Assignment and Assumption Agreement - Pegasus Solutions Inc. and Hotel Distribution System LLC
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("ASSIGNMENT") is entered
into effective as of the 8th day of February, 2002, but and between Pegasus
Solutions, Inc., a Delaware corporation ("ASSIGNOR") and Hotel Distribution
System, LLC, a Delaware limited liability company ("ASSIGNEE").
WHEREAS, Assignor and Orbitz, LLC, a Delware limited liability company
("ORBITZ"), have entered into that certain Agreement, dated as of January 7,
2002 (the "ORBITZ AGREEMENT"); and
WHEREAS, Assignor has entered into Preferred Distribution Agreements,
each dated as of January 7, 2002, with each of Hilton Hotels Corporation, Hyatt
Corporation, Marriott International, Inc., Six Continents Hotels, Inc. Starwood
Hotels and Resorts Worldwide, Inc., and Utell International (each, a "PREFERRED
DISTRIBUTION AGREEMENTS"); and
WHEREAS, subject to certain other conditions, including notice to
Orbitz, which notice was given to Orbitz by the Assignor on the date hereof,
Section 16.4(b) of the Orbitz Agreement permits the assignment of the Orbitz
Agreement from Assignor to any joint venture or similarly entity formed by at
least three (3) of the following: Hilton Hotels Corporation, Hyatt Corporation,
Marriott International, Inc., Six Continents Hotels, Inc. and Starwood Hotels
and Resorts Worldwide, Inc. (together, the "PARTICIPANTS"); and
WHEREAS, subject to certain other conditions, Section 15.4(b) of each
Preferred Distribution Agreement requires the assignment of such Preferred
Distribution Agreement and the Orbitz Agreement from Assignor to any joint
venture or similar entity formed by at least three (3) of the Participants; and
WHEREAS, Hilton Electronic Distribution Systems, LLC, an Affiliate of
Hilton Hotels Corporation, HT-HDS, Inc., an Affiliate of Hyatt Corporation, MI
Distribution, LLC, an Affiliate of Marriott International, Inc., Six Continents
Hotels, Inc. Starwood Reseventure Corp., an Affiliate of Starwood Hotels &
resorts Worldwide, Inc., and Assignor have entered into that certain Limited
Liability Company Operating Agreement of the Assignee, dated as of February 8,
2002.
NOW, THEREFORE, in accordance with Section 16.4(b) of the Orbitz
Agreement and Section 15.4(b) of each Preferred Distribution Agreement, and for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ASSIGNMENT
1. Assignor hereby does transfer and assign unto Assignee all of Assignor's
rights, obligations, interests and liabilities under the Orbitz Agreement
and each Preferred Distribution Agreement.
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2. For and in consideration of the assignment hereunder, Assignee hereby
assumes all of Assignor's rights, obligations, interests and liabilities
under the Orbitz Agreement and each Preferred Distribution Agreement to the
same extent as though it had originally been named as a party thereto and
agrees to observe, perform and fulfill all the terms and conditions of the
Orbitz Agreement and each Preferred Distribution Agreement to the same
extent as if it had been originally named as a party thereto.
3. Assignee agrees to defend, indemnify and hold harmless Assignor and its
affiliates, officers, directors, shareholders, employees, partners, agents
and representatives from and against all claims, demands, obligations,
losses, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorneys' fees, costs and expenses
arising out of, resulting from or related in any way whatsoever to the
obligations under the Orbitz Agreement and each Preferred Distribution
Agreement assumed by Assignee herein, other than those obligations arising
prior to the date hereof resulting from Assignor's gross negligence or
willful misconduct. Assignor agrees to defend, indemnify and hold harmless
Assignee and its affiliates, officers, directors, shareholders, employees,
partners, agents and representatives from and against all claims, demands,
obligations, losses, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorneys' fees, costs and
expenses arising out of, resulting from or related in any way whatsoever to
the obligations under the Orbitz Agreement and each Preferred Distribution
Agreement assumed by Assignee herein resulting from Assignor's gross
negligence or willful misconduct which arose or accrued prior to and relate
to the period prior to the date hereof.
4. This Assignment shall be binding upon, and inure to the benefit of,
Assignor and Assignee, and their respective successors and assigns.
5. This Assignment shall be governed by and construed in accordance with the
laws of the State of Illinois without giving effect to conflicts of law
principles.
6. This Assignment may be executed in one or more counterparts, each of which
is an original and all of which constitute the Assignment.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Assignment and Assumption Agreement effective as of the date first set
forth above.
ASSIGNOR:
Pegasus Solutions, Inc.
By: /s/ Ric L. Floyd
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Name: Ric L. Floyd
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Title: EVP & General Counsel
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ASSIGNEE:
Hotel Distribution System, LLC
By: /s/ Joe Humphry
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Name:
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Title:
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