleted Schedule No. 5 shall be governed by the terms
and conditions of the new Schedule No. 5.
SCHEDULE NO. 5
Pursuant to the terms of this Schedule No. 5, MCI will, within the payment term
(as hereinafter defined) of this Schedule No. 5 provide to Galileo the certain
machinery, equipment, other personal property (the "Equipment") listed in the
Equipment Schedule attached hereto and incorporated by reference (the "Equipment
Schedule"). Capitalized terms used and not defined herein shall mean and refer
to the corresponding items on the Equipment Schedule.
1. TERM:
This Schedule No. 5 shall be effective as of the above date, provided MCI
accepts this Schedule No. 5 in writing and shall continue as long as the
Master Services Agreement is in effect. The payment term of this Schedule
No. 5 (the "Payment Term") shall be defined in the Equipment Schedule and
shall continue for the number of months set forth therein, unless such
term has been extended or otherwise modified in a writing executed by MCI
and Galileo. Galileo's execution of the Equipment Schedule shall evidence
its binding commitment of acceptance of the Equipment described therein
upon the terms and conditions of this Schedule No. 5 and the Equipment
Schedule. Equipment not listed on the original Equipment Schedule shall be
provided pursuant to the terms of this Schedule No. 5 only upon mutual
agreement of the parties evidenced by the execution of additional Equipment
Schedules signed by an officer of MCI and an authorized representative of
Galileo.
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2. PAYMENT OF MCI INVOICES:
Unless otherwise agreed, all amounts due to supplied Equipment shall be
billed and paid in U.S. Dollars. Galileo shall pay, within in thirty (30)
calendar days after receipt of MCI's invoice, a payment or use of the
Equipment. Each monthly payment shall be billed at least thirty (30)
calendar days in advance of the actual due date in order for Galileo to
meet the due date specified in the prior sentence. Failure of MCI to
invoice Galileo in a timely manner for any amounts due hereunder shall not
be deemed a waiver by MCI of its rights to payment therefor. Such payments
shall be subject to Section 5 below.
3. ORDER AND ACCEPTANCE OF EQUIPMENT, SOFTWARE:
Galileo has agreed to the selection of all of the Equipment, Software and
Services identified on the Equipment Schedule and approves the
manufacturer, supplier or licenser thereof (the "Supplier(s)"). As soon as
practicable after the date on which the Equipment is delivered, Galileo
will execute an acknowledgment of delivery of each delivered Equipment
through a mutually agreeable electronic form.
4. DISCLAIMER:
GALILEO ACKNOWLEDGES THAT (A) MCI REPRESENTS THAT THE SIZE, DESIGN,
CAPACITY OF THE NETWORK AND THE MANUFACTURER OF THE EQUIPMENT HAVE BEEN
PROVIDED BY MCI BASED UPON INFORMATION AND REQUIREMENTS PROVIDED BY
GALILEO; (B) MCI IS NOT A MANUFACTURER, DEALER, OR DISTRIBUTOR OF ANY
EQUIPMENT; (C) NO MANUFACTURER OR SUPPLIER OR ANY OF THEIR REPRESENTATIVES
IS AN AGENT OF MCI OR AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF
THIS SCHEDULE NO. 5 AND (D) MCI'S WARRANTY OBLIGATIONS, IF ANY, WITH
RESPECT TO THE EQUIPMENT ARE SET FORTH IN THIS SCHEDULE NO. 5. EXCEPT AS
SPECIFICALLY SET FORTH IN THIS SCHEDULE NO. 5, MCI MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, AS TO ANY EQUIPMENT. MCI SPECIFICALLY DISCLAIMS ANY
AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THIS WRITING SHALL, IN NO WAY, RESTRICT GALILEO FROM SEEKING ALTERNATIVE
SUPPLIERS OF SUCH EQUIPMENT AS GALILEO SPECIFIES UNDER ITS OWN NORMAL
BUSINESS PRATICES AND FOR WHICH IT ENTERS INTO AN AGREEMENT INDEPENDENT OF
THIS SCHEDULE NO. 5. NO REPRESENTATION BY ANY SUPPLIER(S) SHALL IN ANY WAY
AFFECT GALILEO'S DUTY TO PAY THE PAYMENTS (AS DEFINED IN THE EQUIPMENT
SCHEDULE) AND PERFORM ITS OBLIGATIONS UNDER THIS SCHEDULE NO.5.
5. NO OFFSET:
GALILEO'S OBLIGATIONS TO PAY ALL AMOUNTS UNDER THIS SCHEDULE NO. 5 SHALL BE
ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY SET-OFF,
COUNTERCLAIM, ABATEMENT, REDUCTION, RECOUPMENT, INTERRUPTION OR DEFENSE FOR
ANY REASON WHATSOEVER, INCLUDING DEFECTS OR FAILURE IN, LOSS OF USE OR
POSSESSION OF, DISCONTINUANCE OF THE EQUIPMENT, SOFTWARE OR SERVICES. THE
PAYMENTS UNDER THIS SCHEDULE NO. 5 CANNOT BE PREPAID BY GALILEO UNLESS
AGREED IN WRITING BY MCI.
THIS AMENDMENT AND GALILEO'S OBLIGATIONS HEREUNDER WILL SURVIVE UNMODIFIED,
ANY AMENDMENT, MODIFICATION, TERMINATION OR CONCLUSION OF MASTER SERVICE
AGREEMENT, EXCEPT IN THE EVENT OF A PROPER TERMINATION OF THE MASTER
SERVICES AGREEMENT BY GALILEO PURSUANT TO SECTION 8.3 OF THE MASTER
SERVICE'S AGREEMENT, THIS AMENDMENT SHALL ALSO TERMINATE.
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6. TITLE TO AND LOCATION OF EQUIPMENT AND SOFTWARE:
(a) Title to each item of Equipment shall remain with MCI or its assigns at
all times and Galileo shall have no right, title or interest therein except
as expressly set forth in this Schedule No. 5. Galileo, at its expense,
will keep the Equipment free and clear of all claims, liens and
encumbrances, other than those which result from acts of MCI or its
assigns.
(b) The equipment shall be delivered to the location specified in the
Equipment Schedule or to such locations otherwise directed in writing by
Galileo to MCI. Once installed at a location, Galileo may request MCI in
writing to relocate, displace or move the Equipment. Such relocation,
displacement or move shall be at the charges set forth in the Master
Service Agreement and below, if any. In no event shall Galileo use any
other entity to relocate, displace or move the Equipment without the prior
written consent of MCI.
Galileo agrees to pay the monthly amount specified in the Equipment
Schedule during each month of the Payment Term for the use of the Equipment
as of the installation date in the Equipment Schedule. It is agreed by the
parties that the monthly charge for all Equipment identified on the
Equipment Schedule has been determined based upon the expected installation
date and location for each piece of Equipment identified in the Equipment
Schedule. Within thirty days from the last installation date identified in
the Equipment Schedule, the monthly amount shall be adjusted based upon any
changed in MCI's costs resulting from the difference between the expected
installation date and location and the actual installation date and
location of such Equipment.
7. USE OF EQUIPMENT; INSPECTION:
During the Payment Term, MCI, Galileo or Galileo's customer may possess and
use the Equipment in accordance with this Schedule No. 5 free and clear of
any claims arising by, through or under MCI, provided that Galileo is in
compliance with the terms of this Schedule No. 5. MCI shall have the
right, upon reasonable prior notice to Galileo and during regular business
hours, to inspect and service the Equipment.
8. FURTHER ASSURANCES:
MCI is authorized to file financing statements (with respect to the
Equipment and this Schedule No. 5), at the expense of MCI, signed only by
MCI or signed by MCI on behalf of Galileo, as Galileo's attorney in fact,
with respect, only, to this matter under this Schedule No. 5. Any such
filings shall not be deemed evidence of any intent to create a security
interest under the Uniform Commercial Code. At the expiration or
termination of this Schedule No. 5, subject to Galileo's payment of all
amounts due or return of the Equipment to MCI as described herein, all such
filed financing statements shall be released at MCI's expense. Galileo
agrees to promptly notify MCI in writing of any change in Galileo's
financial standing or corporate or business name or in the location of its
principal place of business.
9. EVENT OF LOSS:
If any item of Equipment is lost, stolen, destroyed or otherwise rendered
permanently unfit or unavailable for use from any cause whatsoever (an
"Event of Loss") after its delivery to Galileo, Galileo shall promptly
notify MCI. MCI shall replace the item of Equipment in a commercially
reasonable manner. MCI shall be responsible for insuring the Equipment,
whether through itself or through a commercial insurance carrier. DESPITE
AN EVENT OF LOSS, GALILEO'S OBLIGATIONS TO PAY ALL AMOUNT UNDER THIS
AMENDMENT SHALL CONTINUE TO BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE
SUBJECT TO ANY SET-OFF, COUNTERCLAIM, ABATEMENT, REDUCTION, RECOUPMENT,
INTERRUPTION OR DEFENSE FOR ANY REASON WHATSOEVER, INCLUDING MCI'S FAILURE
TO REPLACE THE EQUIPMENT.
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10. TAXES:
(a) With the single exception of point 10(b); Galileo shall timely pay all
assessments, license fees, taxes (including sales, use excise, ad valorem,
stamp, documentary and other taxes) and all other governmental charges,
fees, fines, or penalties whatsoever, whether payable by MCI or Galileo, on
or relating to the Payments, Equipment, Software or Services, or the use,
xxxxxxxxxxxx, xxxxxx, shipment, transportation, delivery, ownership or
operation thereof, and on or relating to this Schedule No. 5; excluding,
however, MCI's net income taxes or fees, fines or penalties due solely to
the negligence of MCI. Applicable sales and use taxes shall be billed by
MCI subject to Section 3, hereof, and paid with the Payments unless Galileo
provides evidence of direct payment authority or an exemption certificate
valid in the state where the Equipment and/or Software is located.
(b) Galileo agrees that it will not list or report any Equipment for
property tax purposes. MCI or its assigns will list, report and pay the
property taxes.
11. LATE CHARGES:
TIME IS OF THE ESSENCE. A charge on any Payments or other sums due
hereunder which are past due shall accrue at the rate of twelve percent
(12%) per annum, or if such rate exceeds the maximum rate allowed by law,
then at such maximum rate, and shall be payable on demand.
12. INDEMNIFICATION: MCI and Galileo agree to indemnify each other and each of
their respective employees, officers, directors, and agents for any damages
arising out of or relating to personal injury, death or property damage
incurred by the other arising out of the indemnifying parties acts,
omissions or breach of its obligations hereunder provided, however, the
party seeking indemnification shall promptly notify the indemnifying part
of any such claims, liabilities, actions, suits or proceedings so as not to
prejudice the indemnifying party's ability to defend such claims,
liabilities, actions, suits or proceedings. In the event the failure of
the part seeking indemnification to promptly notify the indemnifying part
prejudices the defense of any such claim, liability, action, suit or
proceeding, the indemnifying part shall be relieved of any obligation under
this section to provide such indemnification.
MCI agrees to defend, indemnify and hold Galileo, its owners, officers and
employees, harmless against any liability or claim that any Equipment, or
component thereof, is in violation of any U.S., European Community or
Canadian patent, copyright, or trademark and MCI will pay resulting costs,
damages and attorney's fees finally awarded, provided that (1) Galileo
promptly notifies MCI of any such claim; (2) Galileo, at MCI's expense,
provides MCI with all reasonable information and assistance necessary to
defend or settle such liability or claim; and (3) MCI has sole control of
the defense and related settlement negotiations. If such liability or
claim occurs or, in MCI's opinion, is likely to occur, Galileo agrees to
permit MCI, at MCI's option and expense, either to procure for Galileo the
right to continue using the Equipment in question or replace or modify the
same so that it becomes non-infringing and provides a reasonably similar
level of service, as is possible under the circumstances. MCI shall have
no obligation to defend Galileo or to pay any costs, damages or attorney's
fees for any claim based upon the use of the Equipment with products or
services obtained independently of MCI, or based upon the use of the
Equipment, or any component thereof, unless such combination or use has
been suggested by MCI to Galileo as set forth in a manual, marketing
collateral or other document specifically provided by MCI to Galileo. This
indemnity shall apply to the use of all Equipment identified on an executed
Equipment Schedule, except to the extent there is a conflicting indemnity
provision in the Equipment Schedule for a particular make, model or type of
Equipment, the indemnity in the applicable Equipment Schedule shall apply
to such Equipment in lieu of the one above.
This section states the entire obligation of MCI with respect to the
infringement of any proprietary rights.
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13. REPRESENTATIONS AND WARRANTIES:
Galileo and MCI represent and warrant to the other that as of the date of each
Equipment Schedule and delivery of the Equipment:
(a) Galileo has adequate power and capacity to enter into this Second
Amendment, including this Schedule No. 5, the Equipment Schedule, the
acknowledgment of delivery of the Equipment and any other documents
required to be delivered in connection with this Schedule No. 5
(collectively, the "Documents"), Galileo's execution, delivery and
performance of the Documents have been duly authorized by all necessary
corporate or partnership action and constitute valid, legal and binding
agreements, enforceable in accordance with their terms; there are no
proceedings presently pending or threatened against Galileo which will
impair its ability to perform under this Schedule No. 5; and all
information supplied to MCI by Galileo is complete, accurate and not
materially misleading.
(b) MCI or its agents and representatives hereby assert that during the term of
this Schedule No. 5 and each Equipment Schedule that MCI or its agents or
representatives will enforce the manufacturers' and licensers' warranties
and MCI shall hold harmless Galileo from MCI's failure to use reasonable
efforts to enforce such warranties.
(c) MCI or its agents and representatives hereby assert that so long as Galileo
shall not be in default of any of the provisions of this Schedule No. 5 or
Equipment Schedule or the Master Agreement, MCI or its agents and
representative will not disturb Galileo's quiet and peaceful possession of
the Equipment and Galileo's unrestricted use thereof for its intended
purposes.
(d) The Equipment and Software shall only be used in Galileos trade or
business, in accordance with applicable law.
(e) The product(s) identified in the Equipment Schedule that will record,
store, process and present calendar dates falling or on after January 1,
2000 in the same manner and with the same functionally and performance
levels as did such product(s) on or before December 31, 1999, product(s)
functionality and performance levels will not be degraded in anyway by the
introduction of records containing or combining records and/or logic before
December 31, 1999 and/or on or after January 1, 2000. In the event that
the identified products are not as described in this paragraph, Galileo's
sole and exclusive remedy and MCI's sole obligation shall be the repair or
replacement of the products In the event that the products cannot be
repaired or replaced, then MCI shall accept return of the product(s) and
release Galileo of its obligations hereunder with respect to any further
payment for such returned Equipment. This Section 13(e) shall apply to all
Equipment identified on an executed Equipment Schedule, unless there is a
conflicting provision in the Equipment Schedule relating to Year 2000
capabilities of a particular make, model or type of Equipment in which case
the Year 2000 provision of the applicable Equipment Schedule shall apply to
such Equipment in lieu of the terms of this Section 13(e). IN NO EVENT
SHALL MCI BE UNDER ANY OBLIGATION TO PROVIDE ADDITIONAL EQUIPMENT, PURSUANT
TO THIS AGREEMENT IF MIC, IN ITS SOLE DISCRETION, DETERMINES THAT SUCH
EQUIPMENT IS NOT COMPLIANT WITH THE REPRESENTATIONS IDENTIFIED IN THIS
SECTION 13(E).
14. ASSIGNMENT:
EXCEPT AS OTHERWISE PROVIDED HEREIN, AND IN SECTION 15 BELOW, NEITHER PARTY
MAY, WIHOUT THE OTHER PARTY'S PRIOR WRITTEN CONSENT, BY OPERATION OF LAW OR
OTHERWISE, (A) ASSIGN, TRANSFER, PLEDGE, ENCUMBER OR OTHERWISE DISPOSE OF
THIS SCHEDULE, NO. 5, OR THE EQUIPMENT OR ANY INTEREST THEREIN, OR (B)
SUBLEASE OR LEND THE EQUIPMENT OR PERMIT THIS EQUIPMENT TO BE USED BY
ANYONE OTHER THAN GALILEO OR GALILEO'S EMPLOYEES; PROVIDED, HOWEVER, THAT
GALILEO MAY ASSIGN ALL, BUT NOT LESS THAN ALL, OF THE EQUIPMENT TO GALILEO,
INC. IN CONJUNCTION WITH AN INITIAL PUBLIC OFFERING (PO) OR TO AN ENTITY
NOT A
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COMPETITOR OF MCI THAT IS CONTROLLED BY, CONTROLS OR IS UNDER COMMON
CONTROL WITH GALILEO, INCLUDING BUT NOT LIMITED TO A SUCCESSOR ENTITY
("AFFILIATE"), PROVIDED. FURTHER (1) GALILEO, INC. OR SUCH AFFILIATE HAS
ON THE DATE OF SUCH ASSIGNMENT, AND SHALL MAINTAIN AT ALL TIMES AFTER
ASSIGNMENT, A NET WOTH (EXCLUDING INTERCOMPANY BALANCES) EQUAL TO OR
GREATER THAN FOUR TIMES MINIMUM PAYMENTS REMAINING UNDER THIS SCHEDULE NO.
5; (LL) GALILEO, INC. OR SUCH AFILIATE SHALL ASSUME PURSUANT TO AN
AGREEMENT AGREEABLE TO MCI ANY AND ALL OF GALILEO'S RIGHTS AND OBLIGATIONS
UNDER THIS SCHEDULE NO. 5; (LLL) SUCH ASSIGNMENT SHALL NOT RELEASE GALILEO
OF ANY CLAIM WHICH MCI HAS AGAINST GALILEO; AND (LV) GALILEO RETAINS
UNINTERRUPTED POSSESSION AND CONTROL OF THE EQUIPMENT.
15. ASSIGNMENT BY MCI:
UPON NOTIFICATION TO GALILEO, MCI MAY ASSIGN, SELL OR ENCUMBER ALL OR ANY
PART OF THIS SCHEDULE NO. 5, THE EQUIPMENT AND THE PAYMENTS AND OTHER
AMOUNTS DUE HEREUNDER. ANY SUCH ASSIGNEE SHALL HAVE ALL OF THE RIGHTS, BUT
NONE OF THE OBLIGATIONS, OF MCI UDNER THIS AMENDMENT, AND GALILEO SHALL NOT
ASSERT AGAINST ANY SUCH ASSIGNEE ANY DEFENSE, COUNTERCLAIMS OR SET-OFF
WHICH GALILEO MAY HAVE AGAINST MCI. Any such assignment (a) shall be
subject to Galilee's right to possess and use the Equipment pursuant to
Sections 7, and 13; and (b) shall not release any of Mica's obligations
hereunder or any claim which Galileo has against MCI.
16. RETURN OF EQUIPMENT:
Upon expiration of the payment terms in the Equipment Schedule, Galileo, at
its own risk and expense, will immediately allow MCI to have the Equipment
deinstalled and returned to MCI in the same condition as when delivered,
ordinary wear and tear excepted. If upon expiration of the payment terms
in the Equipment Schedule, MCI does not arrange the deinstallation, pick
up, or warehousing of the Equipment for return within 45 days of such
expiration, Galileo may, at MCI's expense, arrange such deinstall, packing
and shipping of the Equipment to MCI's Reno Distribution Center at 0000
Xxxxx Xx., Xxxx, Xxxxxx 00000, using industry standards for such
deinstallation and shipment.
17. DEFAULT
Either party shall be in default under this Schedule No. 5 upon the
happening of any of the following events or conditions (each, an "Event of
Default"): (i) Either party fails to perform or breaches any other term,
provision, representation or warranty contained in this Schedule No. 5, and
such failure continues for thirty (30) days after written notice, or (ii)
the rejection or revocation of acceptance of this Schedule No. 5 or any
Equipment, by Galileo thereto; or (iii) the dissolution, termination of
existence or discontinuance of business, or insolvency, business failure,
or failure to pay debts as they mature; or (iv) the appointment of a
receiver or assignment for the benefit of creditors of any substantial part
of property, or the commencement of any proceedings under any bankruptcy,
insolvency, reorganization or arrangement laws by or against Galileo or
MCI, and if commenced against Galileo or MCI, such proceedings are not
vacated within sixty (60) days.
18. PAYMENT DEFAULT
Galileo shall be in default under this Schedule No. 5 upon Galileo's
failure to make any Payment when due under this Schedule No. 5 and such
failure continues for twenty (20) business days after receipt of written
notice thereof by MCI ("Event of Default").
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19. REMEDIES
Upon the occurrence of any Event of Default identified in Sections 17 or 18
above, and at any time thereafter, MCI may, without any further notice, do
any one or more of the following in its sole discretion: (i) terminate this
Schedule No. 5; (ii) personally, or by its agents, taken immediate
possession from Galileo of any or all items of Equipment wherever found and
for this purpose enter upon Galileo's premises where any item of Equipment
is located and remove such items of Equipment with due process of law, and
free from all claims by Galileo, including but not limited to claims for
storage fees or for any data or information remaining in or accompanying
any such repossessed Equipment, and (iii) declare all future payments,
together with all other sums then due and payable hereunder (including, but
not limited to, accrued and unpaid payments, late charges, indemnity
amounts, legal fees and costs), to be immediately due and payable without
any presentment, demand or protest (all of which are hereby waived by
Galileo).
The defaulting party shall be liable for , and reimburse the other for, all
reasonable and necessary legal fees and all commercially reasonable costs
and expenses incurred by the other as a result of an Event of Default
hereunder or the exercise of its remedies.
No remedy referred to in this Section is intended to be exclusive, but each
shall be cumulative and in addition to any other remedy referred to above
or otherwise available at law or in equity.
20. SURVIVAL/SEVERABILITY:
All indemnities and assumptions of liability shall continue in full force
and effect notwithstanding the expiration or termination of any Payment
Term. Any provision of this Schedule No. 5 which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability, without
invalidating the remaining provisions hereof. Such remaining provisions
shall be construed to effectuate the intent of the parties as set forth
herein.
21. NOTICES, PARTIES:
All notices or demands required or permitted hereunder shall be given to
the parties, as provided in Section 16.1.1 titled Notice of the Master
Service Agreement.
22. CONSTRUCTION:
This Schedule No. 5 shall in all respects be governed by and construed in
accordance with the laws of the State of Illinois. The titles of the
Sections of this Schedule No. 5 are for convenience only and shall not
define or limit any of the terms or provisions hereof. Galileo
acknowledges that MCI would not enter into this Schedule No. 5 unless the
laws of the State of Illinois applied hereto. All parties hereby submit to
the non-exclusive jurisdiction of any Federal or state court in the State
of Illinois in any action or proceeding arising out of or relating to this
Schedule No. 5, waives all objections to venue or based on inconvenience of
forum with respect to any, such court and agreed that all claims in respect
to such action or proceeding may be heard and determined in any such court.
23. FINANCING, SECURITY INTEREST:
In the event that this Schedule No. 5 is deemed to constitute a secured
transaction, Galileo grants to MCI a first priority security interest in
the Equipment and any additions, attachments, upgrades, accessions,
repairs, modifications, replacements thereto and proceeds thereof,
including insurance proceeds, to secure Galileo's payment of the Payments
and all other payment obligations when due, and Galileo's performance of
all of the terms and conditions of this Schedule No. 5.
24. NO ACCORD AND SATISFACTION:
No payment by Galileo or receipt by MCI of a lesser or greater amount than
the Payments specified in the Equipment Schedule shall be deemed to be
other than on account of the Payments, nor shall any
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endorsement or statement on any check or letter accompanying any check or
payment be deemed an accord and satisfaction. MCI may accept any such
check or payment without prejudice to MCI's right to recover the balance of
Payments or any other amount then due and owing hereunder or to pursue any
other remedy provided in this Schedule No. 5.
25. ENTIRE AGREEMENT, AMENDMENTS AND WIVERS:
This Schedule No. 5 and the Equipment Schedule executed by MCI and Galileo
constitute the entire agreement between MCI and Galileo with respect to the
Equipment, its use, the Payments and other amounts due hereunder, and the
Software, Services, and Fees, and supersede all prior proposals,
communications and agreements, both written and oral, between the parties.
NO TERM OR PROVISION OF THIS AMENDMENT OR ANY SCHEDULE MAY BE CHANGED,
WAIVED, AMENDED OR TERMINATED EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BOTH
MCI AND GALILEO, except that MCI may insert the serial numbers of any
Equipment into the applicable Equipment Schedule.
Either parties failure at any time to require strict performance under any
provisions of this Schedule No. 5 shall not waive or diminish the others
right thereafter to demand strict performance. Waiver of any Event of
Default shall not be a waiver of any other or further Event of Default.
GALILEO HEREBY ACKNOWLEDGES THAT IT HAS READ, RECEIVED, RETAINED A COPY OF, AND
UNDERSTAND THIS AMENDMENT, AND AGREES TO BE BOUND BY ALL OF ITS TERMS AND
CONDITIONS UPON MCI SIGNING AND RETURNING SUCH COUNTER SIGNED COPY TO GALILEO.
IN WITNESS WHEREOF, MCI and Galileo have each caused this Amendment, including
the terms of the Master Payment Schedule No. 5 identified herein, to be duly
executed as of the date first above written.
Accepted at MCI's office:
MCI Telecommunications Corporation Galileo International, L.L.C.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
(Signature) (Signature)
For:
Xxx XxXxxxx Xxxxx X. Xxxxxxx
(Printed Name) (Printed Name)
V.P. Finance President & CEO
(Title) (Title)
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MCI GLOBAL RESOURCES, INC.
By: Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: V.P.
Date: 9/30/97
MCI/Galileo International - Confidential
10
MCI TELECOMMUNICATIONS CORPORATION
EQUIPMENT SCHEDULE
TO
SECOND AMENDMENT TO THE MASTER AGREEMENT FOR MCI ENHANCED SERVICES,
SCHEDULE NO. 5
1. DESCRIPTION OF THE EQUIPMENT:
---------------------------------------------------------------------------------------------------------------------------------
Site No. Site Description Serial Number
(if available)
---------------------------------------------------------------------------------------------------------------------------------
1 American Airlines (2) Motorola 6520 Router(s)
0000 Xxxxx Xxxxx
Xxxxx, XX 00000
2 - 35 Next 34 Sites and Equipment Descriptions are
identified on the Document "Galileo Roll-up".
"Galileo Roll-up" is attached hereto and
incorporated by reference.
---------------------------------------------------------------------------------------------------------------------------------
2. PAYMENT TERM: 36 months.
3. MONTHLY PAYMENT FOR USE OF THE EQUIPMENT: $12,391.42
4. THE TERMS AND PROVISIONS OF SCHEDULE NO. 5 (OTHER THAN TO THE EXTENT THAT
THEY RELATE SOLELY TO OTHER SCHEDULES OR EQUIPMENT LISTED ON OTHER SCHEDULES)
ARE HEREBY INCORPORATED BY REFERENCE AND MADE A PART HEREOF. GALILEO PERMITS
MCI TO INSERT SERIAL NUMBERS OF EQUIPMENT WHEN DETERMINED BY MCI.
5. GALILEO'S EXECUTION OF THIS EQUIPMENT SCHEDULE SHALL EVIDENCE ITS BINDING
COMMITMENT OF ACCEPTANCE OF THE EQUIPMENT DESCRIBED ABOVE AND BY REFERENCE,
UPON THE TERMS AND CONDITIONS OF SCHEDULE NO. 5. GALILEO WILL BEGIN MAKING THE
MONTHLY PAYMENT FOR USE OF THE EQUIPMENT WITHIN THIRTY DAYS OF ITS ACCEPTANCE OF
THIS EQUIPMENT SCHEDULE.
6. ACCEPTANCE OF THIS SCHEDULE SHALL CAUSE GALILEO'S PAYMENT OBLIGATION UNDER
MASTER PAYMENT AGREEMENT NO. 01740926 TO CEASE AFTER SEPTEMBER 30TH, 1997.
ANY PAYMENT OBLIGATION INCURRED BEFORE SEPTEMBER 30, 1997 SHALL CONTINUE TO BE
DUE AND PAYABLE. PAYMENT OBLIGATIONS UNDER MASTER PAYMENT AGREEMENT 01740926
SHALL NOT CEASE IF THIS SCHEDULE IS NOT EXECUTED BY SEPTEMBER 30, 1997.
MCI TELECOMMUNICATIONS CORPORATION GALILEO INTERNATIONAL, L.L.C.
By Xxxxxx X. Xxxxx By Xxxxx X. Xxxxxxx
for
Printed Name Xxx XxXxxxx Printed Name Xxxxx X. Xxxxxxx
Title V.P. Finance Title President and CEO
Date 12-2-97 Execution Date: September 10, 1997
MCI/Galileo International - Confidential
11
----------------------------------------------------------------------------------------------------
Router MCI Equipment
SITE Type Install Date Cost
----------------------------------------------------------------------------------------------------
American Airlines Motorola 6520 Router 7/2/96 A $ 7,329.07
4000 North Xxxxx Motorola 6520 Router 7/2/96 $ 7,329.07
Xxxxx
XX
00000
Xxxx X'Xxxxx
000-000-0000
----------------------------------------------------------------------------------------------------
Choice Hotels Motorola Vanguard 300 FRAD 7/2/96 A $ 2,876.64
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx
XX
00000
Xxxxxxx Xxxxxx
000-000-0000
----------------------------------------------------------------------------------------------------
Galileo Data Center HP Workstation 10/10/96 A $46,249.81
0000 Xxxxx Xxxxxxxx Xxx Motorola 6520 Router 10/10/96 A $ 8,253.70
Englewood Motorola 6560 Router 8/8/96 A $15,679.30
CO Motorola 6560 Router 8/8/96 A $12,949.30
80111 Motorola 6560 Router 8/8/96 A $11,039.60
Xxx Xxxxxx Motorola 6560 Router 8/8/96 A $10,981.10
000-000-0000 Cisco 2509 Terminal Server 9/20/96 A $ 4,838.60
Cisco 2509 Terminal Server 9/20/96 A $ 4,838.60
Motorola 6560 Router 8/8/96 A $14,359.80
Motorola 6560 Router 8/8/96 A $12,695.80
Motorola 6560 Router 8/8/96 A $10,766.60
Motorola 6560 Router 8/8/96 A $10,708.10
Cisco 2509 Terminal Server 9/20/96 A $ 4,838.60
Cisco 2509 Terminal Server 9/20/96 A $ 4,838.60
Motorola 6520 Router 10/18/96 A $ 8,205.60
----------------------------------------------------------------------------------------------------
Carnival Cruise Lines Motorola Vanguard 200 FRAD 10/3/96 A $ 2,860
0000 Xxxxx Xxxx 00xx Xxxxxx
Xxxxx
XX
00000
Xxx Xxxxxxxx - ext. 5069
000-000-0000
----------------------------------------------------------------------------------------------------
USAir Motorola 6520 Router 10/15/96 A $ 6,626.10
0000 Xxxxxxxxxx Xxxxxxx Motorola 6520 Router 10/15/96 A $ 7,135.70
Xxxxxxx-Xxxxx
XX
00000
Xxxxxxx Xxxx
000-000-0000
----------------------------------------------------------------------------------------------------
MCI/Galileo International - Confidential
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----------------------------------------------------------------------------------------------------
Router MCI Equipment
SITE Type Install Date Cost
----------------------------------------------------------------------------------------------------
EDS/System One Motorola 6520 Router 11/21/96 A $ 5,030.85
0000 Xxxxxxxx Xxxxx Motorola 6520 Router 11/22/96 A $ 4,130.10
Charlotte Motorola 6520 Router 6/1/97 A $ 5,259.70
XX
00000
Xxxxx Xxxxxx
000-000-0000
----------------------------------------------------------------------------------------------------
Delta Airlines Motorola 6520 Router 10/17/96 A $ 4,659.20
0000 Xxxxx Xxxx. Motorola 6520 Router 11/22/96 A $ 5,385.90
Atlanta Motorola 6520 Router 6/1/97 A $ 5,259.70
GALILEO Motorola 6520 Router 6/1/97 A $ 5,259.70
30320
Xxxx Xxxxxxx
000-000-0000
----------------------------------------------------------------------------------------------------
Hertz Corporation Motorola 6520 Router 1/28/97 A $ 5,170.10
00000 Xxxxx Xxxxxxxxxxxx
Xxxxxxxxx Xxxx
XX
00000
Xxx Xxxxxx
000-000-0000
----------------------------------------------------------------------------------------------------
Worldspan/TWA Motorola 6520 Router 6/1/97 A $ 5,259.70
000 Xxxx Xxxxx Xxxxx, Xxxxx X Motorola Vanguard 200 FRAD 6/1/97 A $ 2,347.70
Atlanta Motorola 6520 Router 2/5/97 A $ 5,259.70
GALILEO Motorola 6520 Router 2/14/97 A $ 5,259.70
30354
Xxxxx Xxxxxxxxxxxx
000-000-0000
----------------------------------------------------------------------------------------------------
Holland American Cruise Motorola Vanguard 200 FRAD 1/6/97 A $ 2,809.30
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx
X
00000
Mat Xxxxxxx
000-000-0000
----------------------------------------------------------------------------------------------------
Amtrak Motorola Vanguard 200 FRAD 5/5/97 A $ 2,560.90
0000 Xxxxxx Xxxxx Xxxx 000
Xxxxxxxx
XX
00000
Xxxxxxx Xxxx
000-000-0000
----------------------------------------------------------------------------------------------------
MCI/Galileo International - Confidential
13
------------------------------------------------------------------------------------------------------------------------
MCI
Router Install Date Equipment
SITE Type Cost
------------------------------------------------------------------------------------------------------------------------
Norwegian Cruise Line Motorola 6520 Router 1/24/97 A $5,259.70
0000 Xxxxxxxxx Xxx. Xxxxx, Xxxx #0
Xxxxx
XX
00000
Xxxxx Xxxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------------
Wizcom (Avis/Budget) Motorola 6520 Router 4/3/97 A $5,259.70
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx
XX
00000
Xxxxx Xxxxxx
###-##-####
------------------------------------------------------------------------------------------------------------------------
British Airways Motorola Vanguard 200 FRAD 5/15/97 A $2,560.90
00-00 Xxxxxxx Xxxx. XXX Xxxxx Xxxx
Xxxxxxx Xxxxxxx
XX
00000
Xxxxx Xxxxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------------
HMHF Motorola Vanguard 200 FRAD 5/7/97 A $2,560.90
00000 Xxxxxxxxxxx Xxx., Xxxx. Xxxx.
Xxxxxxxxxx
XX
00000
Xxxx Xxxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------------
Princess Cruise Lines Motorola Vanguard 200 FRAD 4/11/97 A $3,240.80
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx
XX
00000
Xxx Xxxxxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------------
Hilton Hotels Motorola Vanguard 200 FRAD 3/17/97 A $3,240.80
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx
XX
00000
Xxx Xxxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------------
MCI/Galileo International - Confidential
14
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MCI
Router Install Date Equipment
SITE Type Cost
------------------------------------------------------------------------------------------------------------------------
Key Tours Motorola Vanguard 200 FRAD 6/1/97 A $2,466.00
000 Xxxxxx Xxxxxx
Xxxxxxx
Xxxxxxx Xxxxxx
X0X0X0
Xxxx Xxxxxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------------
Marriott Hotels Motorola Vanguard 200 FRAD 12/18/96 A $2,809.30
0000 Xxxxxxxxx Xxxx.
Xxxxxxxx
XX
00000
Xxxxxxx Xxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------------
Holiday Inn Motorola Vanguard 200 FRAD 2/26/97 A $3,240.80
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx
XX
00000
Xxxx Xxxxxxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------------
ITT Sheraton Motorola Vanguard 200 FRAD 2/27/97 A $3,240.80
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx
XX
00000
Xxxxxx Xxxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------------
Royal Caribbean Cruise Line Motorola Vanguard 200 FRAD 6/15/97 $2,560.90
0000 Xxxxxxxxx Xxx, 0xx xxxxx
Xxxxx
XX
00000
Xxx Xxxxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------------
Aero Mexicana Motorola Vanguard 200 FRAD 6/15/97 $2,560.90
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx
XX
00000
Xxxxx Xxxxxx Xxxxxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------------
MCI/Galileo International - Confidential
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MCI
Router Install Date Equipment
SITE Type Cost
----------------------------------------------------------------------------------------------------------------------
Thisco Motorola 6520 Router 6/1/97 A $3,997.00
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx
XX
00000
Xxxx Xxxx
000-000-0000
----------------------------------------------------------------------------------------------------------------------
Trafalgar Tours NYC Motorola Vanguard 200 FRAD 2/27/97 A $ 753.90
00 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX
00000
Xxxx Xxxxxx, Ext. 290
000-000-0000
----------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxx Lines Motorola Vanguard 200 FRAD 2/24/97 A $2,562.00
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx
XX
00000
Xxxx Xxxxxxxxx
310-785-9300
----------------------------------------------------------------------------------------------------------------------
Premier Cruise Lines Motorola Vanguard 200 FRAD 3/14/97 A $3,068.55
000 Xxxxxxxxxx Xxxx
Xxxx Xxxxxxxxx
XX
00000
Xxx Maggers
000-000-0000
----------------------------------------------------------------------------------------------------------------------
Logibro, Inc. Motorola Vanguard 200 FRAD 2/28/97 A $2,560.90
0 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxxxxxx
514-931-4433
----------------------------------------------------------------------------------------------------------------------
Regent Holidays Ltd. Motorola Vanguard 200 FRAD 3/10/97 A $2,560.90
0000 Xxxxxxx Xxxx, Xxxx. X, Xxx. 000
Xxxxxxxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
000-000-0000
----------------------------------------------------------------------------------------------------------------------
MCI/Galileo International - Confidential
16
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MCI
Router Install Date Equipment
SITE Type Cost
-------------------------------------------------------------------------------------------------------------------------
Terren Motorola Vanguard 200 FRAD 6/10/97 A $ 2,466.00
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxx
000-000-000
-------------------------------------------------------------------------------------------------------------------------
Hilton (LCS) Motorola 6520 Router 6/15/97 $ 5,259.70
0000Xxxxxx Xxxx
Xxxxxxxxxx
XX
00000
Xxxx Xxxxxx
000-000-0000
-------------------------------------------------------------------------------------------------------------------------
Levy and Associates Motorola Vanguard 200 FRAD 6/15/97 $ 2,347.70
-------------------------------------------------------------------------------------------------------------------------
Value Car Motorola Vanguard 200 FRAD 6/15/97 $ 2,347.70
000 XX00xx Xx., Xxx. 000
Xxxx Xxxxx
XX
00000
Xxxx Xxxxxx
000-000-0000
-------------------------------------------------------------------------------------------------------------------------
Preferred Holidays Motorola Vanguard 200 FRAD 6/15/97 $ 2,347.70
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx
XX
00000
Xxx Xxxxx
000-000-0000
-------------------------------------------------------------------------------------------------------------------------
Preferred Holidays Motorola Vanguard 200 FRAD 6/15/97 $ 2,347.70
0000 XX 00xx Xx.
Xx. Xxxxxxxxxx
XX
00000
Xxx Xxxxxxx
000-000-000 xxx 0000
-------------------------------------------------------------------------------------------------------------------------
TOTAL $350,673.19
-------------------------------------------------------------------------------------------------------------------------
MCI/Galileo International - Confidential
17
