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THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS
ARE INDICATED IN THIS AGREEMENT WITH "[TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]."
AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
SABRE INC.
AND
TRAVELOCITY.COM LP
MARCH 7, 2000
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AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
---------------------------------
THIS AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT (this
"Agreement"), dated as of March 7, 2000 (the "Effective Date"), is between
TRAVELOCITY.COM LP, a Delaware limited partnership ("TCY"), and SABRE INC., a
Delaware corporation ("Sabre"). Sabre and TCY may each be referred to as a
"Party" or collectively as the "Parties."
BACKGROUND
WHEREAS, in order to support TCY's ongoing business operations, TCY
has requested that Sabre provide certain administrative services to TCY;
WHEREAS, on the terms and subject to the conditions described in this
Agreement, Sabre is willing to provide such services to TCY; and
WHEREAS, this Agreement amends and restates, effective as of March 7,
2000, the Administrative Services Agreement, dated as of March 7, 2000,
between TCY and Sabre.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the adequacy of which is
hereby acknowledged, the Parties agree as follows:
ARTICLE I. RELATIONSHIP MANAGEMENT
1.1 DESIGNATION. TCY designates its Chief Financial Officer as TCY's
Representative, and Sabre designates its Vice President/Controller as
Sabre's Representative, upon and after the Effective Date until
changed by the designating Party. A Party may change its
Representative by Notice to the other Party. A Party may rely on and
deal with the Person who is designated as the other Party's
Representative until Notice of change is given by the other Party.
1.2 REPRESENTATIVES' AUTHORITY. Each Party has authorized its
Representative to conduct discussions and negotiations, make and
communicate decisions, frame and pose questions or issues, and resolve
Disputes on behalf of that Party relating to this Agreement. Though
one Party's employees or agents other than its Representative may
also take actions of the kinds described in the preceding sentence
with the other Party's employees or agents other than its
Representative, matters that require more formal discussions or
negotiations between the Parties shall be addressed through and by
the Representatives. Each Party and its Representative are entitled
to rely on the actions and decisions of the other Party's
Representative relating to this Agreement.
ARTICLE II. SERVICES
2.1 SERVICES. Sabre shall render, and TCY shall pay for, the Mandatory
Services and, to the extent not discontinued in accordance with this
Agreement, the Optional Services during the effectiveness of this
Agreement. The Services are described on the Schedules, which are an
integral part of this Agreement. The Services described in Schedule I
and II are, unless otherwise indicated on such Schedules, Mandatory
Services; the Services described on the other Schedules are Optional
Services.
2.2 ADDING OPTIONAL SERVICES. At least [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] prior to the beginning of each Sabre fiscal year,
TCY may request in writing that Sabre perform any of the services
listed on the attached EXHIBIT C as Optional Services and with respect
to which the Parties have reached an agreement regarding the nature
and scope of such additional Optional Services and
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the period of time during which such additional Optional Services will
be provided. Such agreement with respect to any additional Optional
Services will be set forth in a written agreement which will contain
the following information, as applicable: (a) a reference to this
Agreement, which reference will be deemed to incorporate all of the
provisions of this Agreement; (b) the date as of which the provisions
of the agreement will become effective and, if applicable, the term or
period of time during which the services or resources referenced
therein will be provided; (c) a description of the services or
resources to be provided by Sabre pursuant to the agreement; (d) a
description of TCY's responsibilities relating to the agreement; (e)
the monthly amounts payable for the Optional Service provided,
determined in a manner consistent with the calculations made pursuant
to ARTICLE 4 of this Agreement; and (f) any additional provisions that
are not otherwise set forth in this Agreement or that are exceptions
to the provisions set forth in this Agreement.
2.3 RECLASSIFICATION OF MANDATORY SERVICES. A Mandatory Service may be
reclassified as an Optional Service upon notification of TCY of
Sabre's determination that Sabre no longer bears, and is not subject
to, the legal, contractual, and tax-related risks and obligations
which made necessary or appropriate Sabre's provision of the
Mandatory Services to TCY.
2.4 MANNER AND PLACE OF PERFORMANCE. Sabre has full discretion about how
and where to render each Service as that Service is so described.
Sabre and the TCY Companies shall afford access to their respective
premises as necessary or reasonably appropriate to permit a Service or
Task to be rendered.
2.5 RECIPIENTS OF SERVICES. The Services shall be rendered solely to, or
for the direct benefit of, TCY and the TCY Companies. Neither TCY nor
any TCY Company may assign, license, or otherwise transfer or provide,
whether for or without consideration, any right to any Service, in
whole or in part, to any Person other than TCY or any TCY Company;
provided, however, that Sabre shall not be required to provide any
Services to or for the benefit of a TCY Company unless TCY has
Notified Sabre that TCY has acquired Control over the TCY Company and
Sabre and TCY have negotiated in good faith, and executed, a
supplement to this Agreement for the purpose of modifying the
Services, and the Price pertaining to Services, with respect to such
TCY Company.
2.6 SERVICE SUBCONTRACTS.
(a) Sabre may, without any consent or approval of TCY,
(i) Subcontract any Service, in whole or in part, to any
Person, including any Affiliate of Sabre,
(ii) amend any Service Subcontract, or
(iii) cease to Subcontract any Service, in whole or in
part.
Sabre shall provide reasonable notice to TCY of any material
changes in Service Subcontracts made after the Effective Date.
(b) Sabre shall remain responsible for the rendering to TCY of any
Service that is Subcontracted, in whole or in part. Also,
except as described in SECTION 11.4(b), Sabre shall be solely
responsible for its obligations to the Subcontractor
(including any applicable Subcontract Termination Penalty)
under each Service Subcontract.
(c) If Sabre has subcontracted a Service to AA, and AA changes the
scope or nature of any Service or Task that it provides to
Sabre under the relevant Services Subcontract, then, following
reasonable notice to TCY, Sabre may make a corresponding
change in the scope or nature of the affected Service or Task.
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2.7 INFORMATION REGARDING SERVICES. Each Party shall make available to the
other Party any information required or reasonably requested by that
other Party regarding the performance of any Service and shall be
responsible for timely providing that information and for the accuracy
and completeness of that information. But a Party shall not be liable
for not providing any information that is subject to a confidentiality
obligation owed by it to a Person other than an Affiliate of it or the
other Party. A Party shall not be liable for any impairment of any
Service caused by its not receiving information, either timely or at
all, or by its receiving inaccurate or incomplete information from the
other Party that is required or reasonably requested regarding that
Service.
2.8 LEGAL SERVICES. The Service described in one of the Schedules as
"legal services" consists of Sabre's making the Legal Staff available
for engagement by TCY and the TCY Companies for their legal matters.
The engagement, services, or withdrawal of any of the Legal Staff
regarding a particular legal matter for TCY or any of the TCY
Companies, as well as certain of the Prices for those legal services,
are governed by and subject to the Legal Staff's professional or
ethical obligations.
2.9 WARRANTY DISCLAIMER. SABRE MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, REGARDING ANY SERVICE OR TASK OTHER THAN AS STATED
IN THIS AGREEMENT. SABRE SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, REGARDING THE SERVICES.
ARTICLE III. DISCONTINUANCE OF OPTIONAL SERVICES
3.1 PROCEDURE. Either Party may discontinue or terminate any Optional
Service effective as of June 1 or December 1 of any year by providing
six (6) months' prior Notice to the other Party (and termination of
such Optional Service will be effective as of, but not before, the
following December 1 or June 1, respectively and as applicable).
Unless mutually agreed by the Parties, neither Party may discontinue
or terminate any of the individual Tasks which comprise an Optional
Service without terminating the entire Optional Service. A Notice of
discontinuance may refer to more than one Optional Service. Any
Optional Service that is the subject of a Notice of discontinuance
shall continue to be rendered by Sabre until the effective date of
the discontinuance, and TCY shall pay for that Optional Service
rendered until that date. A Party may not unilaterally rescind its
Notice of discontinuance.
3.2 IMPOSSIBLE OPTIONAL SERVICES. If either Party reasonably determines
that the discontinuance of any Optional Service would make it
functionally impossible to continue any other Optional Service, in
whole or in part, that Party shall promptly Notify the other of that
determination. Any Optional Service that so becomes functionally
impossible to render shall be deemed discontinued effective upon the
date of discontinuance of the Optional Service or Optional Services
that caused that impossibility.
3.3 TRANSITION ASSISTANCE. For up to [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after the effective date of discontinuance of an
Optional Service, Sabre shall comply with TCY's reasonable requests
for assistance in TCY's engaging or training another Person or
Persons to provide, and for records and other information relating
to, that discontinued Optional Service. If Sabre discontinues that
Optional Service, it shall comply with those requests at its own
expense. If TCY discontinues that Optional Service, it shall pay for
Sabre's compliance with those requests by:
(a) reimbursing Sabre all of its resulting reasonable
out-of-pocket expenses, and
(b) paying Sabre for the resulting time or activities of Sabre's
personnel on a time and materials basis.
Invoicing and payment for transition assistance shall be in accordance
with ARTICLE 6. Sabre may cease providing transition assistance,
immediately upon Notice to TCY, if TCY has not paid the amount
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described in a Nonpayment Notice by the [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after the Nonpayment Notice was given.
3.4 REINSTATEMENT OF DISCONTINUED SERVICE. Neither Party may unilaterally
reinstate any Optional Service that has been discontinued under this
Agreement.
ARTICLE IV. PRICES
4.1 BUDGETED COST ALLOCATION. The monthly prices for the Services will be
determined as follows:
(a) Prior to the beginning of each calendar year occurring (in
whole or part) during the term of this Agreement, Sabre will
determine
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(b) For each calendar month during the term of this Agreement, the
monthly price for each Service shall be determined as follows:
(i) The monthly Price for each Optional Service (or
Tasks) will be calculated as follows: (a) 1.10 times
(b) the Budgeted Service Costs for such category of
Optional Service (or Tasks), for the calendar year in
which the calendar month occurs, [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED]
(ii) The monthly Price for each Mandatory Service will be
calculated as follows: (a) the Budgeted Service Costs
for such category of Mandatory Service for the
calendar year in which the calendar month occurs,
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(c) Sabre will promptly notify TCY of Sabre's determination of
Budgeted Service Costs and the TCY Allocable Percentage, for
each category of Services (or Tasks), and permit TCY a
reasonable opportunity to discuss such determinations with
Sabre.
4.2 COST ALLOCATION TRUE-UP. During each calendar year of the Agreement,
Sabre will determine, in a manner consistent with its customary
practices, the costs allocable to TCY's use of Services. For purposes
of the remainder of this SECTION 4.2, the costs allocable to TCY's use
of Optional Services (other than AMR Pass-through Services) will be
equal to [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] of the
costs determined pursuant to the preceding sentence. If either Party
believes that, for any [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] ending [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] or
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] of any calendar year,
the costs allocable to TCY's use of Services were at least [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] greater than or less than
the amounts paid by TCY during such [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED], pursuant to SECTION 4.1(b) and ARTICLE VI, then
such Party may request, within [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after the end of the period in question, Sabre's
calculation of such allocable costs and a comparison with such
amounts paid. If the calculation confirms a differential between such
allocable costs and such amounts paid of more than [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED], then the Party that benefited from
such over-payment or underpayment will pay the entire differential
(not just that portion of the differential that is more than the
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] margin) to the
other Party within [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
of the completion of the calculation. In addition, in such event, if
the differential between actual allocable costs, and amounts paid,
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during the [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED], would
likely continue during the next [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED], then the Parties shall negotiate in good faith to adjust
the monthly price for Services, pursuant to SECTION 4.1(b), in order
to eliminate such differential for the next [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED].
4.3 SPECIAL PROVISIONS APPLICABLE TO LEGAL SERVICES. With respect to the
legal services described in SCHEDULE VIII: (a) for periods beginning
after June 30, 2000, the TCY Applicable Percentage will be calculated
based on the assumption that the services of outside (non-Sabre)
attorneys will not be included in the legal services described in
SCHEDULE VIII; therefore the TCY Applicable Percentage in SCHEDULE XIV
shall decline to 3.9% effective July 1, 2000; (b) for purposes of
Section 4.2, the costs allocable to TCY's use of legal services
rendered by outside (non-Sabre) attorneys will be equal to 100%,
rather than 110%, of allocable costs, and (c) the costs allocable to
TCY's use of legal services rendered by in-house attorneys at Sabre
shall be established on an hourly basis, at the internal billing
rates established by Sabre, from time to time, for those Sabre
attorneys who provide such legal services. Sabre has provided TCY
with a list of the internal billing rates currently in effect for
such Sabre attorneys, and will provide TCY with a revised list within
thirty (30) days after the effective date of any changes in the
internal billing rates.
ARTICLE V. EXPENSES AND TAXES
5.1 EXPENSES. Each Party shall be solely responsible for its costs and
expenses incurred in performing its obligations and exercising its
rights and remedies under this Agreement, except as otherwise provided
in this Agreement.
5.2 TAXES. The Parties shall be responsible for tax payments or
liabilities relating to this Agreement as follows:
(a) Each Party shall be responsible for its income and franchise
taxes and for all other taxes (however described) based on its
own income or earnings.
(b) TCY shall be responsible for all sales, use, and similar taxes
(however described) applicable to the Services, in whole or in
part. This obligation includes TCY's paying the sales taxes
identified in Sabre's invoices submitted to TCY for the
Services.
(i) TCY shall indemnify Sabre, in accordance with SECTION
11.4(c)(ii), against any taxes of this kind assessed
or levied against, or paid by, Sabre and any other
related Damages of Sabre.
(ii) If Sabre receives an assessment from a taxing
authority covering taxes for which TCY is responsible
under this SECTION 5.2(b), Sabre shall Notify TCY of
the assessment and, at TCY's request, timely contest
the assessment. If payment to the taxing authority is
required by law as a condition to protest, TCY shall
timely furnish Sabre the required amount for that
payment.
(iii) If TCY believes it has overpaid taxes to Sabre for
any of the Services (in whole or in part), TCY may
require Sabre to file a claim for a refund at TCY's
expense. If permitted by law, Sabre may assign any
right to a refund directly to TCY instead of filing a
refund claim. Any refund of taxes (including any
interest) received by Sabre under this SECTION
5.2(b)(iii) shall be promptly forwarded to TCY.
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(iv) Before Sabre is required to pursue any action
requested by TCY under this SECTION 5.2(b), Sabre may
at any time require TCY to deliver a letter of advice
from outside counsel (selected by TCY) stating that
TCY's tax position is reasonable.
(v) Except as stated in the next sentence, any Dispute
between the Parties regarding the application of any
taxes of this kind to any Service (in whole or in
part) shall be resolved by the Dispute Resolution
Procedure. Any Dispute as to the amount of tax (if
any) owed to a taxing authority, including a Dispute
between a Party and the taxing authority, need not be
resolved by the Dispute Resolution Procedure, but may
be resolved by any appropriate administrative or
legal procedure available to a Party or the Parties
under this Agreement apart from the Dispute
Resolution Procedure.
(c) Each Party shall be responsible for all real property,
personal property, and other taxes (however described) based
on its owned or leased property, whether real or personal.
(d) Each Party shall be responsible for all employment-related
taxes (however described) regarding its own employees.
Each Party shall cooperate with any reasonable request of the other
Party to restructure any Service, in whole or in part, or to take any
other reasonable action to avoid or minimize any duplicate taxes that
might be imposed; the requesting Party shall bear the expenses of the
other Party's compliance.
ARTICLE VI. PAYMENT
6.1 INVOICES. Sabre shall submit to TCY monthly one or more invoices for
the Services. Each invoice shall indicate:
(a) The amount charged for each Service covered by that invoice;
and
(b) if that invoice includes any credit or offset for TCY, the
amount and purpose of that credit or offset.
Each invoice should also indicate the sales, use, or similar taxes
being collected on each Service, or part of a Service, that Sabre
believes to be so taxable. An invoice may cover more than one Service.
6.2 PAYMENT. TCY shall pay the amount of each invoice within [TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESTED] after the date of that invoice.
TCY shall pay the invoiced amount even if TCY disputes all or a
portion of that amount, unless Sabre has agreed on or before the due
date to accept a different amount.
6.3 METHOD OF PAYMENT. TCY shall pay Sabre by wire transfer of immediately
available funds to an account or accounts designated by Sabre. All
payments shall be made in United States currency.
6.4 INTEREST. Sabre may charge interest on any past due invoiced amount at
the [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] from the due
date until paid in full with accrued interest. Any payment of
interest only is not a cure or Sabre's sole remedy for nonpayment of
any invoiced amount that is due.
6.5 NONPAYMENT NOTICE. If Sabre does not receive the full payment of any
invoice (and has not agreed to accept a different amount), it may give
TCY a Nonpayment Notice. TCY shall pay the amount described in the
Nonpayment Notice by the [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after that Nonpayment Notice is given.
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ARTICLE VII. CONFIDENTIALITY AND AUDIT RIGHTS
7.1 CONFIDENTIALITY.
(a) OWNERSHIP; SCOPE OF OBLIGATION. As between the Parties, the
Confidential Information of each Party will remain its sole
property. Confidential Information will be used by the
recipient Party only for purposes of this Agreement. Each
Party will hold the Confidential Information of the other
Party in strict confidence and protect such Confidential
Information from disclosure using the same care it uses to
protect is own confidential information of like importance,
but not less than reasonable care. No Confidential Information
will be disclosed by the recipient Party without the prior
written consent of the other Party, except that each Party may
disclose this Agreement and the other Party's Confidential
Information to its directors, employees, attorneys, agents,
auditors, insurers and subcontractors who require access to
such information in connection with their employment or
engagement and who are obligated to keep such information
confidential in a manner no less restrictive than as set forth
in this SECTION 7.1. The Party employing or engaging such
Persons is responsible and liable for their compliance with
such confidentiality obligations.
(b) EXCEPTIONS. This Agreement does not prevent or restrict use or
disclosure by the recipient Party of Confidential Information
of the disclosing Party that (i) was in the public domain when
communicated to the recipient Party, (ii) enters the public
domain through no fault of the recipient Party, (iii) was in
recipient Party's possession free of any obligation of
confidence when communicated to the recipient Party or (iv)
was rightfully communicated to the recipient Party by a Third
Party free of any obligation of confidence to the disclosing
Party. If Confidential Information is required to be disclosed
by law or a Governmental Authority, including pursuant to a
subpoena or court order, such Confidential Information may be
disclosed, provided that the Party required to disclose the
Confidential Information (i) promptly notifies the disclosing
Party of the disclosure requirement, (ii) cooperates with the
disclosing Party's reasonable efforts to resist or narrow the
disclosure and to obtain an order or other reliable assurance
that confidential treatment will be accorded the disclosing
Party's Confidential Information, and (iii) furnishes only
Confidential Information that the Party is legally compelled
to disclose according to advice of its legal counsel. Upon
written request at the expiration or termination of this
Agreement, all documented Confidential Information (and all
copies thereof) owned by the requesting Party will be returned
to it or destroyed by the recipient Party, with written
certification thereof.
7.2 AUDIT RIGHTS.
(a) GENERAL. Auditors designated by TCY, and who agree in writing
to the security and confidentiality obligations and procedures
required by Sabre, will be provided with reasonable access to
locations from which Sabre provides Services to enable them to
audit Sabre's activities under this Agreement, including
verifying that Services are being provided in accordance with
this Agreement. The auditors must be internationally
recognized firms and TCY may not designate any auditor who, in
Sabre's reasonable opinion, is a competitor of, or affiliated
with a competitor of, Sabre or its Subsidiaries. TCY will be
responsible for compensating its auditors.
(b) PROCEDURES. Such audits may be conducted once a year during
reasonable business hours. TCY will provide Sabre with at
least thirty (30) days prior written notice of an audit. Sabre
will cooperate with the audit, will make the information
reasonably required to conduct the audit available on a timely
basis and will assist the designated employees of TCY's
auditors as reasonably necessary. Sabre will not be required
to provide access to the proprietary data of Sabre or other
Sabre customers. All information learned or exchanged in
connection with the conduct of an audit, as well as the
results of any audit, is Confidential Information of Sabre.
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(c) RESULTS. TCY will provide Sabre copies and results of each
audit. The Parties will review the results of an audit, will
identify all relevant audit issues and will determine (i)
what, if any, actions will be taken in response to such audit
issues, and (ii) which Party will be responsible for the cost
of taking the actions necessary to resolve such issues.
(d) RECORDS RETENTION. Each Party shall create and maintain
accurate records regarding the Services rendered and the
amounts charged and paid or received under this Agreement.
Sabre's records shall include information regarding the
determination of the cost or the cost allocation for each
Service rendered. Each Party's records regarding:
(i) the Services rendered, as of the Effective Date,
shall be of substantially the same kinds as that
Party has created and maintained regarding those
Services before the Effective Date; and
(ii) the Services, as changed after the Effective Date in
accordance with this Agreement, shall be of the kinds
that are reasonable, and consistent with the other
business records created and maintained by that
Party, regarding services like those Services.
Each Party shall create and maintain those records with the
same degree of completeness and care as it maintains its other
similar business records. Each Party shall maintain those
records for the time or times required by applicable law or
regulation, except that a party shall, upon request of the
other Party, maintain any of those records for a longer time
if the requesting Party pays the additional expenses incurred
in complying with that request.
ARTICLE VIII. PARTIES' RELATIONSHIP
8.1 INDEPENDENT. The Parties are independent; each has sole authority and
control of the manner of, and is responsible for, its performance of
this Agreement. This Agreement does not create or evidence a
partnership or joint venture between the Parties. Neither Party may
create or incur any liability or obligation for or on behalf of the
other Party, except as described in this Agreement and any other
written agreement between the Parties. This Agreement does not
restrict Sabre from providing or rendering any services, including
services like the Services, to any other Person; nothing in this
Agreement, however, gives Sabre the right to provide or render any
services in violation of any other agreement entered into by the
Parties.
8.2 EMPLOYEES. Except as described in SECTION 11.4(b) or SECTION 11.4(c)
of this Agreement, for the purposes of this Agreement:
(a) each Party is solely responsible for its own employees or
agents, including the actions or omissions and the
compensation of those employees and agents, and
(b) neither Party has any authority with respect to any of the
other Party's employees or agents.
8.3 AUTHORITY AND ENFORCEABILITY. Each Party warrants to the other Party
that:
(a) it has the requisite corporate authority to enter into and
perform this Agreement;
(b) its execution, delivery, and performance of this Agreement
have been duly authorized by all requisite corporate action on
its behalf;
(c) this Agreement is enforceable against it; and
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(d) it has obtained all consents or approvals of Governmental
Authorities and other Persons that are conditions to its
entering into this Agreement.
8.4 THIRD-PARTY CONSENTS. Each Party shall be responsible for obtaining and
maintaining any licenses, permits, consents, or approvals of
Governmental Authorities and other Persons necessary or appropriate for
it to perform its obligations under this Agreement.
8.5 THIRD-PARTY-RELATED ARRANGEMENTS. The Parties also have certain
arrangements and agreements relating to certain of the Services
provided by an Effective Date Service Subcontract or provided directly
by Sabre but involving an agreement with a third party. The Parties
currently expect that the matters or issues addressed by those
arrangements or agreements will need to continue to be addressed --
whether in the same or in a different manner -- upon Expiration or the
termination of this Agreement or the discontinuance of certain Optional
Services. Hence, before and upon any of those events, each Party shall
use its Reasonable Efforts to change, renegotiate, replace, sever, or
assign, as the Parties mutually agree, those arrangements or agreements
as necessary to so address those matters or issues and to equitably
allocate to the respective Parties -- in accordance with their
respective assets and businesses -- the benefits and the obligations of
those arrangements or agreements upon and after the occurrence of any
of those events.
8.6 FURTHER ASSURANCES. Each Party shall take such actions, upon request of
the other Party and in addition to the actions specified in this
Agreement, as may be necessary or reasonably appropriate to implement
or give effect to this Agreement.
ARTICLE IX. TERM
9.1 STATED TERM. This Agreement commences on the Effective Date and will
continue in effect until 11:59 p.m. on March 6, 2015, unless terminated
earlier by one or both of the Parties in accordance with ARTICLE 10.
9.2 RENEWAL. The Parties may consent to successive [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] by following this procedure: If TCY
wishes to renew the term of this Agreement, it shall Notify Sabre of
that intention no later than [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] (and no more than [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]) prior to the end of the then-current term of this
Agreement. If Sabre wishes to concur with that renewal, it shall Notify
TCY of that concurrence within [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] of receipt of the Notice delivered by Sabre pursuant to the
previous sentence. If no Notice of intent to renew or no concurrence is
given, this Agreement will Expire when the then-current term expires.
9.3 TRANSITION ASSISTANCE. For a period of up to [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after Expiration, Sabre shall comply
with TCY's reasonable requests for assistance in engaging or training
another Person or Persons to provide, and for records and other
information relating to, the Services rendered by Sabre immediately
preceding that Expiration. TCY shall reimburse and pay Sabre's
Transition Charges in accordance with invoices submitted to TCY by
Sabre. ARTICLE 6 shall apply in this situation as though this Agreement
had not Expired. Sabre may cease providing transition assistance,
immediately upon Notice to TCY, if TCY has not paid the amount
described in a Nonpayment Notice by the [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after the Nonpayment Notice was given. If the
records or other information provided by Sabre are Confidential
Information, SECTION 7.1 shall also apply as though this Agreement had
not Expired.
ARTICLE X. TERMINATION
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10.1 TERMINATION EVENTS. This Agreement may be terminated, without liability
to the Party terminating:
(a) By either Party, upon [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]' Notice to the other, at any time upon or after the
Parties cease to be Affiliates.
(b) By a Party, immediately upon Notice to the other Party, if:
(i) that other Party makes a general assignment of all or
substantially all of its assets for the benefit of
its creditors;
(ii) that other Party applies for, consents to, or
acquiesces in the appointment of a receiver, trustee,
custodian, or liquidator for its business or all or
substantially all of its assets;
(iii) that other Party files, or consents to or acquiesces
in, a petition seeking relief or reorganization under
any bankruptcy or insolvency laws; or
(iv) a petition seeking relief or reorganization under any
bankruptcy or insolvency laws is filed against that
other Party and is not dismissed within [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after it
was filed.
(c) By a Party, immediately upon Notice to the other Party, if
that other Party's material breach of this Agreement continues
uncured or uncorrected for [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after both the nature of that breach and
the necessary cure or correction has been agreed upon by the
Parties or otherwise determined by the Dispute Resolution
Procedure. But if:
(i) the Parties agree or it is determined by the Dispute
Resolution Procedure that the material breach is not
capable of being cured or corrected, the termination
shall be effective immediately upon Notice, without
any cure period; or
(ii) the breaching Party (A) reasonably requires longer
than [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] to cure or correct -- such as when the
applicable Service Subcontract permits the
Subcontractor longer than [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] to cure or correct
-- and (B) Notifies the non-breaching Party of the
circumstances, then the cure period shall be extended
for the reasonable time so required, so long as
during that time the breaching Party diligently acts
to effect that cure or correction; provided, however,
that in no event shall this SECTION 10.1(c)(ii) apply
to TCY's obligation to make payments to Sabre under
this Agreement.
A non-breaching Party's exercise of the remedy described in
this SECTION 10.1(c) shall be conditioned upon its giving a
Breach Notice to the other Party.
(d) By Sabre, immediately upon Notice to TCY, if TCY has not paid
the amount described in a Nonpayment Notice by the [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after that
Nonpayment Notice was given.
A Party may not terminate this Agreement if the event or circumstance
described above in this SECTION 10.1, upon which that Party would rely
in so terminating, was caused by that Party's breach of this Agreement.
10.2 NONEXCLUSIVE. The termination rights under SECTIONS 10.1(c) and 10.1(d)
are not exclusive of any other right or remedy of a non-breaching Party
granted in this Agreement.
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10.3 CONSEQUENCES OF TERMINATION. Upon termination of this Agreement:
(a) Under SECTION 10.1(a) or by TCY under SECTION 10.1(c):
(i) During the Transition Period Sabre shall continue to
render, and TCY shall pay for, each Service
reasonably requested by TCY until terminated by
either Party in accordance with SECTIONS 10.3(a)(ii)
and 10.3(a)(iii). Except as stated in SECTION
10.3(a)(ii), the terms of this Agreement shall
continue to apply during the Transition Period as
though no termination of this Agreement had occurred.
(ii) The Price for each Service during the Transition
Period shall be the same as in effect immediately
preceding the Termination Date. During the Transition
Period, any Service (including a Mandatory Service),
but not any one or more of the Tasks separately, may
be terminated by (A) TCY, for any reason, by [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] Notice to
Sabre, or (B) Sabre, if TCY has not paid the amount
described in a Nonpayment Notice by [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after the
Nonpayment Notice was given. Any Service that is the
subject of a Notice of termination shall continue to
be rendered by Sabre until the effective date of that
termination, and TCY shall pay for that Service
rendered through that date. Neither Party may
unilaterally rescind a Notice of termination.
(iii) If either Party reasonably determines that the
termination of any Service during the Transition
Period would make it functionally impossible to
continue any other Service during the Transition
Period, that Party shall promptly Notify the other
Party of that determination; any Service that so
becomes functionally impossible to render shall be
deemed terminated effective upon the date of
termination of the Service that caused that
impossibility. Neither Party may unilaterally
reinstate any Service that has been terminated as of
the Termination Date or during the Transition Period.
(b) Under SECTION 10.1(b), during the Transition Period Sabre
shall comply with TCY's reasonable requests for assistance in
TCY's engaging or training another Person or Persons to
provide, and for records and other information relating to,
each Service in effect immediately preceding the Termination
Date. If Sabre terminates this Agreement, Sabre shall comply
with those requests at its own expense. If TCY terminates this
Agreement, TCY shall reimburse and pay Sabre's Transition
Charges in accordance with invoices submitted to TCY by Sabre.
ARTICLE 6 shall apply in this situation as though this
Agreement had not been terminated. When TCY is obligated to
reimburse and pay Sabre's Transition Charges, Sabre may cease
providing transition assistance, immediately upon Notice to
TCY, if TCY has not paid the amount described in a Nonpayment
Notice by the [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after the Nonpayment Notice was given. If the
records or other information provided by Sabre are
Confidential Information, SECTION 7.1 shall also apply as
though this Agreement had not been terminated.
(c) Under SECTION 10.1(d) or by Sabre under SECTION 10.1(c), then
Sabre shall have no obligation to provide any continued
Services or transition assistance as described above in this
SECTION 10.3.
ARTICLE XI. LIABILITY AND REMEDIES
11.1 WARRANTIES. Each Party's warranties in this Agreement are made solely
to and for the benefit of the other Party and, to the extent described
in this Agreement, the TCY Companies. No Person other than a Party
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may make a claim based on the other Party's warranties under this
Agreement; any claim by a TCY Company shall be made by TCY.
11.2 NONCONFORMING SERVICES. TCY shall promptly Notify Sabre of any
Deficiency in any Service or Task, whether rendered by Sabre or a
Subcontractor. To the extent Sabre agrees, or it is otherwise
determined by the Dispute Resolution Procedure, that a Service or Task
was or is a Nonconforming Service, Sabre shall use its Reasonable
Efforts promptly to cure or correct, or cause its Subcontractor to cure
or correct, the Deficiency to the extent it may then be cured or
corrected.
(a) If the Deficiency was, or was the result of, Sabre's
negligence, Sabre shall not be responsible or liable for any
resulting Damages of TCY; provided, however, that if Sabre
performs on its own behalf a service that is substantially
similar to Service or Task which is the subject of the
Deficiency, and Sabre has not been negligent in performing
such substantially similar service on its own behalf, then
subject to SECTION 11.3 below, Sabre shall be responsible or
liable for TCY's resulting damages in an amount up to:
(i) if Sabre's liability is determined (by the Parties'
agreement or the Dispute Resolution Procedure) after
the calendar year in which the Deficiency occurred,
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(ii) if Sabre's liability is determined during the
calendar year in which the Deficiency occurred, the
greater of [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(b) If the Deficiency was, or was the result of, Sabre's or a
Subcontractor's gross negligence (including recklessness) or
willful misconduct, or a Subcontractor's negligence, then,
subject to SECTION 11.2(c) and SECTION 11.3 below, Sabre shall
be responsible or liable for TCY's resulting Damages in an
amount up to:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(c) If the Deficiency was, or was the result of, a Subcontractor's
negligence, gross negligence (including recklessness) or
willful misconduct, then the additional limitations of this
SECTION 11.2(c) shall apply. In such event, Sabre's
responsibility or liability to TCY for Damages resulting from
such Deficiency shall not exceed [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] In lieu of seeking to recover damages
from the relevant Subcontractor, Sabre has the right, but not
the obligation, to assign to TCY Sabre's right to recover such
damages from such Subcontractor.
11.3 [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
11.4 INDEMNITIES FOR CERTAIN BREACHES AND OTHER MATTERS. The following shall
apply to any breach of, and certain other Damages relating to, this
Agreement, other than a Deficiency for which Sabre has no liability for
Damages under SECTION 11.2(a) or a nonpayment by TCY of any amount
relating to an invoice:
(a) Subject to the limits on liability described in SECTION
11.2(b) AND (c), if that Section is applicable, each Party
shall indemnify the other Party against all Damages of the
Indemnified Party, or any of its Indemnified Agents, resulting
from or relating to:
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(i) any breach of this Agreement, including a breach of
any warranty in this Agreement, by the Indemnifying
Party;
(ii) any Proceedings relating to a breach of this
Agreement by the Indemnifying Party; and
(iii) the actions or omissions of the Indemnifying Party's
employees or agents under or in connection with this
Agreement, except as described in SECTIONS 11.4(b)
and 11.4(c).
(b) TCY shall also indemnify Sabre against all Damages of Sabre or
any of its Indemnified Agents, including any Subcontract
Termination Penalty, under or relating to any Service
Subcontract resulting from:
(i) any violation by TCY of any obligation imposed on it
under that Service Subcontract;
(ii) the actions or omissions of TCY's employees or agents
under or in connection with that Service Subcontract;
(iii) TCY's discontinuance of any Optional Service that
Sabre renders, in whole or in part, by that Service
Subcontract, even if permitted by ARTICLE 3;
(iv) TCY's performing itself or obtaining from any Person
other than Sabre or its Subcontractor any service or
services to supplement or substitute for any Optional
Service that Sabre renders, in whole or in part, by
that Service Subcontract;
(v) the actions, omissions or claims of any client or
customer of TCY or any Person to whom TCY provides
goods or services; or
(vi) the termination of this Agreement other than a
termination by TCY under SECTIONS 10.1(a), 10.1(b) or
10.1(c).
(c) TCY shall also indemnify Sabre against all Damages of Sabre or
any of its Indemnified Agents resulting from or relating to:
(i) the actions or omissions of any of the Legal Staff
that are directed by TCY or any TCY Company within
the scope of that lawyer's or paralegal's engagement
for any legal matter of TCY or any TCY Company; or
(ii) any sales, use, or similar taxes (however described)
applicable to any of the Services, in whole or in
part, that are assessed or levied against or paid by
Sabre.
(d) The indemnification obligations in SECTIONS 11.4(a), 11.4(b),
and 11.4(c) shall be extinguished to the extent that the
Damages of the other Party, or any of its Indemnified Agents
for whom or which the other Party is seeking indemnification,
were caused by the gross negligence (including recklessness)
or willful misconduct of the Person for whom or which
indemnification is sought. THE ORDINARY NEGLIGENCE OF A PERSON
OR THE JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF PERSONS
SHALL NOT PRECLUDE THAT PERSON OR ANY OF THOSE PERSONS FROM
RECEIVING THE BENEFITS OF INDEMNIFICATION UNDER THIS
AGREEMENT.
(e) If an Indemnification Claim is not based on a Third-Party
Claim, the Indemnified Party shall give an Indemnification
Claim Notice promptly after the event constituting the basis
for the Indemnification Claim; its failure to do so, however,
shall relieve the Indemnifying Party of its indemnification
obligations only to the extent the Indemnifying Party is
actually prejudiced by that
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failure. If the Indemnified Party gives an Indemnification
Claim Notice regarding an Indemnification Claim not based on a
Third-Party Claim, the Indemnifying Party shall Notify the
Indemnified Party within the Indemnification Response Period
whether the Indemnifying Party disputes all or any portion of
the Indemnification Claim. If the Indemnifying Party does not
give that dispute Notice or agrees to accept liability for all
or a portion of the Indemnification Claim, the Indemnification
Claim, or the agreed portion of that Indemnification Claim,
shall be the Indemnifying Party's liability. Otherwise, the
Indemnification Claim shall be deemed a Dispute to be resolved
by the Dispute Resolution Procedure.
(f) If an Indemnification Claim is based on a Third-Party Claim:
(i) The Indemnified Party shall give an Indemnification
Claim Notice promptly after it receives the
Third-Party Claim. The failure of an Indemnified
Party to timely give an Indemnification Claim Notice
shall relieve the Indemnifying Party of its
indemnification obligations only to the extent the
Indemnifying Party is actually prejudiced by that
failure.
(ii) The Indemnifying Party shall be entitled to defend
the Third-Party Claim, with its chosen counsel and at
its own expense, if (A) the Third-Party Claim seeks
only monetary relief, and not an injunction or other
equitable relief, against the Indemnified Party, and
(B) the Indemnifying Party elects to assume, and
diligently conducts, that defense. The Indemnifying
Party's election to defend shall be given by Notice
to the Indemnified Party within the Indemnification
Response Period. If the Indemnifying Party conducts
the defense, the Indemnified Party may participate in
that defense with its own counsel and at its own
expense.
(iii) If the Indemnifying Party does not elect to defend
the Third-Party Claim by Notice within the
Indemnification Response Period, or if the
Indemnifying Party does not diligently conduct the
defense, the Indemnified Party shall be entitled,
upon further Notice to the Indemnifying Party, to
defend the Third-Party Claim on behalf of, and for
the account and risk of, the Indemnifying Party (if
it is determined that the Indemnifying Party has an
indemnification obligation regarding that
Indemnification Claim). In this circumstance, the
Indemnifying Party may participate in the defense
with its own counsel and at its own expense.
(iv) If there is a conflict of interest that makes it
inappropriate for the same counsel to represent the
Indemnifying Party and the Indemnified Party in
defending the Third-Party Claim, the Indemnifying
Party shall pay for separate counsel for the
Indemnified Party.
(v) The Indemnifying Party defending a Third-Party Claim
may compromise, settle, or resolve that Third-Party
Claim without the Indemnified Party's consent if the
compromise, settlement, or resolution involves only
the payment of money by the Indemnifying Party
(whether on its own behalf or behalf of the
Indemnified Party) and the third-party claimant
provides the Indemnified Party a release from all
liability regarding the Third-Party Claim. Otherwise,
the Indemnifying Party may not compromise, settle, or
resolve the Third-Party Claim without the Indemnified
Party's Reasonable Consent.
(vi) The Indemnifying Party and the Indemnified Party
shall cooperate with all reasonable requests of the
other in defending any Third-Party Claim.
11.5 TIME FOR CLAIMS. TCY may make a claim against Sabre for the cure or
correction of any Deficiency only within [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after the Deficiency
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occurred; any Deficiency shall be deemed to have occurred when the
particular Nonconforming Service was rendered. A Party may make an
Indemnification Claim
(a) not based on a Third-Party Claim, only within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after the breach or other
event constituting the basis for that Indemnification Claim
occurred, even if not discovered until after that [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED], or
(b) based on a Third-Party Claim, at any time.
11.6 EQUITABLE RELIEF. To the extent that monetary relief is not a
sufficient remedy for any breach of this Agreement, or upon any breach
or impending breach of SECTION 7.1, the non-breaching Party shall be
entitled to injunctive relief as a remedy for that breach or impending
breach by the other Party, in addition to any other remedies granted to
the non-breaching Party in this Agreement.
11.7 EXCLUSIVE REMEDIES. Except for the termination right stated in ARTICLE
10 and the relief described in SECTIONS 5.2(b) and 12.8(d) and in the
Dispute Resolution Procedure, the remedies described in this ARTICLE 11
are the exclusive rights and remedies of a Party regarding any breach
of this Agreement or any matter that may be the subject of an
Indemnification Claim.
11.8 WAIVER OF REMEDIES. No forbearance, delay, or indulgence by either
Party in enforcing this Agreement -- within the applicable time limits
stated in this Agreement -- shall prejudice the rights or remedies of
that Party. No waiver of a Party's rights or remedies regarding a
particular breach of this Agreement constitutes a waiver of those
rights or remedies, or any other rights or remedies, regarding any
other or any subsequent breach of this Agreement.
11.9 CUMULATIVE REMEDIES. A Party's election to pursue a right or remedy
granted in this Agreement upon the other Party's breach of this
Agreement shall not preclude the non-breaching Party from pursuing
other rights or remedies granted to that Party in this Agreement that
are applicable to that breach under this Agreement.
ARTICLE XII. MISCELLANEOUS
12.1 ENTIRE AGREEMENT; SURVIVAL. This Agreement (including the Definitional
Appendix, Exhibits and Schedules attached hereto, each of which is
incorporated into this Agreement by this reference) constitutes the
full and complete statement of the agreement of the Parties with
respect to the subject matter hereof and supersedes any previous
agreements, understandings or communications, whether written or oral,
relating to such subject matter. Any provision of this Agreement which
contemplates performance or observance subsequent to any termination or
expiration of this Agreement will survive any termination or expiration
of this Agreement and continue in full force and effect. Such
provisions will include ARTICLES 7 and 11 and payments that remain due
and payable under this Agreement.
12.2 AMENDMENTS; WAIVER. Changes or modifications to this Agreement may not
be made orally, but only by a written amendment or revision signed by
both Parties. Any terms and conditions varying from this Agreement on
any order, invoice or other notification from either Party are not
binding on the other unless specifically accepted in writing by the
other. Unless otherwise expressly provided in this Agreement, a delay
or omission by either Party to exercise any right or power under this
Agreement will not be construed to be a waiver thereof. No waiver of
any breach of any provision of this Agreement will constitute a waiver
of any prior, concurrent or subsequent breach of the same or any other
provision hereof.
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12.3 BINDING NATURE; ASSIGNMENT. This Agreement will be binding on the
Parties and their successors and permitted assigns (it being understood
and agreed that nothing contained in this Agreement is intended to
confer upon any other Person any rights, benefits or remedies of any
kind or character whatsoever under or by reason of this Agreement).
Neither Party may, nor will it have the power to, assign this
Agreement, or any part hereof, without the prior written consent of the
other, provided, that Sabre may assign its rights and delegate its
duties and obligations without the prior written consent of TCY to any
Subsidiary or Affiliate of Sabre as necessary in order for such
Subsidiary or Affiliate to provide all or part of the Services. The
Parties acknowledge that either Party might become a party to one or
more transactions in the form of a merger, consolidation,
reorganization, stock sale or exchange, sale of any substantial portion
of such Party's assets or similar transaction. Any such transaction
involving a Party (and whether or not it is the surviving entity) will
be deemed to be an assignment of this Agreement by that Party requiring
the consent of the other Party if: (a) in the case of Sabre being
involved in such a transaction, the transaction materially and
adversely affects Sabre's ability to continue to perform the Services
in accordance with this Agreement; or (b) in the case of TCY being
involved in such a transaction, the transaction (i) causes a material
increase in Sabre's costs to provide Services, or (ii) impairs TCY's
ability to meet its financial obligations hereunder.
12.4 THIRD PARTY BENEFICIARIES. Except as provided in this Agreement, this
Agreement is entered into solely between, and may be enforced only by,
Sabre and TCY, and this Agreement will not be deemed to create any
rights in third parties, including suppliers and customers of a Party,
or to create any obligations of a Party to any such third parties.
12.5 DISPUTE RESOLUTION. All Disputes arising out of the transactions
contemplated by this Agreement will be resolved in accordance with the
Dispute Resolution Procedure set forth in EXHIBIT A.
12.6 APPROVALS AND SIMILAR ACTIONS. Except as otherwise expressly provided
in this Agreement, where agreement, approval, acceptance, consent or
similar action is required of either Party by any provision of this
Agreement, such action will not be unreasonably withheld or delayed. An
approval or consent given by a Party under this Agreement will not
relieve the other Party from responsibility for complying with the
requirements of this Agreement, nor will it be construed as a waiver of
any rights under this Agreement, except as and to the extent otherwise
expressly provided in such approval or consent.
12.7 NOTICES. All notices under this Agreement will be in writing and will
be deemed to have been duly given if delivered personally or by a
nationally recognized courier service, faxed, electronically mailed or
mailed by registered or certified mail, return receipt requested,
postage prepaid, to the Parties at the addresses set forth in EXHIBIT
B. All notices under this Agreement that are addressed as provided in
this SECTION 12.7, (a) if delivered personally or by a nationally
recognized courier service, will be deemed given upon delivery, (b) if
delivered by facsimile or electronic mail, will be deemed given when
confirmed and (c) if delivered by mail in the manner described above,
will be deemed given on the fifth (5th) Business Day after the day it
is deposited in a regular depository of the United States mail. Either
Party from time to time may change its address or designee for
notification purposes by giving the other Party notice of the new
address or designee and the date upon which such change will become
effective.
12.8 FORCE MAJEURE.
(a) NO BREACH OR LIABILITY. No delay or failure of a Party to
perform any of its obligations, other than payment
obligations, under this Agreement due to causes beyond its
reasonable control shall constitute a breach of this Agreement
or render that Party liable for that delay or failure. Causes
beyond a Party's reasonable control include:
(i) events or circumstances that the Party, using its
Reasonable Efforts, is unable to prevent or overcome;
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(ii) as to Sabre, causes also beyond the reasonable
control of the Person to whom or which Sabre has
Subcontracted the affected Service or Task in
accordance with this Agreement; and
(iii) labor disputes, strikes, or other similar
disturbances; acts of God; utilities or
communications failures; acts of the public enemy;
and riots, insurrections, sabotage, or vandalism.
(b) NOTICE OF EXCUSABLE DELAY OR FAILURE. If a Party anticipates
any excusable delay or failure under SECTION 12.8(a), it shall
promptly Notify the other Party of the anticipated delay or
failure, the anticipated effect of that delay or failure, and
any actions that are being or are to be taken to alleviate or
overcome the cause of the delay or failure.
(c) EFFORTS TO OVERCOME. If a Party is claiming an excusable delay
or failure under SECTION 12.8, it shall use its Reasonable
Efforts to alleviate or overcome the cause of the delay or
failure as soon as practicable.
(d) EXTENDED DELAY OR FAILURE. If an excusable delay or failure
continues for more than [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED], the Party entitled to the benefit of the affected
obligation may perform itself or obtain from any other Person
the obligation to which that Party is entitled (and that Party
shall Notify the other Party of this election).
12.9 CONSTRUCTION RULES. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be
affected or impaired, and such provision will be deemed to be restated
to reflect the original intentions of the Parties as nearly as possible
in accordance with applicable law. The Parties agree that this
Agreement is an executory contract as contemplated by 11 U.S.C. Section
365. In performing its obligations under this Agreement, neither Party
will be required to undertake any activity that would conflict with the
requirements of any applicable law, rule, regulation, interpretation,
judgment, order or injunction of any governmental authority. This
Agreement may be executed in multiple counterparts, each of which will
be deemed an original and all of which taken together will constitute
one instrument. The Parties acknowledge and agree that each has been
represented by legal counsel of its choice throughout the negotiation
and drafting of this Agreement, that each has participated in the
drafting hereof and that this Agreement will not be construed in favor
of or against either Party solely on the basis of a Party's drafting or
participation in the drafting of any portion of this Agreement.
12.10 FURTHER ASSURANCES. The Parties will execute and deliver such other
instruments and documents, and take such other actions, as either Party
reasonably requests to evidence or effect the transactions contemplated
by this Agreement.
12.11 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of Texas, without
giving effect to any choice-of-law rules that may require the
application of the laws of another jurisdiction.
* * *
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IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement
as of the Effective Date.
TRAVELOCITY.COM LP SABRE INC.
By: TRAVELOCITY HOLDINGS, INC.,
Its general partner By: /s/ Jeffrey M. Jackson
---------------------------
Title: Sr. V.P. and CFO
By: /s/ Andrew B. Steinberg ------------------------
----------------------------------- Date: March 7, 2000
Title: Sr. Vice President, General -------------------------
Counsel and Corporate Secretary
--------------------------------
Date: March 7, 2000
---------------------------------
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DEFINITIONAL APPENDIX TO AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
A. DEFINED TERMS. In the Agreement, the following terms have the
corresponding meanings:
"AFFILIATE": A Person that directly or indirectly through one or more
intermediaries Controls, is Controlled by, or is under common Control with
another Person.
"AGREEMENT": The Amended and Restated Administrative Services Agreement between
Sabre and TCY (including the Definitional Appendix, the Dispute Resolution
Appendix, and the Schedules), as may be amended or supplemented from time to
time in accordance with its terms.
"AA": means American Airlines, Inc., a Delaware corporation.
"AA PASS-THROUGH SERVICE" has the meaning given in SECTION 4.1(b)(i).
"ARBITRATION RULES": The Rules for Commercial Arbitration of the American
Arbitration Association in effect at the time of an arbitration in accordance
with the Dispute Resolution Procedure.
"BREACH NOTICE": A Party's Notice to the other Party alleging a breach of the
Agreement (other than TCY's nonpayment of any amount related to an invoice) by
the other Party, which describes the alleged breach, to the extent known by the
notifying Party, and any particular cure or correction requested by the
notifying Party.
"BUDGETED SERVICE COSTS" has the meaning given in SECTION 4.1(a)(i).
"BUSINESS DAY": Any Monday through Friday, excluding any such day on which
banks are authorized to be closed in Texas.
"CONFIDENTIAL INFORMATION": All information identified by a Party as
confidential to which the other Party has access in connection with the
Services, whether before or after the Effective Date, and the Administrative
Services Agreement and the Parties' rights and obligations thereunder.
"CONTROL": The right to exercise, directly or indirectly, more than 50% of the
voting power attributable to the equity interests in an entity. ("Controlling"
and "Controlled" have correlative meanings.)
"CONSENT": The prior written consent of a Party (in any capacity) in its sole
discretion.
"DAMAGES": Losses, claims, obligations, demands, assessments, fines and
penalties (whether civil or criminal), liabilities, expenses and costs
(including reasonable fees and disbursements of legal counsel and accountants),
bodily and other personal injuries, damage to tangible property, and other
damages, of any kind or nature, actually suffered or incurred by a Person.
"Damages":
1. consists only of actual damages;
2. excludes any lost profits, lost income, or lost savings and any
punitive, exemplary, consequential, indirect, special, or incidental
damages (however described), even if the possibility of those losses
or damages was known; and
3. includes (except as may be reduced in accordance with the next
sentence) all fines, penalties, and interest paid or payable to any
Governmental Authority.
If TCY has Damages, for which Sabre is liable, consisting of fines,
penalties, and interest paid or payable to a Governmental Authority
corresponding to any tax not timely paid, then those "Damages" shall be reduced
by an amount equal to interest, [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED], accrued on that
1
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tax from the due date until that tax is paid; for the avoidance of doubt, in
this situation "Damages" shall not include any tax for which TCY would
otherwise be liable to the Governmental Authority. Also for the avoidance of
doubt, the "Damages" of a Person shall include any lost profits, lost income,
or lost savings and any punitive, exemplary, consequential, indirect, special,
or incidental damages (however described) awarded against that Person in favor
of another Person asserting a Third-Party Claim against that Person.
Notwithstanding anything to the contrary contained herein, "Damages" expressly
includes all payments required to be made by TCY, and all claims of Sabre for
payments required to be made by TCY, under this Agreement.
"DEFICIENCY": Sabre's failure, in rendering a Service or Task, to satisfy any
contractual requirements for performance established under the Agreement.
("Deficient" has the correlative meaning.)
"DEFINITIONAL APPENDIX": This Definitional Appendix to Administrative Services
Agreement, containing definitions and interpretive matters for, as an integral
part of, the Agreement.
"DISPUTE": Any dispute, disagreement, claim, or controversy arising in
connection with or relating to the Agreement, or the validity, interpretation,
performance, breach, or termination of the Agreement, including any claim of
breach of representation or warranty or of nonperformance and any claim
regarding bodily or other personal injury or damage to tangible property.
"DISPUTE RESOLUTION APPENDIX": The Dispute Resolution Appendix to, containing
the Dispute Resolution Procedure for, as an integral part of, the Agreement.
"DISPUTE RESOLUTION PROCEDURE": The procedure or process by which a Dispute
shall be resolved (except as otherwise stated in the Agreement) as described in
the Dispute Resolution Appendix.
"EFFECTIVE DATE": March 7, 2000, the date on which the Agreement becomes
effective.
"EXPIRATION": The expiration of the term of the Agreement as stated in, and as
may be renewed under, Article 2, without regard to any period of transition
assistance. For the avoidance of doubt, "Expiration" does not include a
termination of the Agreement under SECTION 10.1. ("Expire" and "Expired" have
correlative meanings.)
"GOVERNMENTAL AUTHORITY": Any federal, state, local, or foreign government or
governmental, quasi-governmental, administrative, or regulatory authority,
agency, body, or entity, including any court or other tribunal.
"INDEMNIFICATION CLAIM": A claim or demand of a Party, on its behalf or on
behalf of one or more of its Indemnified Agents, for indemnification under
SECTION 11.4.
"INDEMNIFICATION CLAIM NOTICE": A Notice from the Indemnified Party describing
an Indemnification Claim and the amount or the estimated amount of that
Indemnification Claim to the extent then feasible (though that estimate shall
not be determinative of the final amount of that Indemnification Claim).
"INDEMNIFICATION RESPONSE PERIOD": The [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after an Indemnification Claim Notice is given during which the
Indemnifying Party may investigate and determine its responsibility or
liability for an Indemnification Claim and, if relating to a Third-Party
Claim, Notify the Indemnified Party of the Indemnifying Party's election to
defend that Third-Party Claim.
"INDEMNIFIED AGENTS": Collectively, the officers, directors, employees, and
agents of a Party and, as to TCY, the TCY Companies and their respective
officers, directors, employees, and agents.
"INDEMNIFIED PARTY": A Party entitled to or seeking indemnification, on its own
behalf or on behalf of one or more of its Indemnified Agents, under SECTION
11.4.
"INDEMNIFYING PARTY": A Party that has or is alleged to have an obligation to
indemnify the other Party in response to an Indemnification Claim.
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"INFORMATION TECHNOLOGY SERVICES AGREEMENT": The Amended and Restated
Information Technology Services Agreement between Sabre and TCY dated March 7,
2000, as may be amended or supplemented from time to time in accordance with
its terms.
"LEGAL STAFF": Legal personnel that Sabre employs or otherwise engages.
"MANDATORY SERVICE": A Service that shall be rendered and paid for, and may not
be unilaterally discontinued under by TCY during the effectiveness of the
Agreement.
"NONCONFORMING SERVICE": A Service or Task that, as agreed by the Parties or
otherwise determined by the Dispute Resolution Procedure, was or is Deficient.
"NONPAYMENT NOTICE": A Notice from Sabre to TCY that describes an amount
related to an invoice to TCY that Sabre has not received when due, which shall:
1. constitute a demand for payment of the described amount; and
2. state that either termination of the Agreement or cessation of
transition assistance, whichever is applicable, by Sabre may result if
the described amount is not paid by the tenth Business Day after that
Notice is given.
"NOTICE": A written communication complying with SECTION 12.7. ("Notify" has
the correlative meaning.)
"OPTIONAL SERVICE": A Service that may be unilaterally discontinued by either
Party in accordance with the Agreement.
"PARTIES": Collectively, Sabre and TCY. ("Party" means either Sabre or TCY.)
"PERSON": An individual; a corporation, partnership, trust, association, or
entity of any kind or nature; or a Governmental Authority.
"PRICE": The amount or rate, in either case whether fixed or variable and
however measured, charged to TCY for a Service, as agreed by the Parties.
"PROCEEDINGS": Any action, suit, claim, investigation, demand, audit, or other
proceedings by or before any Governmental Authority or any arbitration
proceedings.
"REASONABLE CONSENT": The prior written consent of a Party (in any capacity),
which may not be unreasonably withheld or delayed.
"REASONABLE EFFORTS": The efforts of a Party that are commercially reasonable
under the circumstances, which do not require a Party to institute or prosecute
any Proceedings or to pay any Person other than that Party's representatives or
agents, including (only as to Sabre) Subcontractors.
"REPRESENTATIVES": Collectively, Sabre's Representative and TCY's
Representative.
"SABRE": Sabre, Inc., a Delaware corporation.
"SABRE'S REPRESENTATIVE": The individual agent or representative designated by
Sabre to be Sabre's formal liaison with or representative to TCY for matters
relating to the Agreement, having the (non-exclusive) authority and
responsibility described in the Agreement.
"SABRE'S TRANSITION CHARGES": The sum of the following, incurred in or
resulting from Sabre's compliance with requests for transition assistance for
up to [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after Expiration or
during the Transition Period (as the case may be):
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[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
"SCHEDULE": A Schedule to the Agreement that describes a Service, and the
location or locations at which that Service is to be rendered if not at Sabre's
offices or Subcontracted.
"SERVICE": An individual management service, to be rendered by Sabre under the
Agreement, that is described as a "Service" in a Schedule. A Service may also
be described in a Schedule by all or a portion of its constituent Tasks.
"SERVICE SUBCONTRACT": An agreement or arrangement, oral or written, under
which a Subcontractor is to render or perform any Service or Task on Sabre's
behalf or in Sabre's stead.
"SUBCONTRACT": Sabre's entering into a Service Subcontract. ("Subcontracted"
and "Subcontracting" have correlative meanings.)
"SUBCONTRACT TERMINATION PENALTY": An obligation described in, as part of the
terms of, a Service Subcontract to pay the Subcontractor a charge, fine,
penalty, or other amount upon the termination or partial termination of that
Service Subcontract, including any return to the Subcontractor of any equipment
or goods held under that Service Subcontract.
"SUBCONTRACTOR": A Person, other than an employee of Sabre, who or which enters
into a Service Subcontract with Sabre.
"SUBSIDIARY": As to any Person, any other Person of which more than fifty
percent (50%) (in number of votes) of the issued and outstanding securities
having ordinary voting power for the election of at least a majority of the
directors is owned or controlled, directly or indirectly, by that Person.
"TASK": Any one of the group of processes, procedures, or services that is
described in a Schedule as constituting, or included in, a Service.
"TCY ALLOCABLE PERCENTAGE" has the meaning given in Section 4.1(a)(ii).
"TERMINATION DATE": The date on which the Agreement is terminated in accordance
with SECTION 10.1, without regard to any Transition Period.
"THIRD-PARTY CLAIM": A claim of liability asserted against either Party by a
Person other than the other Party or either Party's Indemnified Agents.
"TRANSITION PERIOD": The maximum [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after the Termination Date during which Sabre shall, as TCY
reasonably requests, render one or more Services in accordance with SECTION
10.3(a) or provide transition assistance in accordance with SECTION 10.3(b).
"TCY": Travelocity.com LP, a Delaware limited partnership.
"TCY COMPANY": Travelocity.com Inc., a Delaware corporation, and any entity
over which TCY has Control.
"TCY'S REPRESENTATIVE": The individual agent or representative designated by
TCY to be TCY's formal liaison with or representative to TCY for matters
relating to the Agreement, having the (non-exclusive) authority and
responsibility described in the Agreement.
B. INTERPRETATIVE MATTERS. The Agreement is the result of the Parties'
negotiations, and no provision of the Agreement shall be construed for or
against either Party because of the authorship of that provision. In the
interpretation of the Agreement, except where the context otherwise requires:
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1. "including" or "include" does not denote or apply any limitation;
2. "or" has the inclusive meaning "and/or";
3. "$" refers to United States dollars;
4. the singular includes the plural, and vice versa, and each gender includes
each of the others;
5. captions or headings are only for reference and are not to be considered in
interpreting the Agreement;
6. "Article" and "Section" refer to an Article and Section, respectively, of
the Agreement, unless otherwise stated in the Agreement;
7. an event to occur, an action to be performed, or a condition to be satisfied
"by" or "as of" a stated date in the Agreement shall occur or be effective or
satisfied no later than 5:00 p.m. on that date; and
8. each reference to a time of day in the Agreement is to local time in Fort
Worth, Texas, and "midnight" begins a day.
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EXHIBIT A
DISPUTE RESOLUTION APPENDIX
1. CERTAIN DEFINITIONS
This Section 1 sets forth certain definitions used in this Dispute Resolution
Process. Other capitalized terms used but not defined here in have the meanings
ascribed to them in the Agreement.
ARBITRATION RULES
The rules of the American Arbitration Association ("AAA") in effect on the date
of the commencement of the arbitration.
QUALIFICATIONS Having extensive knowledge or experience, or both, regarding
information technology services similar to the Services that are the subject
of the Dispute, and fluent in English.
2. DISPUTE RESOLUTION PROCEDURE.
(a) GENERAL PROCEDURE.
The Parties shall resolve all Disputes in accordance with
this procedure:
(i) Disputes shall first be submitted to the
Representatives as indicated in Section 3 of this
Exhibit.
(ii) If a Dispute is not resolved by the Representatives,
then either Party may submit the Dispute to
mediation as outlined in Section 4 of this Exhibit.
(iii) If a Dispute is not resolved by mediation, then
either Party may submit the Dispute to binding
arbitration in accordance with Section 5 of this
Exhibit.
A referral under either Section 2(a)(ii) and/or 2(a)(iii) of
this Exhibit shall be made by written notice to the
Representatives. That notice shall be in a form mutually
agreed to by the Representatives or an electronic mail
message and addressed to each Representative at his or her
office address or electronic mail address; each notice shall
be given and effective upon actual receipt.
3. DISPUTE RESOLUTION.
(a) REPRESENTATIVE ACTION.
If the Dispute (a) involves less than [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED], and (b) does not require
an amendment to the Services, Fees or any other material term
of the Agreement, the Representatives will discuss the
Dispute in good faith in an attempt to resolve the Dispute to
the mutual satisfaction of both Parties. If the
Representatives are unable to resolve the Dispute to the
mutual satisfaction of both Parties within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after receipt of written
notice by one Party from the other that a Dispute exists, the
Dispute shall, at the written request of either Party, be
submitted to mediation as outlined in Section 4 of this
Exhibit.
4. MEDIATION.
The mediation of an unresolved Dispute shall be conducted in this manner:
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(a) Either Party may submit the Dispute to mediation by giving
notice of mediation to the other Party. The Parties shall
attempt to agree promptly after that notice is given upon and
appoint a sole mediator who has the Qualifications.
(b) If the Parties are unable to agree upon a mediator within
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the
date the Dispute is submitted to mediation, either Party may
request the Dallas, Texas office of the AAA to appoint a
mediator who has the Qualifications. The mediator so
appointed shall be deemed to have the Qualifications and to
be accepted by the Parties.
(c) The mediation shall be conducted in Dallas, Texas at a place
and a time agreed by the Parties with the mediator, or if the
Parties cannot agree, as designated by the mediator. The
mediation shall be held within [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after the mediator is appointed.
(d) If either Party has substantial need for information from the
other Party in order to prepare for the mediation, the
Parties shall attempt to agree on procedures for the formal
exchange of information; if the Parties cannot agree, the
mediator's determination shall be effective.
(e) Each Party shall be represented in the mediation by a natural
person with authority to settle the Dispute on behalf of that
Party and, if desired by that Party, by counsel for that
Party. The Parties' representatives in the mediation shall
continue with the mediation as long as the mediator requests.
(f) Unless otherwise agreed by the Parties, each Party shall pay
one-half of the mediator's fees and expenses and shall bear
all of its own expenses in connection with the mediation.
Neither Party may employ or use the mediator as a witness,
consultant, expert, or counsel regarding the Dispute or any
related matters.
5. ARBITRATION.
The arbitration of an unresolved Dispute shall be conducted in this manner:
(a) Either Party may begin arbitration by filing a demand for
arbitration in accordance with the Arbitration Rules. The
Parties shall attempt to agree upon and appoint a panel of
three (3) arbitrators promptly after that demand is filed.
Each of those arbitrators must have the Qualifications unless
otherwise agreed by both Parties.
(b) If the Parties are unable to agree upon any or all of the
arbitrators within [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after the demand for arbitration was filed (and do
not agree to an extension of that [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED]), then each Party shall
designate one arbitrator with Qualifications and the AAA
shall designate a third, if possible, with Qualifications;
nevertheless, such arbitrator so appointed shall be deemed to
have the Qualifications and to be accepted by the Parties as
part of the panel.
(c) The arbitration shall be conducted in Dallas, Texas at a
place and a time agreed by the Parties with the panel, or if
the Parties cannot agree, as designated by the panel. The
panel may, however, call and conduct hearings and meetings at
such other places as the Parties may agree or as the panel
may, on the motion of one Party, determine to be necessary to
obtain significant testimony or evidence.
(d) The Parties shall attempt to agree upon the scope and nature
of any discovery for the arbitration. If the Parties do not
agree, the panel may authorize any and all forms of
discovery, including depositions, interrogatories, and
document production, upon a showing of particularized need
that the requested discovery is likely to lead to material
evidence needed to resolve the Dispute and is not excessive
in scope, timing, or cost.
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(e) The arbitration shall be subject to the Federal Arbitration
Act and conducted in accordance with the Arbitration Rules to
the extent they do not conflict with this Section 5. The
Parties and the panel may, however, agree to vary the
provisions of this Section 5 or the matters otherwise
governed by the Arbitration Rules.
(f) The panel has no power to:
(i) rule upon or grant any extension, renewal, or
continuance of the Agreement;
(ii) award remedies or relief either expressly prohibited
by the Agreement or under circumstances not
permitted by the Agreement; or
(iii) grant provisional or temporary injunctive relief
before rendering the final decision or award.
(g) Unless the Parties otherwise agree, all Disputes regarding or
related to the same topic or event that are subject to
arbitration at one time shall be consolidated in a single
arbitration proceeding.
(h) A Party or other person involved in an arbitration under this
Section 5 may join in that arbitration any person other than
a Party if:
(i) the person to be joined agrees to resolve the
particular dispute or controversy in accordance with
this Section 5 and the other provisions of this
Schedule applicable to arbitration; and
(ii) the panel determines, upon application of the person
seeking joinder, that the joinder of that other
person will promote the efficiency, expedition, and
consistency of the result of the arbitration and
will not unfairly prejudice any other Party to the
arbitration.
(i) The arbitration hearing shall be held within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after the appointment of
the panel. Upon request of either Party, the panel shall
arrange for a transcribed record of the arbitration hearing,
to be made available to both Parties.
(j) The panel's final decision or award shall be made within
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the
hearing. That final decision or award shall be made by
unanimous or majority vote or consent of the arbitrators
constituting the panel, shall be deemed issued at the place
of arbitration and shall be made in U.S. dollars. The panel
shall issue a reasoned written final decision or award based
on the Agreement and Texas law; the panel may not act
according to equity and conscience or as an amicable
compounder or apply the law merchant.
(k) The panel's final decision or award may include:
(i) recovery of general damages to the extent permitted
by the Agreement (but not consequential, exemplary
or punitive damages); or
(ii) injunctive relief in response to any actual or
threatened breach of the Agreement or any other
actual or threatened action or omission of a Party
under or in connection with the Agreement.
(l) The panel's final decision or award shall be final and
binding upon the Parties, and judgment upon that decision or
award may be entered in any court having jurisdiction over
either or both of the Parties or their respective assets. The
Parties specifically waive any right they may have to apply
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or appeal to any court for relief from the preceding sentence
or from any decision of the panel made, or any question of
law arising, before the final decision or award; and the
Parties shall not dispute nor question the validity of such
award before any regulator or other authority in any
jurisdiction where enforcement action is taken by the Party
or Parties in whose favor the award was rendered. If any
decision by the panel is vacated for any reason, the Parties
shall submit that Dispute to a new arbitration in accordance
with this Section 5.
(m) Each Party shall pay one-half of the arbitrators' fees and
expenses, and shall bear all of its own expenses in
connection with the arbitration. The panel has the authority,
however, to award recovery of all costs and fees (including
attorneys' fees, administrative fees and the panel's fees and
expenses) to the prevailing Party in the arbitration.
6. RECOURSE TO COURTS.
Nothing in this Schedule limits the right of either Party to apply to a court
or other tribunal having jurisdiction to:
(a) enforce this Schedule, including the agreement to arbitrate
in this Schedule;
(b) seek provisional or temporary injunctive relief so as to
avoid irreparable damage or maintain the status quo, until a
final arbitration decision or award is rendered or the
Dispute is otherwise resolved; or
(c) challenge or vacate any final arbitration decision or award
that does not comport with Section 5 of this Schedule.
7. SUBMISSION TO JURISDICTION.
Each Party irrevocably submits to the jurisdiction of the federal courts of the
United States and the state courts of Texas located in Fort Worth. Each Party
waives any defense or challenge to that jurisdiction based on lack of personal
jurisdiction, improper venue, or inconvenience of forum.
8. CONFIDENTIALITY.
The proceedings of all negotiations, mediations, and arbitrations shall be
privately conducted. The Parties shall keep confidential all conduct,
negotiations, documents, decisions, and awards in connection with those
proceedings under this Schedule.
9. EXCLUSIVE REMEDY.
Other than those matters involving injunctive or other extraordinary relief or
any action necessary to enforce the award of the arbitrator, the Parties agree
that the provisions of this Schedule are a complete defense to any suit, action
or other proceeding instituted in any court or before any administrative
tribunal with respect to any Dispute or the provision of the Base Services or
Variable Services by Sabre. Nothing in this Exhibit prevents the Parties from
exercising their rights to terminate the Agreement in accordance with Article X
of the Agreement.
10. CONTINUED PERFORMANCE; ESCROW ACCOUNT.
Unless (a) Sabre has commenced a proceeding or has presented a claim for
nonpayment by Customer of amounts due under the Agreement, and Customer does
not promptly pay all amounts in dispute into the escrow account referred to
below, or (b) the Agreement has been terminated in accordance with Article X,
Sabre will continue to provide the Services during any dispute resolution
proceedings (whether informal or formal) commenced pursuant to this Exhibit
and Customer will continue to perform its obligations (including the making of
payments to Sabre) in accordance with the Agreement. Up to the maximum amount
in dispute, any disputed payment will be paid pending resolution of the
Dispute into an escrow account that is structured by agreement of the Parties
or, if agreement cannot be reached, as directed by the mediator or arbitrator,
as the case may be, engaged in accordance with this
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Exhibit. Any such escrow account will provide for the payment of interest on
the amounts deposited therein, and the Parties (if the Dispute is resolved
informally) or the mediator or arbitrator, as the case may be (if the Dispute
is resolved formally), will make the determination regarding distribution of
such deposited amounts plus interest. If Customer fails to escrow disputed
payments as required by the Agreement, Sabre may apply to any court of
competent jurisdiction to seek injunctive relief for such failure and will
have the right to terminate the Agreement in accordance with Article X of the
Agreement.
11. OTHER.
(a) U.N. CONVENTION.
The enforcement of any arbitral award will be in accordance
with and governed by the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards.
(b) LANGUAGE.
Negotiations, mediations and arbitrations will be conducted
in the English language.
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EXHIBIT B
NOTICE
If to Sabre:
Sabre Inc.
MD 4204
4255 Amon Carter Blvd.
Fort Worth, TX 76155
Fax: (817) 967-1215
Attention: President
With a copy to:
Sabre Inc.
MD 4204
4255 Amon Carter Blvd.
Fort Worth, TX 76155
Fax: (817) 967-1215
Attention: General Counsel
If to TCY:
Travelocity.com LP
4200 Buckingham Road, MD 1400
Fort Worth, Texas 76155
Fax: (817) 963-8869
Attention: President
With a copy to:
Travelocity.com LP
4200 Buckingham Road, MD 1400
Fort Worth, Texas 76155
Fax: (817) 963-8869
Attention: General Counsel
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EXHIBIT C
ADDITIONAL OPTIONAL SERVICES
The Services currently described on the Schedules, which are not initially
selected by TCY on Schedule XIV.
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ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
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SCHEDULES
ADMINISTRATIVE SERVICES AGREEMENT
<PAGE>
ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
--------------------------------------------------------------------------------
Note: Certain of the Services and Tasks described below will not be relevant to
TCY's business and operations. To the extent that such Services and Tasks are
not relevant, then Sabre will not perform such Services or Tasks for TCY, and
TCY will not be required to pay for such Services or Tasks.
Schedule I
TAX ADMINISTRATION SERVICE (MANDATORY)
DESCRIPTION OF SERVICE: Tax Administration is defined as tax research and
planning and tax return preparation in compliance with tax statutes and
regulations. The Tasks to be performed under Tax Administration Service
(Mandatory) consist of:
A. U.S. federal and state income tax compliance
i. tax return preparation and tax payment processing
ii. representation on audits and contests
iii. management of development of tax and accounting systems to
minimize compliance costs
B. U.S. federal and state income tax accounting and reporting
i. income tax account analysis
ii. tax provision accounting
C. U.S. federal and state income tax planning and projects
i. research and planning to assess impact of taxes on operations
and on proposed transactions
ii. legislative and regulatory monitoring
D. Sales/use, excise, property and other transaction taxes
i. Tax return preparation and property tax rendition filing
ii. Tax payment processing
iii. Audits and contests
iv. Research and planning
v. Monitor legislation and regulations effecting the business
vi. Tax accounting
E. International
i. Manage tax return preparation and VAT collection calculations
ii. Foreign audits and contests
iii. Research and planning
iv. Monitor legislation and regulations effecting the business
v. Tax accounting
F. Systems Development
i. Develop design specifications for the new financial and
logistics systems to automate the tax functions
ii. Assisting in the developments of semi-automated accounting
systems
iii. Maintenance and modifications of tax systems
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ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
--------------------------------------------------------------------------------
Schedule II
HUMAN RESOURCES GOVERNMENT REPORTING SERVICE (MANDATORY)
DESCRIPTION OF SERVICE: Tasks to be performed to support TCY's compliance with
U.S. Federal human-resources-related reporting statutes. The Tasks to be
performed consist of:
A. Summary Plan Descriptions
B. Pension Annual Reporting and Disclosure, maintaining ERISA
administration requirements, plan documentation, research and analysis,
ADA accommodations, and Affirmative Action / Department of Labor / EEO
administration.
C. State unemployment compensation administration, including responding to
State and Federal government agencies (including State unemployment
compensation claims, and claims regulated by State and Federal equal
employment opportunity agencies); processing unemployment compensation
claims; monitoring charges to TCY unemployment accounts in each State;
and administering rates assigned by States.
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ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
--------------------------------------------------------------------------------
Schedule III
ACCOUNTING SERVICES
CASH ACCOUNTING SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Reconciliation of domestic bank accounts
B. Identification and resolution of cash irregularities and cash reporting
issues
C. Primary internal control relative to cash
D. Recognition of foreign currency adjustments
E. Investigation, resolution and subsequent clearing of reconciling items
RECEIVABLES SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Receivable Billing/Accounting
i. Bill posting to the receivable sub-ledger system
ii. Cash applications
iii. Coordination of settlement with Airlines Clearing House, or
IATA Clearing House
iv. Account reconciliation, and receivable servicing
PAYROLL PRODUCTION SERVICE
DESCRIPTION OF SERVICE: Responsible for the calculation and distribution of
payroll checks and incentive compensation checks. The Tasks to be performed
consist of:
A. Regular Checks - Processing of regular paychecks on a weekly,
bi-weekly, and semi-monthly basis
B. Remote Checks - Processing of remote or supplemental paychecks for
adjustments
C. Gross Pay Adjustments to be completed during the next regular pay
period
D. Garnishments
E. Stop payments for lost or stolen paychecks
F. Bonuses and Special Payments - Processing of special payments that
require development changes
PAYROLL TAX ACCOUNTING SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Payroll Taxes - Charges for the collection, remittance and accounting
for payroll taxes and other moneys collected from employee paychecks.
The cost is driven by the number of payroll checks that are processed
in one calendar year.
B. Payroll Tax Reporting - Charges for reporting for Federal and State
withholding and unemployment taxes. The costs are driven by the number
of states worked.
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ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
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C. Payroll Tax Year End - Charges for the year end production of annual
wage and tax statements. The cost is driven by the number of W-2s
issued in one calendar year, and the number of states worked.
PAYROLL CUSTOMER SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Employment Verification - Completion of the wage and employment
information requested by lending institutions.
B. W-2 Reissues.
C. Employment Receivables - The administration and collection of balances
from employees for advances, uniforms, and salary overpayments, check
distribution special handling.
NOTE that certain related fees are paid directly by TCY, its employees,
or relevant lending institutions.
DISBURSEMENTS PRODUCTION SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Usage of EDI Mailbox and translator, Federal Express
B. Other EDI
C. Audit and Processing of contract based payments
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ADMINISTRATIVE SERVICES AGREEMENT SCHEDULE OF SERVICES
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Schedule IV
HUMAN RESOURCES ADMINISTRATION
DESCRIPTION OF SERVICE: The Service consists of:
Employment relations administration generally, but excluding mandatory Services
described on Schedule II, and further consisting of the following Tasks:
SERVICE DESCRIPTION
Providing and Managing Health and Welfare Benefits
Management and Professional Recruitment
College Recruitment
Support Staff Recruitment
Managing Employee Information and Documentation
Managing Employee Performance and Terminations
Compensating Employees and Job Leveling
Bonus Commission Programs
Providing Retirement Benefits
Training Management
Maintain Human Resources Information System (HRIS)
Providing and Managing Workers Compensation
Facilitating Management Career Moves
Developing Admin / Interpreting Corporate Policy
Assisting AMR Executives - Executive administration
Evaluating Employees and their Performance Progress
Relocating Employees
Admin and Cost Control
Managing employees' employment-related complaints
Executive compensation administration
Family Medical Leave Act Application Processing and Program Administration
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Schedule V
Medical Services
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A) Employee Assistance Program Services (as required by the Federal Drugfree
Workplace Act)
B) Full TCY Employee Access to all Sabre Preventive Healthcare Programs
C) Ergonomics Support Including Workstation Design And Other OSHA Required for
all Ergonomics Services
D) ADA-Related Ergonomic Accommodations Work
E) Occupational Healthcare Litigation Support
F) Full Access to all Sabre Travel Medicine Databases, and Applicable
Occupational Healthcare Record Keeping (but not OSHA Log Record keeping).
G) New Hire Physicals--Non-Safety Sensitive
H) Clinic - Employee Visit
I) Employee Drug and Alcohol Testing
K) Other services will be provided to TCY on a by-request basis
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Schedule VI
FINANCIAL SERVICES
General Corporate Finance Services
DESCRIPTION OF SERVICE: As more fully described below, Sabre Finance Department
will provide TCY centralized finance services. The Tasks to be performed by
Sabre consist of:
A. Cash Management Strategies
B. Consolidated Financial Planning and Analysis
C. Business Insurance Administration
D. Financial Systems Services
E. Strategic Planning and Corporate Development Advisory Services
F. Investor Relations
BANKING/CASH MANAGEMENT SERVICE
DESCRIPTION OF SERVICE: Sabre shall provide TCY centralized cash management
services which are substantially the same as the cash management services
provided by Sabre to TCY immediately prior to the Effective Date. The Tasks to
be performed by Sabre consist of:
A. Cash Management Strategies
i. optimize the utilization of the daily cash activity
ii. maintain separate bank accounts for TCY and, in connection
therewith, open and close bank accounts, as required
iii. design, develop and implement enhanced, practical,
cost-efficient cash management processes
iv. negotiate for new improved bank services
v. review bank services and fees
B. Cash Mobilization
i. initiate properly approved wire transfers
ii. collect all available bank account balances
iii. fund all disbursements accounts
iv. coordinate daily with investment services resources for all
cash excess/shortfalls
v. generate, as needed, advance to and/or from Sabre
C. Coordination of Letters of Credit
D. Pass-Through expense of banking service charges
E. Cash Investment - transfer excess cash to investment services
resources, which will invest such cash in a manner consistent with the
investment objectives utilized by the investment services resources for
TCY as of the date of this Agreement.
CORPORATE FINANCE SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Coordination of Financing Decisions
B. Risk Assessment and Management
C. Financing Administration
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BUSINESS INSURANCE ADMINISTRATION SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Negotiation of Insurance Policy Terms and Premiums
B. Contract Review and Revisions
C. Claims Handling
D. Calculation for the allocation of insurance premiums to TCY
TCY may determine, in its discretion, whether to obtain its own business
insurance policies or to participate in one or more business insurance policies
obtained or arranged by Sabre. To the extent that TCY elects (by agreement with
Sabre) to so participate, TCY shall pay a portion of the premiums for the
insurance policies in which it participates based on an allocation methodology
agreed upon by the Parties for those policies.
FINANCIAL SYSTEMS SERVICE
DESCRIPTION OF SERVICE: Tasks consist of providing usage of Financial Services
systems applications, including SAP.
STRATEGIC PLANNING
Strategic planning services.
INVESTOR RELATIONS
Investor relations services
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Schedule VII
GENERAL CORPORATE SERVICES
SABRE SUPPLY MANAGEMENT SERVICE
DESCRIPTION OF SERVICE: The Supply Management Service will be performed in
accordance with a corresponding power of attorney granted to Sabre. The Tasks to
be performed are needs identification, bid proposals, awarding process, ordering
process, delivery process, payment and maintenance process for:
A. Hardware Purchases including Personal Computers, Telecommunications
Equipment, and Printers
B. Software Purchases and Licensing Agreements
C. Telecom Services and Maintenance Contracts
CORPORATE SECURITY SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Investigations
B. Consultation & Representation
C. Ticket Loss Prevention
D. Audits & Tests
E. Instruction
F. Administration
SAFETY ADMINISTRATION SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Ground Safety
i. Employee Injury and Illness
ii. Ergonomic Program
iii. Safety Audits
iv. OSHA Administration
v. Industrial Hygiene Program
vi. Safety Training
B. Environmental Safety
i. Environmental Assessments
ii. Environmental Training
iii. Legal & Lobbying
iv. Environmental Regulations
v. Technical Assistance and Support
vi. Program and Professional Development Services
vii. Waste Minimization Programs
viii. Recycling Programs
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GENERAL SERVICES DEPARTMENT
DESCRIPTION OF SERVICE: The Services (which are not merely Tasks) to be
performed will consist of:
1.1 Services
A. Archives
B. Reserved Parking Permits Administration
C. Mail Services includes mailings by USPS below 1,000 pieces
D. USPS Postage for orders exceeding 1,000 pieces not covered by Mail
Services
E. HDQ Telephone Directory
i. Maintain Corporate Mailing Lists
ii. Maintain Company Regulations
F. Administration of contracts executed between Sabre and subcontractors
for Services not performed by Sabre employees
GENERAL SERVICES' PASS-THROUGH EXPENSES SERVICE
DESCRIPTION OF SERVICE: Sabre pays Subcontractors for the following Services
(which are not merely Tasks). The list below represents a pass-through of
expenses allocable to TCY.
1.2 Services
A. Employee Shuttle Service DFW/HDQ/DFW
B. Paper Supplier
C. Installation and Management of Copiers
D. Printing and Mailing Services
E. Cafeteria and Vending Services
CPIV and Trinity
[Buildings Served: Sabre is offering General Services to TCY at the following
locations:
CPI CPIV
CORPORATE CARD SERVICE
A. Administration of Corporate Card
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Schedule VIII
LEGAL SERVICES
DESCRIPTION OF SERVICE: Tasks consist of rendering professional legal services
for matters in the following areas:
A. Labor and Employment Law
i. Labor Litigation
ii. Equal Employment Opportunity Commission Claims (EEOC)
iii. Department of Human Rights Claims (DHR)
iv. Railway Labor Act Issues and Claims
v. OSHA Issues and Claims
vi. Environmental Issues and Claims
vii. Immigration Filings
viii. Garnishments
ix. ERISA Issues
B. Litigation
i. Commercial Litigation
ii. Antitrust Litigation
iii. EC Regulation
iv. CRS Issues
v. Federal Aviation Administration Issues and Claims (FAA)
vi. Subpoenas
C. Corporate Law
i. Contract Review and Preparation
ii. Mergers and Acquisitions
iii. Corporate Registrations
iv. Corporate and Securities law compliance
v. Real Estate
vi. Bankruptcy
vii. Intellectual Properties
viii. Customs
D. Corporate Finance
i. Public Financing
ii. Private Financing
iii. SEC Regulations
E. General Regulatory Matters
F. Government Affairs Service
i. U.S. Federal Government Regulations
ii. State and Local Government Relations
iii. Coordination of Sabre Lobbying Efforts at all levels of
Government
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Schedule IX
AUDIT SERVICE
DESCRIPTION OF SERVICE: Conducting internal audits and coordinating external
audit functions.
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Schedule X
FACILITIES SERVICES
DESCRIPTION OF SERVICE: The Tasks to be performed at the current TCY locations,
and other locations agreed to by the parties, will consist of:
A. Facilities Support
i. Space Programming Studies
ii. Manage Design Professionals
iii. Cost Estimations/Refinement for New Projects
iv. Evaluate Requests for Proposals (RFPs)
v. Value Engineering
vi. Project Feasibility Studies
vii. Bidding and Contract Negotiations
viii. Project Management
ix. Contract Audit Control
x. Project Close Out
xi. HDQ Space Planning
B. Properties Support
i. Rate and Change Evaluation
ii. Tenant and Landlord Liaison
iii. Negotiation of New Leases
iv. Negotiation of Additional Services under Leases
v. Property Management
vi. Real Estate Market Analysis
C. Planning and Technical Support
i. Environmental Engineering
ii. Energy Audits
iii. Automation Environment
iv. Pre-Conditioned Air/Ground Power
v. Material Handling Systems
D. Facilities Maintenance Pass-Through Expense
i. Sabre General Services pay Subcontractors providing facilities
maintenance services (e.g., hazardous waste removal,
janitorial services and pest control), for Prices consisting
only of a pass-through of expenses (under the Service
Subcontracts) allocable to TCY.
E. Utilities Management Services
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Schedule XI
CORPORATE COMMUNICATIONS SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Strategic Planning & Counseling
B. Media Relations
C. Marketing Communications
D. Issues Management
E. Project Management
F. Executive Support
G. Internal Communications
H. On-Line Communications
I. Financial Reporting Communications
J. Administration and Clerical Duties
K. Community Relations
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Schedule XII
CORPORATE TRAVEL SERVICES
OTHER AIRLINE (OA) PERSONAL TRAVEL ADMINISTRATION SERVICE
DESCRIPTION OF SERVICE: Sabre will provide administrative support for TCY's
personal travel on Other Airlines (OA). Tasks to be performed consist of:
A. Secure of agreement with Other Airlines (OAs)
i. Draft cover letters
ii. Revise Sabre ID agreement to include the TCY
iii. Negotiate new arrangements with each airline
iv. Conclude and execute revised agreements
B. Contract Maintenance
i. Ongoing negotiations
ii. Secure additional carriers
iii. Conflict resolution with OAs
iv. Contract preparation and filing
C. Administrative Support
i. Provide updates to TCY reference material
ii. Respond to employee inquiries
iii. Prepare PNRs for ticketing
iv. Provide OA with pay-back passes on AA
OTHER AIRLINE (OA) BUSINESS TRAVEL ADMINISTRATION SERVICE
DESCRIPTION OF SERVICE: Sabre will provide administrative support for the TCY's
business travel on Other Airlines (OA). Tasks to perform consist of:
A. Secure Business Travel on Other Airlines
i. Negotiate arrangements with other airlines
ii. Provide other airlines travel on AA
B. Contract Maintenance
i. Process TCY pass requests
ii. Process OA business travel requests
C. Administrative Support
i. Provide updates to the TCY reference manual
ii. Respond to employee inquiries
iii. Prepare PNRs for ticketing
CORPORATE TRAVEL DESK SERVICE
DESCRIPTION OF SERVICE: The Tasks to be performed consist of:
A. Booking of Hotels for Business Travel and Interline Rates
B. Booking for Rental Vehicles for Business Travel at Interline Rates
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Schedule XIII
Executive Office Functions
DESCRIPTION OF SERVICE: Sabre provides executive office support, for its
Subsidiaries (including TCY), in the following areas of executive function:
A. Chief Executive Office
B. Chief Financial Officer
C. Chief Information Officer
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Schedule XIV
TCY Allocable Percentage for Year 2000
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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