Tax Agreement - Orbitz Inc., American Airlines Inc., Continental Airlines Inc., Omicron Reservations Management Inc., Northwest Airlines Inc. and UAL Loyalty Services Inc.
TAX AGREEMENT
THIS TAX AGREEMENT (this "AGREEMENT"), is made as of November 25, 2003,
by and among Orbitz, Inc., a Delaware corporation (the "Corporation"),
American Airlines, Inc., a Delaware corporation ("AMERICAN"), Continental
Airlines, Inc., a Delaware corporation ("CONTINENTAL"), Omicron Reservations
Management, Inc., a Delaware corporation ("DELTA"), Northwest Airlines, Inc.,
a Minnesota corporation ("NORTHWEST"), and UAL Loyalty Services, Inc., a
Delaware corporation ("UAL LOYALTY SERVICES" and, together with American,
Continental, Delta and Northwest, the "AIRLINES").
RECITALS
WHEREAS, the Airlines hold Class A LLC Units and Class B LLC Units (the
"AIRLINE LLC UNITS") in Orbitz, LLC, a Delaware limited liability company
(the "OPERATING COMPANY");
WHEREAS, the Corporation holds Class C LLC Units in the Operating
Company;
WHEREAS, pursuant to the Exchange Agreement, dated as of November 25,
2003 (the "EXCHANGE AGREEMENT"), by and among the Corporation, the Operating
Company and the Airlines, the Airlines have agreed to exchange (the
"EXCHANGE") their Airline LLC Units for shares of the Corporation's common
stock and Series A non-voting convertible preferred stock (the "NON-VOTING
CONVERTIBLE PREFERRED STOCK");
WHEREAS, pursuant to the Exchange Agreement, the Operating Company will
make a Section 754 Election (as defined herein);
WHEREAS, pursuant to an agreement dated as of November 25, 2003 (the
"PREFERRED STOCK PURCHASE AGREEMENT"), the Airlines entered into a binding
commitment to sell the Non-Voting Convertible Preferred Stock to SAM
Investments LDC, a Cayman Islands company;
WHEREAS, after giving effect to the Exchange, the Corporation will be in
Control of the Operating Company;
WHEREAS, in connection with the Exchange, the Corporation and the Airlines
desire to set forth the principles and responsibilities regarding the allocation
of Realized Tax Benefits (as defined herein) that are attributable to the
Exchange;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
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ARTICLE 1
DEFINITIONS
Capitalized terms used and not otherwise defined in this Agreement shall
have the meanings specified in the Exchange Agreement. As used in this
Agreement, capitalized terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined).
"AFFILIATE" means, in respect of any specified Person, a Person that
directly or indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, the Person specified.
"AGREEMENT" has the meaning set forth in the Recitals.
"AIRLINE" has the meaning set forth in the Recitals.
"AIRLINE CONTEST RIGHTS" has the meaning set forth in SECTION 5.3(b).
"AIRLINE INDEMNIFIED PARTIES" has the meaning set forth in SECTION 4.2.
"AIRLINE LLC UNITS" has the meaning set forth in the Recitals.
"AMERICAN" has the meaning set forth in the Recitals.
"APPLICABLE PROCEEDINGS" has the meaning set forth in SECTION 5.3(a).
"BANKRUPTCY EVENT" shall have the meaning set forth in SECTION 3.7(b).
"BASIS STEP-UP" means the increase in the tax basis of the Operating
Company's assets as a result of the Section 754 Election.
"BUSINESS DAY" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York, New York.
"CALCULATION" has the meaning set forth in SECTION 3.3(a).
"CHANGE EVENT" has the meaning set forth in SECTION 3.5.
"CHANGE EVENT P&I" has the meaning set forth in SECTION 3.5.
"CHANGE IN CONTROL" has the meaning set forth in SECTION 3.1(g).
"CHANGE NOTICE" has the meaning set forth in SECTION 3.6.
"CODE" means the United States Internal Revenue Code of 1986, as amended,
including effective and transition rules (whether codified or not), and any
reference herein to a
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specified provision of the Code shall be deemed to include a reference to any
successor provision thereof.
"CONTINENTAL" has the meaning set forth in the Recitals.
"CONTROL" means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, partnership interests or
other ownership interests, by contract or otherwise.
"CORPORATION" has the meaning set forth in the Recitals.
"DELTA" has the meaning set forth in the Recitals.
"ESTIMATED TAX INSTALLMENT DATE" means the installment due dates
prescribed in Section 6655(c) of the Code or any similar provision of the
laws of any other jurisdiction in which a member of the Orbitz Group is
subject to Income Tax.
"EXCESS AMOUNT" has the meaning set forth in SECTION 3.1(d).
"EXCHANGE" has the meaning set forth in the Recitals.
"EXCHANGE ACT" has the meaning set forth in SECTION 3.1(g).
"EXCHANGE AGREEMENT" has the meaning set forth in the Recitals.
"EXCHANGE DATE" means the date on which the Exchange is consummated
pursuant to the Exchange Agreement.
"EXCHANGE PORTION" has the meaning set forth in SECTION 3.5.
"EXCHANGE TAX MATTERS" has the meaning set forth in SECTION 5.3(d).
"FINAL BANKRUPTCY ORDER" means a final non-appealable order or judgment
entered by a bankruptcy court or by any other court exercising jurisdiction
over the subject matter of a Bankruptcy Event.
"FINAL DETERMINATION" means the final resolution of any Tax (or Tax
Item) for a particular taxable period, including related interest or
penalties, that, under applicable law, is not subject to further appeal,
review or modification through proceedings or otherwise, including (a) by the
expiration of a statute of limitations or a period for the filing of claims
for Refund, amending Tax Returns, appealing from adverse determinations, or
recovering any Refund (including by offset), (b) by a decision, judgment,
decree, or other order by a court of competent jurisdiction, which has become
final and unappealable, (c) by a closing agreement or an accepted offer in
compromise under Sections 7121 or 7122 of the Code, or comparable agreements
under laws of other jurisdictions, (d) by execution of an Internal Revenue
Service Form 870AD, or by a comparable form under the laws of other
jurisdictions (excluding, however, with respect to a particular Tax Item for
a particular taxable period any such form that reserves (whether by its terms
or by operation of law) the right of the taxpayer to file a claim for Refund
and/or the right
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of the Tax Authority to assert a further deficiency with respect to such Tax
Item for such period), (e) the issuance of a private letter ruling from the
Internal Revenue Service, (f) the execution of a pre-filing agreement pursuant
to Rev. Proc. 2001-22, or (g) by any allowance of a Refund or credit, but only
after the expiration of all periods during which such Refund may be adjusted.
"INCOME TAX" means any Tax based upon, measured by, or calculated with
respect to (a) net income or profits (including any capital gains Tax, minimum
Tax and any Tax on items of Tax preference, but not including sales, use, real
or personal property, gross or net receipts, transfer or similar Taxes) or (b)
multiple bases if one or more of the bases upon which such Tax may be based,
measured by, or calculated with respect to, is described in clause (a) above.
"INDEMNIFICATION LIMIT" has the meaning set forth in SECTION 4.1.
"IRS GUIDANCE RIGHTS" has the meaning set forth in SECTION 5.5.
"LLC AGREEMENT" means that Sixth Amended and Restated Limited Liability
Company Agreement of Orbitz, LLC dated as of April 10, 2002, by and among
American, Delta, the Corporation, Continental, Northwest, and UAL Loyalty
Services, Inc., as amended.
"LOSSES" means any and all claims, demands, liabilities, obligations,
losses, Taxes, fines, costs, expenses, deficiencies or damages, whether or not
resulting from third party claims, including interest, additions and penalties
with respect thereto and out-of-pocket expenses and reasonable attorneys' and
accountants' fees and expenses incurred in the investigation, defense or
settlement of any of the same or in asserting, preserving or enforcing any
rights under this Agreement, but excluding any punitive damages.
"NET INTEREST" means interest actually earned on the escrowed funds
described in Section 3.6 less eighty-seven percent (87%) of the reasonable
out-of-pocket fees or expenses incurred by the Corporation with respect to the
escrow account.
"NON-VOTING CONVERTIBLE PREFERRED STOCK" has the meaning set forth in the
Recitals.
"NORTHWEST" has the meaning set forth in the Recitals.
"OPERATING COMPANY" has the meaning set forth in the Recitals.
"ORBITZ INDEMNIFIED PARTIES" has the meaning set forth in SECTION 4.1.
"ORBITZ GROUP" means the affiliated group of corporations as defined in
Section 1504(a) of the Code, or similar group of entities as defined under
corresponding provisions of the laws of any Tax Authority, of which the
Corporation is the common parent, and any corporation or other entity which
would be a member of such group for the relevant taxable period or portion
thereof.
"ORBITZ, LLC TAX RETURNS" has the meaning set forth in SECTION 2.1(c).
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"PERSON" means and includes any individual, partnership, joint venture,
limited liability company, corporation, association, joint stock company, trust,
unincorporated organization or similar entity or a governmental authority or any
department or agency or other unit thereof.
"POTENTIAL REDUCTION" has the meaning set forth in SECTION 3.6.
"PREFERRED STOCK PURCHASE AGREEMENT" has the meaning set forth in the
Recitals.
"PRE-IPO TAX PERIOD" has the meaning set forth in SECTION 2.1(c).
"PROCEEDING" means any assessment, audit, or other examination by any Tax
Authority, relating to Taxes (including Refunds), whether administrative or
judicial, and any appeal of the foregoing.
"PRO RATA P&I" has the meaning set forth in SECTION 3.5.
"PRO RATA PORTION" means, for each Airline, a ratio equal to (a) the
aggregate number of shares of the Corporation's common stock held by such
Airline immediately following the Exchange, divided by (b) the aggregate number
of shares of the Corporation's common stock held by all Airlines immediately
following the Exchange, as set forth on Schedule 1 hereto.
"REALIZED TAX BENEFITS" has the meaning set forth in SECTION 3.2(a).
"REFUND" means any refund of Taxes, including any reduction in Tax
liabilities by means of a credit, offset or otherwise.
"REPRESENTATIVES" means with respect to any Person, any of such Person's
directors, officers, employees, agents, consultants, advisors, accountants,
attorneys and other representatives.
"REVIEW PERIOD" has the meaning set forth in SECTION 3.3(a).
"SECTION 754 ELECTION" shall mean an election made by the Operating Company
pursuant to SECTION 754 of the Code with respect to the portion of its assets
represented by the Airline LLC Units transferred to the Corporation in the
Exchange.
"SETTLEMENT ACCOUNTANT" has the meaning set forth in SECTION 3.3(a).
"SHORTFALL AMOUNT" has the meaning set forth in SECTION 3.1(c).
"STATEMENT OF OBJECTIONS" has the meaning set forth in SECTION 3.3(a).
"STEPPED-UP ASSET" has the meaning set forth in SECTION 2.1(b).
"TAX" means any charges, fees, levies, imposts, duties, or other
assessments of a similar nature, including income, alternative or add-on
minimum, gross receipts, profits, lease, service, service use, wage, wage
withholding, employment, workers compensation, business
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occupation, occupation, premiums, environmental, estimated, excise, employment,
sales, use, transfer, license, payroll, franchise, severance, stamp, occupation,
windfall profits, withholding, social security, unemployment, disability, ad
valorem, highway use, commercial rent, capital stock, paid up capital,
recording, registration, property, real property gains, value added, business
license, custom duties, or other tax or governmental fee of any kind whatsoever,
imposed or required to be withheld by any Tax Authority including any interest,
or penalties applicable or related thereto.
"TAX AUTHORITY" means a governmental authority (foreign or domestic) or any
subdivision, agency, commission or authority thereof or any quasi-governmental
or private body having jurisdiction over the assessment, determination,
collection or imposition of any Tax (including the Internal Revenue Service).
"TAX BENEFIT PAYMENT" has the meaning set forth in SECTION 3.1(a).
"TAX ITEM" means any item of income, gain, loss, deduction, credit or other
item reflected on a Tax Return or that may have the effect of increasing or
decreasing any Tax.
"TAX RETURN" means any return, report, certificate, form or similar
statement or document (including, any related or supporting information or
schedule attached thereto and any information return, amended Tax Return,
claim for Refund or declaration of estimated tax) required to be supplied to,
or filed with, a Tax Authority in connection with the determination,
assessment or collection of any Tax or the administration of any laws,
regulations or administrative requirements relating to any Tax.
"TAX SHARING PERCENTAGE" means eighty-seven percent (87%).
"TERM" has the meaning set forth in SECTION 5.2.
"TREASURY REGULATIONS" means the final, temporary and proposed income
tax regulations promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
"UAL LOYALTY SERVICES" has the meaning set forth in the Recitals.
"UNITED" has the meaning set forth in SECTION 5.8.
ARTICLE 2
FILING AND PREPARATION OF TAX RETURNS
2.1 GENERAL.
a. Except as provided in SECTION 2.1(c) below, the Corporation shall
have the sole and exclusive responsibility for the preparation and filing of,
and shall prepare and file or cause to be prepared and filed, all Tax Returns of
the Corporation and its Affiliates, including, after the Exchange Date, the
Operating Company. In furtherance and not in limitation of the foregoing, the
Corporation shall make all decisions relating to any such Tax Return, including
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the right to determine: (i) the manner in which such Tax Return shall be
prepared and filed, including the elections, methods of accounting, positions,
conventions and principles of taxation to be used and the manner in which any
Tax Item shall be reported, (ii) whether any extensions may be requested, (iii)
the elections that will be made or revoked on such Tax Return, (iv) whether any
amended Tax Returns shall be filed, (v) whether any claims for Refund shall be
made, (vi) whether any Refunds shall be paid by way of refund or credited
against any liability for the related Tax, and (vii) whether to retain outside
firms to prepare or review such Tax Return, whom to retain for such purpose and
the scope of any such retention.
b. Notwithstanding the foregoing, at least fifteen (15) Business Days
prior to filing thereof, the Corporation shall provide the Airlines draft copies
of all Tax Returns of the Corporation and its Affiliates (including, for
example, the Operating Company) if such Tax Return is filed with respect to a
taxable period ending on or before the fourth anniversary of the Exchange Date
and such Tax Return involves the Tax treatment of the Exchange described in
SECTION 2.2, the basis of any tangible or intangible asset of the Operating
Company eligible for basis step-up pursuant to the Section 754 Election (each, a
"STEPPED-UP ASSET"), the eligibility of any such Stepped-Up Asset to be subject
to the allowance for depreciation or amortization, or the amount of any
deduction for depreciation or amortization relating to any such Stepped-Up
Assets. At its sole cost and expense, the Corporation shall respond to all
reasonable questions raised by the Airlines with respect to such Tax Returns
prior to the filing thereof. Except as otherwise required by a Final
Determination, the Corporation and its Affiliates (including, for example, the
Operating Company) shall file all Tax Returns for periods ending after the
fourth anniversary of the Exchange Date in a manner consistent with the prior
Tax Returns to the extent such Tax Returns relate to the Tax treatment of the
Exchange described in SECTION 2.2, the basis of the Stepped-Up Assets, the
eligibility of any such Stepped-Up Asset to be subject to the allowance for
depreciation or amortization, or the amount of any deduction for depreciation or
amortization relating to any such Stepped-Up Asset.
c. Notwithstanding anything to the contrary in this Agreement, the
Corporation expressly agrees with the Airlines that the provisions of SECTION
2.1(a) hereof shall not apply to the Tax Returns filed by the Operating Company
("ORBITZ, LLC TAX RETURNS") with respect to tax periods ending on or before the
Exchange Date (the "PRE-IPO TAX PERIOD"), and instead, the provisions of
SECTIONS 6.3, 6.4 and 6.5 of the LLC Agreement which currently governs the
preparation and filing of Tax Returns, shall apply to such Orbitz, LLC Tax
Returns. The Corporation also expressly agrees with the Airlines that the
provisions of SECTIONS 6.3, 6.4 and 6.5 of the LLC Agreement shall continue to
apply to the Pre-IPO Tax Period with respect to any Tax Contest (as defined in
SECTION 6.5 of the LLC Agreement) and such provisions of the LLC Agreement shall
remain in effect (i) until the applicable statute of limitations has run with
respect to each of the Orbitz, LLC Tax Returns for such Pre-IPO Tax Period, and
(ii) irrespective of the consummation of the Exchange, the initial underwritten
public offering of the capital stock of the Corporation and the amendment and
restatement of the Corporation's certificate of incorporation and its bylaws.
2.2 TAX TREATMENT OF THE EXCHANGE.
The Corporation and the Airlines shall treat the Exchange as a taxable
exchange of the Airline LLC Interests for the Corporation's stock for Tax
purposes, and pursuant to the
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Exchange Agreement, the Operating Company will timely file the Section 754
Election following the Exchange. The Exchange is not intended to qualify as a
non-taxable exchange pursuant to Section 351 of the Code. Absent a Final
Determination to the contrary or a change in applicable law, the Corporation and
the Airlines shall treat all Tax Benefit Payments (other than imputed or stated
interest thereon) made pursuant to ARTICLE 3 as adjustments to the purchase
price of the Airline LLC Interests pursuant to the Exchange. Not later than
sixty (60) days after the end of the taxable year of the Corporation that
includes the Exchange, the Corporation shall provide the Airlines a schedule
(and related supporting documentation) listing, as of the Exchange Date, the
basis allocable to each class of assets of the Operating Company, and the
period, if any, over which such class of assets is amortizable or depreciable
for Tax purposes. Absent a Final Determination to the contrary or a change in
applicable law, the Corporation and its Affiliates (including, for example, the
Operating Company) shall file all Tax Returns in a manner consistent with such
schedule.
ARTICLE 3
COMPENSATION FOR TAX BENEFITS
3.1 TAX BENEFIT PAYMENTS.
a. With respect to each taxable period (i) ending after the Exchange
Date and (ii) described in the Term of this Agreement as set forth in SECTION
5.2, the Corporation shall pay to each Airline, in the manner provided in this
Agreement, such Airline's Pro Rata Portion of (i) any Realized Tax Benefit for
such taxable period, multiplied by (ii) the Tax Sharing Percentage (such
payments, the "TAX BENEFIT PAYMENTS"). An Airline's right to receive Tax Benefit
Payments hereunder shall not be conditioned upon such Airline's continued
ownership of stock in the Corporation.
b. Within five (5) Business Days after an Estimated Tax Installment
Date, the Corporation shall pay in cash to each Airline, an amount equal to such
Airline's Tax Benefit Payment for the taxable period to which such Estimated Tax
Installment Date relates.
c. Within ten (10) Business Days following the filing of a Tax Return,
to the extent that the Tax Benefit Payments previously received by the Airlines
from the Corporation pursuant to SECTION 3.1(b) for the taxable period to which
such Tax Return relates are less than the aggregate amount such Tax Benefit
Payments should equal based on the Realized Tax Benefits reflected on such Tax
Return as filed by the Corporation (the "SHORTFALL AMOUNT"), then the
Corporation shall pay in cash to each Airline an additional amount equal to its
Pro Rata Portion of the Shortfall Amount, so that the aggregate Tax Benefit
Payments received by such Airline inclusive of this additional payment, will
equal the actual Tax Benefit Payments each such Airline should have received
hereunder based on the Realized Tax Benefit reflected on such Tax Return.
d. Within ten (10) Business Days following the filing of a Tax Return,
to the extent that the Tax Benefit Payments previously received by the Airlines
from the Corporation pursuant to SECTION 3.1(b) for the taxable period to which
such Tax Return relates are more than the amount such aggregate Tax Benefit
Payment should equal based on the Realized Tax Benefit
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reflected on such Tax Return as filed by the Corporation (the "EXCESS
AMOUNT"), then the Airlines shall each pay in cash to the Corporation an
amount equal to its Pro Rata Portion of the Excess Amount, so that the
aggregate Tax Benefit Payments received by such Airline, taking into account
the amount paid back to the Corporation, will equal the actual Tax Benefit
Payments each such Airline should have received hereunder based on the
Realized Tax Benefit reflected on such Tax Return.
e. All such payments made by the Corporation to the Airlines or
made by the Airlines to the Corporation shall be made by wire transfer of
immediately available funds to one or more bank accounts designated by the
recipient thereof.
f. If the payments described in SECTIONS 3.1(b), (c) or (d) above
are not timely made, such payments shall bear interest from and after the
last day of the applicable payment period pursuant to SECTION 3.1(b), (c) or
(d) at a per annum rate equal to the prime rate as quoted in the Money Rates
Section of THE WALL STREET JOURNAL on the due date of such payment.
g. The Corporation further covenants and agrees with each of the
Airlines that its contractual obligations to make the Tax Benefit Payments
pursuant to the terms and conditions of this Agreement shall continue
notwithstanding the fact that the Corporation: (i) consummates a merger,
consolidation, reorganization or other form of business combination however
effectuated, which results in a Change in Control (as defined below), or (ii)
transfers all or substantially all of its assets to any Person, and that in each
such case, the Corporation shall make proper provision so that the continuing or
surviving corporation or Person following such Change in Control, or the
successors and assigns of the Corporation, shall expressly assume the
obligations of the Corporation under this Agreement. For purposes of this
Agreement, "Change in Control" shall mean the acquisition by any Person or
"group" within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 (the "EXCHANGE ACT"), of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of
either (i) the then outstanding shares of common stock of the Corporation, or
(ii) the combined voting power of the then outstanding voting securities of the
Corporation entitled to vote generally for the election of directors of the
Corporation.
h. In the event that a Tax Authority imposes a charge for interest on
the Corporation with respect to any Estimated Tax Payment, and such interest
charge is not abated, the Corporation shall pay to the Airlines, in accordance
with their Pro-Rata Portions, interest on a deficiency in related Tax Benefit
Payment calculated in the same manner and at the same rate as the interest
imposed on the Estimated Tax Payment. Such payment to the Airlines shall be made
within ten (10) Business Days of payment to the relevant Tax Authority.
3.2 CALCULATION OF REALIZED TAX BENEFIT.
a. The "REALIZED TAX BENEFIT" for any taxable period is the excess, if
any, of the Income Tax liability of the Orbitz Group without the Basis Step-up
over the Income Tax liability of the Orbitz Group with the Basis Step-up (each
calculated as set forth below), less the reasonable out-of-pocket expenses of
the Corporation for such period incurred in calculating such amount.
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b. The Income Tax liability of the Orbitz Group with the Basis Step-up
shall be the pro-forma liability for Income Taxes of the Orbitz Group as shown
on the relevant Tax Return (recomputed, if necessary, as if the Orbitz Group
makes all available elections to cause any losses to be carried forward to
future periods rather than carried back to prior years). The Income Tax
liability of the Orbitz Group without the Basis Step-up shall be calculated (i)
using the same methods and elections used on the relevant Tax Return as filed,
(ii) assuming that the Exchange had been effected as a non-taxable exchange
pursuant to Section 351 of the Code, and the Section 754 Election was not made
by the Operating Company and (iii) assuming that all available elections are
made to cause any losses to be carried forward to future periods rather than
carried back to prior years (except for adjustments made pursuant to SECTION
3.5).
c. It is the intent of the parties that no Tax Item shall result in
duplicate Tax Benefit Payments under this Agreement, and accordingly, once a Tax
Item has been reflected in the calculation of Realized Tax Benefit, the
subsequent calculations of that amount shall be performed in a manner so as to
avoid any duplication of benefit or detriment for the same Tax Item.
3.3 REVIEW OF CALCULATIONS.
a. For each taxable period of the Corporation following the Exchange,
the Corporation shall provide to the Airlines for review the calculation (a
"CALCULATION") of the Tax Benefit Payments, Excess Amounts or Shortfall Amounts,
if any, within (i) thirty (30) days after each Estimated Tax Installment Date,
and (ii) sixty (60) days following the filing of a Tax Return. No later than
sixty (60) days following the filing thereof, the Corporation shall also provide
each of the Airlines a copy of each Tax Return filed which is referenced in the
first sentence of this SECTION 3.3(a). Upon receipt of each such Calculation,
the Airlines shall have thirty (30) days (the "REVIEW PERIOD") to review such
Calculation. In connection with the review of each such Calculation, the
Corporation shall give, and shall cause its Affiliates and Representatives to
give, to the Airlines and their Representatives reasonable access at reasonable
times to the materials relating to the preparation of the Calculation, including
the work papers prepared by or for the Corporation, to permit the timely review
of each such Calculation. If Airlines representing a majority of the total Pro
Rata Portions have accepted each such Calculation in writing or have not given
written notice to the Corporation setting forth in reasonable detail any
objection to each such Calculation (a "STATEMENT OF OBJECTIONS") prior to the
expiration of the Review Period, then such Calculation shall be final and
binding upon the parties. If Airlines representing a majority of the total Pro
Rata Portions deliver a Statement of Objections during the Review Period, the
Corporation and the Airlines shall use their reasonable efforts to agree on each
such Calculation within thirty (30) days following the receipt by the
Corporation of the Statement of Objections. If the parties are unable to reach
an agreement as to such amount within such period, then the matter shall be
submitted to a nationally recognized independent accounting firm, which shall be
mutually agreeable to the Corporation and Airlines representing a majority of
the total Pro Rata Portions (such accountant, the "SETTLEMENT ACCOUNTANT"), who,
acting as an expert and not as an arbitrator, shall resolve the matters in
dispute and adjust each such Calculation to reflect such resolution. The
Settlement Accountant shall make such determination within thirty (30) days (or
as soon as practicable thereafter if the Settlement Accountant notifies the
parties that it requires additional time to make such determination) following
the submission of the matter to the Settlement Accountant for
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resolution, and such determination shall be final and binding upon the
Corporation and the Airlines. The Corporation shall pay the fees, charges and
expenses of the Settlement Accountant; provided that the Airlines shall
reimburse the Corporation for eighty-seven percent (87%) of the reasonable
out-of-pocket fees, charges and expenses within ten (10) Business Days of
written request therefor in accordance with their Pro Rata Portions.
b. If an Excess Amount or Shortfall Amount changes as a result of a
change in the final Calculation thereof pursuant to the procedures described
in SECTION 3.3(a), the Corporation shall pay to each Airline, or each Airline
shall pay to the Corporation, as applicable, the amount of cash so that the
aggregate Tax Benefit Payments received by each such Airline, taking into
account the amount paid to or received from the Corporation, will equal the
actual Tax Benefit Payments each such Airline should have received hereunder
based on the Realized Tax Benefit reflected on the applicable Tax Return.
3.4 SEPARATE APPLICATION FOR EACH TAX JURISDICTION.
The payment obligations and calculations made pursuant to this
ARTICLE 3 shall be made separately for each jurisdiction in which the Orbitz
Group (or any member thereof) is subject to Income Tax, and in the case of a
taxing jurisdiction other than the United States, references in this ARTICLE
3 to provisions of the Code shall be to any analogous provisions of the laws
of such other jurisdiction.
3.5 SUBSEQUENT CHANGES IN TREATMENT OF TAX ITEMS.
In the event of a change in the treatment of any Tax Item of any
member of the Orbitz Group for any Tax period as a result of a Final
Determination, the filing of a claim for Refund, the filing of an amended Tax
Return for such period or the reflection of a change in treatment reflected in a
subsequently filed Tax Return (a "CHANGE EVENT"), the Tax Benefit Payments shall
be recalculated for such period under this ARTICLE 3. If a Change Event results
in the reduction or elimination of a Realized Tax Benefit for a period for which
Tax Benefits Payments were previously paid, each Airline shall pay to the
Corporation the amount of excess Tax Benefit Payments received. If a Change
Event results in the imposition of interest and penalties resulting from changes
to the Tax treatment of the Exchange as described in SECTION 2.2 (the "CHANGE
EVENT P&I"), each Airline shall pay to the Corporation its Pro Rata Portion of
eighty-seven percent (87%) of the Exchange Portion (as defined below) of such
Change Event P&I (such amount, the "PRO RATA P&I"). Payments arising as a result
of the application of this SECTION 3.5 shall be made in accordance with SECTION
3.1(e). For purposes of this Agreement, the "EXCHANGE PORTION" of the Change
Event P&I shall be equal to the portion thereof determined based on the ratio,
the numerator of which includes only the dollar amount of adjustments of the Tax
Items with respect to the Change Event related to the Tax treatment of the
Exchange, and the denominator of which includes the dollar amount of all the
adjustments of all Tax Items with respect to the Change Event (i.e., including
but not limited to the dollar amount of adjustments described in the numerator),
PROVIDED, FURTHER that in no event shall the Airlines bear any portion of any
specific penalties imposed with respect to Tax Items OTHER THAN those expressly
attributable to the Tax treatment of the Exchange.
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3.6 SUSPENSION OF TAX BENEFIT PAYMENTS FOLLOWING CHANGE NOTICE.
a. If any Airline or any member of the Orbitz Group receives a notice
of proposed adjustment, a final audit report, a statutory notice of deficiency
or similar written notice from any Tax Authority with respect to the Tax
treatment of the Exchange (collectively, a "CHANGE NOTICE"), which, if
sustained, would result in the Airlines being required to make a payment to the
Corporation under SECTION 3.5 with respect to Tax Benefit Payments received
prior to the receipt of the Change Notice or a reduction in future Tax Benefit
Payments required to be paid by the Corporation to the Airlines (collectively,
the "POTENTIAL REDUCTION"), prompt written notice of such Change Notice shall be
given to each of the parties hereto.
b. From and after the date such Change Notice is received until there
is a Final Determination with respect to the adjustments proposed therein, any
Tax Benefit Payments required to be made by the Corporation to the Airlines
pursuant to this ARTICLE 3 shall instead be paid by the Corporation (i) first,
to a national bank mutually agreeable to the Corporation and Airlines
representing a majority of the total Pro Rata Portions to act as escrow agent to
hold such funds in escrow pursuant to a mutually agreeable escrow agreement
governed by the laws of the state of New York until such Final Determination is
received with respect to the Change Notice, until the amount of Tax Benefit
Payments paid into escrow and held by the escrow agent equals the Potential
Reduction, and (ii) thereafter, to the Airlines in accordance with their Pro
Rata Portions.
c. If the Final Determination results in no adjustment to the Tax
Benefit Payments, then the escrowed funds (along with Net Interest earned
thereon) shall be distributed to the Airlines in accordance with their Pro
Rata Portions. If the Final Determination results in an adjustment to the Tax
Benefit Payments, the escrowed funds (along with interest earned thereon)
shall be distributed to the Airlines or to the Corporation, as the case may
be, in accordance with the recalculated Tax Benefit Payments determined under
SECTION 3.5 and the escrow agreement.
3.7 OBLIGATION TO PROVIDE SECURITY FOR FINANCIAL ACCOMMODATION.
a. Each Airline recognizes and agrees that the payment of Tax Benefit
Payments pursuant to this ARTICLE 3 for a taxable period prior to a Final
Determination with respect thereto constitutes a financial accommodation
extended by the Corporation to each Airline. Notwithstanding anything herein to
the contrary, in the event an Airline or any Person that directly or indirectly,
through one or more intermediaries, Controls such Airline, suffers a Bankruptcy
Event on or after the date hereof, the Corporation shall no longer be obligated
to make financial accommodations to such Airline unless such Airline provides
the Corporation a letter of credit or other security therefore reasonably
acceptable to the Corporation. For the avoidance of doubt, the term "financial
accommodations to such Airline hereunder" shall include payment of Tax Benefit
Payments to an Airline for any taxable period prior to a Final Determination
with respect thereto. The Corporation's obligations to make financial
accommodations hereunder without security shall resume upon entry of a Final
Bankruptcy Order confirming a plan of reorganization.
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b. For purposes of Section 3.7(a) hereof, the term "BANKRUPTCY EVENT"
shall mean, with respect to any Person, the occurrence or existence of any of
the following events or conditions: such Person (1) is dissolved; (2) becomes
insolvent or is unable or admits in writing its inability generally to pay its
debts as they become due; (3) makes a general assignment, arrangement or
composition with or for the benefit of its creditors; (4) institutes or has
instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors' rights, or a petition is presented for its
winding up or liquidation and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A) results in a
judgment of insolvency or bankruptcy or the entry of an order for relief or the
making of an order for its winding up or liquidation, or (B) is not dismissed,
discharged, stayed or restrained in each case within sixty (60) days of the
institution or presentation thereof; (5) has a resolution passed for its winding
up or liquidation; (6) seeks or becomes subject to the appointment of an
administrator, receiver, trustee, custodian or other similar official for it or
for all or substantially all its assets (regardless of how brief such
appointment may be, or whether any obligations are promptly assumed by another
entity or whether any other event described in this clause (6) has occurred and
is continuing); (7) experiences any event which, under the applicable laws of
any jurisdiction, has an analogous effect to any of the events specified in
clauses (1) through (6) above; or (8) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the foregoing
acts.
ARTICLE 4
INDEMNIFICATION
4.1 INDEMNIFICATION BY THE AIRLINES.
a. Each Airline agrees, severally and not jointly, to defend,
indemnify and hold harmless the Corporation and its Affiliates (affiliation to
be measured after the Exchange), and each of their Representatives, successors
and assigns (collectively, the "ORBITZ INDEMNIFIED PARTIES"), from and against,
and pay or reimburse the Orbitz Indemnified Parties for, only those Losses
arising out of or related to (i) any breach by that same Airline of any covenant
or agreement set forth in this Agreement or (ii) any default by such Airline in
the payment when due of any amounts owed under this Agreement. Notwithstanding
the foregoing, (i) each Airline's indemnification obligation under this SECTION
4.1 or otherwise under this Agreement shall be limited to the sum of (A) one
hundred percent (100%) of the aggregate Tax Benefit Payments received by such
Airline pursuant to this Agreement (as adjusted for payments made pursuant to
SECTIONS 3.1(c) and (d) and SECTION 3.3(b)), PLUS (B) in the event that such
Airline has had to repay any of its Tax Benefit Payments pursuant to SECTION
3.5, such Airline's Pro Rata P&I, if any (such sum, the "INDEMNIFICATION LIMIT")
and (ii) the Airlines shall have no indemnity obligation to any Representatives
of the Corporation in connection with such Representatives' tax advice with
respect to the Exchange. For the avoidance of doubt, the parties expressly agree
that each Airline shall never have any indemnification obligation to the Orbitz
Indemnified Parties for any reason under this SECTION 4.1 or otherwise under
this Agreement in an amount in excess of such Airline's Indemnification Limit,
regardless of whether one or more of the other Airlines satisfies its separate
indemnification obligations under this SECTION 4.1, breaches or defaults under
its obligations under this Agreement or suffers a Bankruptcy Event.
13
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4.2 INDEMNIFICATION BY THE CORPORATION. The Corporation covenants and
agrees to defend, indemnify and hold harmless each Airline and its Affiliates
(affiliation to be measured after the Exchange), and each of their
Representatives, successors and assigns (collectively, the "AIRLINE
INDEMNIFIED PARTIES"), from and against, and pay or reimburse the Airline
Indemnified Parties for, all Losses arising out of or related to (a) any
breach by the Corporation of any covenant or agreement set forth in this
Agreement or (b) the failure of the Corporation to make any payment when due
of any amounts owed under this Agreement.
4.3 PAYMENT PROCEDURES. The parties shall satisfy their indemnity
obligations pursuant to this ARTICLE 4 within ten (10) Business Days after
receipt of a written demand for payment, which shall set forth in detail the
circumstances and amount of the indemnity payment. Payments that are not made
within such period shall bear interest through and including the date of payment
at a per annum rate equal to the prime rate as quoted in the Money Rates Section
of THE WALL STREET JOURNAL on the date demand for payment is made hereunder.
ARTICLE 5
MISCELLANEOUS
5.1 EFFECTIVENESS.
This Agreement shall be effective upon the Exchange Date.
5.2 TERM.
The term of this Agreement begins on the Exchange Date and shall
continue in effect until ninety (90) days following the expiration of the
applicable statute of limitations (including waivers and extensions) with
respect to any Tax periods for which Tax Benefit Payments are made hereunder
(the "TERM").
5.3 TAX PROCEEDINGS.
a. Subject to the Airlines' exercise of their Airline Contest Rights
(as defined below) as to any Applicable Proceedings (as defined below), the
Corporation shall have the exclusive right, in its sole discretion, and at its
sole cost and expense, to control, contest, and represent the interests of the
Corporation and any of its Affiliates and to resolve, settle or agree to any
deficiency, claim or adjustment proposed, asserted or assessed in connection
with or as a result of any Proceeding (or portion thereof) relating to: (i) the
Tax treatment of the Exchange; (ii) the basis of any Stepped-Up Asset; (iii) the
eligibility of any such Stepped-Up Asset to be subject to the allowance for
depreciation or amortization; or (iv) the amount of any deduction for
depreciation or amortization relating to any such Stepped-Up Asset (the
"APPLICABLE PROCEEDINGS"). Subject to the Airlines' exercise of their Airline
Contest Rights (as defined below), the Corporation's rights shall extend to any
matter pertaining to the management and control of any Proceeding, including
execution of waivers, choice of forum and scheduling of conferences. The
Corporation shall promptly provide the Airlines written notice of all Applicable
Proceedings.
14
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b. The Corporation covenants and agrees that the Airlines shall at any
time have the right, which shall be exercisable by Airlines representing a
majority of the total Pro Rata Portions, to participate together with the
Corporation in contesting and defending any and all the Applicable Proceedings
(the "AIRLINE CONTEST RIGHTS"). Such Airline Contest Rights shall be exercised
through Representatives selected by such Airlines representing a majority of the
total Pro Rata Portions to represent the Airlines as a group in such Applicable
Proceedings, and such Airlines' Representatives shall work together with the
Corporation and its Representatives and shall be provided by the Corporation and
its Representatives with all the relevant information, documents and materials
as well as timely access to the Corporation's Representatives working on such
Applicable Proceedings. If the Airlines decide to exercise their Airline Contest
Rights, the Corporation covenants and agrees that, in any Applicable Proceeding,
it shall not finalize a settlement, conduct settlement negotiations with Tax
Authorities, make any written submissions to Tax Authorities or agree to extend
or waive the statute of limitations without first obtaining the written consent
of the Airlines representing a majority of the total Pro Rata Portions. The
Airlines agree that to the extent they exercise their Airline Contest Rights,
they shall do so at their own cost and expense, to be shared by them in
accordance with their Pro Rata Portions.
c. Each Airline shall, and shall cause its Affiliates and
Representatives to, cooperate with the Corporation in contesting or defending
any Applicable Proceeding, including by furnishing to the Corporation in a
timely manner such information, documents or other materials as the Corporation
may reasonably request. In all events, the Corporation shall in good faith keep
each Airline informed with respect to the status of such Applicable Proceeding
and, upon the reasonable request of an Airline, shall consult with such Airline
from time to time regarding the conduct of such Applicable Proceeding.
d. Irrespective of whether the Airlines exercise their Airline Contest
Rights, the Corporation covenants and agrees with the Airlines that with respect
to any and all Applicable Proceedings, the Corporation shall use its reasonable
best efforts to accelerate the resolution of each of the Tax issues set forth in
clauses (i) through (iv) of Section 5.3(a) hereof (the "EXCHANGE TAX MATTERS"),
so as to achieve a Final Determination of such Exchange Tax Matters as quickly
as possible irrespective of the other Tax Items involved in such Applicable
Proceedings. Such efforts shall include, without limitation, the Accelerated
Issue Resolution procedures described in Rev. Proc. 94-67. In all events, the
Corporation shall in good faith keep each Airline informed with respect to the
status of such efforts, and upon the reasonable request of an Airline, the
Corporation shall consult with such Airline regarding its efforts under this
SECTION 5.3(d).
5.4 COOPERATION; FURTHER ASSURANCES.
Each party shall cooperate and use commercially reasonable efforts
to take, or cause to be taken, all actions necessary or advisable to carry
out the intent of this Agreement. Each party will execute and deliver such
certificates and other documents and take such other actions as may
reasonably be requested by the other party to carry out the purposes and
terms of this Agreement.
15
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5.5 RIGHT TO SEEK IRS GUIDANCE.
The Corporation covenants and agrees with the Airlines that at any
time prior to the first anniversary of the Exchange Date, the Airlines shall
have the right, which shall be exercisable upon the unanimous request of the
Airlines, to cause the Corporation to seek one or more of the following types of
guidance from the Internal Revenue Service (the "IRS GUIDANCE RIGHTS") with
respect to the Tax treatment of the Exchange: (i) a pre-filing agreement (within
the meaning of Rev. Proc. 2001-22); (ii) a private letter ruling; (iii) a
closing agreement under Section 7121 or 7122 of the Code, other than a
pre-filing agreement described in clause (i) above; or (iv) or any other
available form of written determination from the Internal Revenue Service. If
exercised by the unanimous request of the Airlines, such IRS Guidance Rights
shall be exercised through one or more Representatives of the Airlines selected
by such Airlines representing a majority of the Pro Rata Portions to represent
the Airlines as a group in working with the Corporation and its Representatives
as the Corporation seeks the guidance sought by the Airlines. The Corporation
acknowledges and agrees with the Airlines that once such IRS Guidance Rights are
exercised, the Airlines shall make all the decisions relating to: (i) the type
of IRS guidance sought; (ii) the preparation of the written request for such
guidance to be filed with the Internal Revenue Service; (iii) the selection of
counsel, accountants or other Representatives to assist the Corporation and the
Airlines in seeking such guidance, provided that the Corporation consents to
such selection (such consent not to be unreasonably withheld); (iv) the
provisions of the written advice or guidance and, if applicable, the binding
documentation required to be executed by the Corporation in order to secure such
advice and guidance; and (v) the negotiations and resolution of whether Airlines
and the Corporation should accept or reject such written advice or guidance.
Notwithstanding the foregoing, the Corporation shall not be required to take any
action that, upon the advice of counsel, would result in a violation of law or
incur penalties from any taxing or governmental authority. The Corporation shall
execute such documents including, without limitation, Form 2848 powers of
attorney as are necessary and appropriate in order to effectuate the Airlines'
exercise of their IRS Guidance Rights through the Airlines' Representatives. The
Corporation shall pay the fees, expenses, accounting firm and attorneys fees in
connection with the Airlines' exercise of the IRS Guidance Rights, provided that
the Airlines shall reimburse the Corporation for eighty-seven percent (87%) of
such fees and expenses within ten (10) Business Days of written request
therefore in accordance with their Pro Rata Portions. For the avoidance of
doubt, the Corporation expressly agrees with the Airlines that whether or not
the Airlines exercise their IRS Guidance Rights and if the Airlines exercise
such IRS Guidance Rights, whether or not such IRS guidance is favorable or
unfavorable, shall not in any way impact the Airlines rights to receive Tax
Benefit Payments under this Agreement.
5.6 AMENDMENTS.
This Agreement may be amended, modified or supplemented only by
written agreement of the Corporation and the Airlines representing a majority of
the total Pro Rata Portions.
5.7 NOTICES.
Any notice, request, consent or communication under this Agreement
shall be effective only if it is in writing and (a) personally delivered, (b)
sent by certified or registered
16
<Page>
mail, return receipt requested, postage prepaid, (c) sent by a nationally
recognized overnight delivery service, with delivery confirmed, or (d) telexed
or telecopied, with receipt confirmed, addressed as follows:
a. if to the Corporation, to its principal place of business;
b. if to any Airline, to such address as set forth below its name on
the signature page to this Agreement;
or such other persons or addresses as shall be furnished in writing by any
Airline to the Corporation and the other Airlines. A notice shall be deemed to
have been given as of the date received by the intended recipient. All notices
shall specifically state: (i) the provision (or provisions) of this Agreement
with respect to which such notice is given, and (ii) the relevant time period,
if any, in which the party given such notice must respond.
5.8 SUCCESSORS AND ASSIGNS.
This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns. Except for the indemnification provisions of ARTICLE 4 in
favor of Persons who are not parties to this Agreement, nothing in this
Agreement, express or implied, is intended to confer upon any Person other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by (a) the
Corporation, without the prior written consent of the Airlines holding a
majority of the total Pro Rata Portions or (b) any Airline, without the prior
written consent of the Corporation and the other Airlines holding a majority of
the total Pro Rata Portions (excluding for such purposes the Pro Rata Portion
held by the assigning Airline); PROVIDED, HOWEVER, that it is acknowledged and
agreed that, prior to the Closing Date, UAL Loyalty Services may transfer by
dividend the Airline LLC Units owned by it to UAL Corp., a Delaware corporation,
which shall transfer, by a contribution to capital, such Airline LLC Units to
United Air Lines, Inc., a Delaware corporation ("UNITED"). Effective upon
completion of such transfers, United shall execute and deliver a joinder to this
Agreement in a form mutually agreed upon by United, the Corporation, Northwest,
Delta, Continental and American, pursuant to which United shall assume all of
rights and obligations of UAL Loyalty Services under, and agree to be bound in
all respects by, this Agreement as if United were an original signatory hereto.
Upon execution and delivery of such joinder, all references herein to,
representations or warranties of, or obligations to be performed by UAL Loyalty
Services shall be deemed to be references to, representations and warranties of
and obligations to be performed by United, and United shall be one of the
Airlines hereunder. Any purported assignment in contravention of this provision
shall be void ab initio.
5.9 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall constitute one
instrument.
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5.10 ENTIRETY OF AGREEMENT.
This Agreement and the Exchange Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter hereof,
and supersedes all other agreements among the parties, or any of them, express
or implied, written or oral, with respect to the subject matter hereof.
5.11 APPLICABLE LAW; JURISDICTION.
This Agreement and the rights and obligations of the parties hereto
shall be interpreted and enforced in accordance with and governed by the laws of
the State of Delaware applicable to agreements made and to be performed wholly
within that jurisdiction. In addition, each of the parties hereto (a)
irrevocably consents to submit itself to the exclusive jurisdiction of any
Federal court located in the District of Delaware or any state court located in
the State of Delaware in the event any dispute arises out of this Agreement, (b)
agrees that it will not bring any action relating to this Agreement in any court
other than any Federal court sitting in the District of Delaware or any state
court sitting in the State of Delaware and (c) agrees that it will not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court or to assert any rights it may have to transfer or
change the venue of any action relating to this Agreement brought in accordance
with this SECTION 5.11.
5.12 INTERPRETATION.
The Section headings contained in this Agreement are solely for the
purpose of reference, are not part of the agreement of the parties and shall not
in any way affect the meaning or interpretation of this Agreement. Whenever any
words are used herein in the masculine gender, they shall be construed as though
they were also used in the feminine gender in all cases where they would so
apply. As used herein, the term "including" shall mean "including, without
limitation." The parties being of equal sophistication, the interpretation of
this Agreement shall not be influenced by virtue of the authorship of any of the
provisions of this Agreement.
5.13 SEVERABILITY.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
5.14 CONFIDENTIALITY.
Each party shall hold and cause its Representatives to hold in strict
confidence, unless compelled to disclose by judicial or administrative process
or, in the opinion of its counsel, by other requirements of law, all information
(other than any such information relating
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solely to the business or affairs of such party) concerning the other parties
hereto furnished it by such other party or its Representatives pursuant to this
Agreement (except to the extent that such information can be shown to have been
(a) previously known by the party to which it was furnished, (b) in the public
domain through no fault of such party, or (c) later lawfully acquired from other
sources by the party to which it was furnished), and each party shall not
release or disclose such information to any other Person, except its
Representatives who shall be advised of the provisions of this Section. Each
party shall be deemed to have satisfied its obligation to hold confidential
information concerning or supplied by the other party if it exercises the same
care as it takes to preserve confidentiality for its own similar information.
Notwithstanding anything to the contrary set forth herein or in any other
written or oral understanding or agreement to which the parties hereto are
parties or by which they are bound, the parties acknowledge and agree that (i)
any obligations of confidentiality contained herein and therein do not apply and
have not applied from the commencement of discussions between the parties to the
tax treatment and tax structure of the Exchange (and any related transactions or
arrangements), and (ii) each party (and each of its Representatives) may
disclose to any and all Persons, without limitation of any kind, the tax
treatment and tax structure of the Exchange and all materials of any kind
(including opinions or other tax analyses) that are provided to such party
relating to such tax treatment and tax structure, all within the meaning of
Treasury Regulations Section 1.6011-4; PROVIDED, HOWEVER, that the foregoing is
not intended to affect each party's privilege to maintain, in its sole
discretion, the confidentiality of communications with its attorneys or with a
federally authorized tax practitioner under Section 7525 of the Code.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by a duly authorized officer as of the date first above written.
AMERICAN AIRLINES, INC.
By: /s/ Beverly Goulet
-----------------------------------
Name: Beverly Goulet
Title: Vice President - Corporate
Development and Treasurer
Address: American Airlines, Inc.
4333 Amon Carter Boulevard
Mail Drop 5566
Fort Worth, Texas 76155
Attention: Vice President - Corporate
Development and Treasurer
Facsimile: (817) 967-2199
Telephone: (817) 967-0383
With a copy to:
American Airlines, Inc.
4333 Amon Center Boulevard
Mail Drop 5675
Fort Worth, TX 76155
Attention: Corporate Secretary
Facsimile: (817) 967-4313
Telephone: (817) 967-1254
[SIGNATURE PAGE TO TAX AGREEMENT]
<Page>
CONTINENTAL AIRLINES, INC.
By: /s/ Jeffery A. Smisek
------------------------------------
Name: Jeffery A. Smisek
Title: Executive Vice President
Address: Continental Airlines, Inc.
1600 Smith Street, HQSEO
Houston, TX 77002
Attention: Executive Vice President
Facsimile: 713-324-2715
With a copy to:
Continental Airlines, Inc.
1600 Smith Street, HQSLG
Houston, TX 77002
Attention: General Counsel
[SIGNATURE PAGE TO TAX AGREEMENT]
<Page>
OMICRON RESERVATIONS MANAGEMENT, INC.
By: /s/ Vincent F. Caminiti
----------------------------------
Name: Vincent F. Caminiti
Title: President
Address: Omicron Reservations Management,
Inc.
1030 Delta Boulevard
Atlanta, GA 30320
Attention: President
Facsimile: 404-715-4098
With a copy to:
Delta Air Lines, Inc.
1030 Delta Boulevard
Atlanta, GA 30320
Attention: SVP-General Counsel
Facsimile: 404-715-2233
[SIGNATURE PAGE TO TAX AGREEMENT]
<Page>
NORTHWEST AIRLINES, INC.
By: /s/ J. Timothy Griffin
-------------------------------------
Name: J. Timothy Griffin
Title: EVP Marketing and Distribution
Address: Northwest Airlines, Inc.
2700 Lone Oak Parkway
Eagan, MN 55121
Attention: Al Lenza, Vice President-
Distribution Planning
Facsimile: 612-726-3906
With a copy to:
Northwest Airlines, Inc.
2700 Lone Oak Parkway
Eagan, MN 55121
Attention: General Counsel
Facsimile: 612-726-7123
[SIGNATURE PAGE TO TAX AGREEMENT]
<Page>
UAL LOYALTY SERVICES, INC.
By: /s/ Steven M. Rasher
-----------------------------------
Name: Steven M. Rasher
Title: Vice President and General
Counsel
Address: UAL Loyalty Services, Inc.
c/o United Air Lines, Inc.
World Headquarters
P.O. Box 66100
Chicago, IL 60666
Attention: Senior Vice-President,
Secretary and
General Counsel
Facsimile: 847-700-9569
and
Attention: Managing Director,
UAL Loyalty Services, Inc.
Facsimile: 847-700-9569
[SIGNATURE PAGE TO TAX AGREEMENT]
<Page>
ORBITZ, INC.
By: /s/ John J. Park
------------------------------------
Name: John J. Park
Title: Chief Financial Officer
Address: Orbitz, Inc.
200 S. Wacker Drive, S-1900
Chicago, IL 60606
Attention: Chief Financial Officer and
General Counsel
[SIGNATURE PAGE TO TAX AGREEMENT]
<Page>
SCHEDULE 1
PRO-RATA PORTIONS
<Table>
<Caption>
-------------------------------------------------------- ------------------
PRO RATA
AIRLINE PORTIONS
-------------------------------------------------------- ------------------
<S> <C>
26.17%
American Airlines, Inc.
-------------------------------------------------------- ------------------
Continental Airlines, Inc. 13.79
-------------------------------------------------------- ------------------
Omicron Reservations Management, Inc. 18.30
-------------------------------------------------------- ------------------
Northwest Airlines, Inc. 15.57
-------------------------------------------------------- ------------------
UAL Loyalty Services, Inc. 26.17
-------------------------------------------------------- ------------------
TOTAL: 100.0%
-------------------------------------------------------- ------------------
</Table>