TRAVELPORT LLC TRAVELPORT INC. $250,000,000 9% Senior Notes due 2016 Purchase Agreement
Exhibit 1.1
EXECUTION COPY
TRAVELPORT LLC
TRAVELPORT INC.
TRAVELPORT INC.
$250,000,000 9% Senior Notes due 2016
August 12, 2010
Credit Suisse Securities (USA) LLC (“Credit Suisse”),
As Representative of the Several Purchasers,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
As Representative of the Several Purchasers,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
1. Introductory. Travelport LLC, a Delaware limited liability company, and Travelport Inc.,
a Delaware corporation (collectively, the “Company”), agree with the several initial purchasers
named in Schedule A hereto (the “Purchasers”) subject to the terms and conditions stated herein, to
issue and sell to the several Purchasers $250,000,000 aggregate principal amount of their 9% Senior
Notes due 2016 (the “Offered Securities”, which term, as used herein, shall include the Guarantees
(as defined below)) to be issued under an indenture, dated as of August 18, 2010 (the “Indenture”),
among the Company, Travelport Limited, a Bermuda corporation (“Holdings”), TDS Investor
(Luxembourg), S.à.x.x. (“Luxembourg Guarantor”), Waltonville Limited, a Gibraltar corporation
(“Foreign Holdco”), the other guarantors listed on Schedule C hereto (the “Subsidiary Guarantors”
and, together with Holdings, Luxembourg Guarantor and Foreign Holdco, the “Guarantors”) and The
Bank of Nova Scotia Trust Company of New York, N.A., as trustee (the “Trustee”). The Offered
Securities will be unconditionally guaranteed as to the payment of principal and interest by the
Guarantors (the “Guarantees”).
The holders of the Offered Securities will be entitled to the benefits of a Registration
Rights Agreement dated as of the Closing Date among the Company, the Guarantors and the Purchasers
(the “Registration Rights Agreement”), pursuant to which the Company and the Guarantors agree to
file one or more registration statements with the Commission registering the resale of the Offered
Securities and the related Guarantees under the Offered Securities.
The Company and each Guarantor hereby agrees, jointly and severally, with the several
Purchasers as follows:
2. Representations and Warranties of the Company and each Guarantor. The Company and each
Guarantor, jointly and severally, represents and warrants to, and agrees with, the several
Purchasers that:
(a) Offering Circulars; Certain Defined Terms. The Company has prepared or will
prepare a Preliminary Offering Circular and a Final Offering Circular.
For purposes of this Agreement:
“Applicable Time” means 3:00 p.m. (New York City time) on the date of this Agreement.
“Closing Date” has the meaning set forth in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Credit Agreement” means the Second Amended and Restated Credit Agreement, dated August 23,
2006, as amended and restated on January 29, 2007, as further amended and restated on May 23, 2007,
among Travelport LLC, Travelport Limited, Waltonville Limited, UBS AG, Stamford Branch, and the
other lenders party thereto.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“Final Offering Circular” means the final offering circular relating to the Offered Securities
to be offered by the Purchasers that discloses the offering price and other final terms of the
Offered Securities and is dated as of the date of this Agreement (even if finalized and issued
subsequent to the date of this Agreement).
“Free Writing Communication” means a written communication (as such term is defined in Rule
405) that constitutes an offer to sell or a solicitation of an offer to buy the Offered Securities
and is made by means other than the Preliminary Offering Circular or the Final Offering Circular.
“General Disclosure Package” means the Preliminary Offering Circular together with any Issuer
Free Writing Communication existing at the Applicable Time and the information in which is intended
for general distribution to prospective investors, as evidenced by its being specified in Schedule
B hereto.
“Issuer Free Writing Communication” means a Free Writing Communication prepared by or on
behalf of the Company, used or referred to by the Company or containing a description of the final
terms of the Offered Securities or of their offering, in the form retained in the Company’s
records.
“Note Documents” means this Agreement, the Indenture, the Offered Securities, the Exchange
Securities (as defined in the Registration Rights Agreement) and the Registration Rights Agreement.
“Preliminary Offering Circular” means the preliminary offering circular, dated
August 12, 2010, relating to the Offered Securities to be offered by the Purchasers.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002, as amended
(“Xxxxxxxx-Xxxxx”), the Securities Act, the Exchange Act, the Rules and Regulations, the auditing
principles, rules, standards and practices applicable to auditors of companies that are not
“issuers” (as defined in Xxxxxxxx-Xxxxx) promulgated or approved by the Public Company Accounting
Oversight Board.
“Supplemental Marketing Material” means any Issuer Free Writing Communication other than any
Issuer Free Writing Communication specified in Schedule B hereto. Supplemental Marketing Materials
include, but are not limited to, the electronic Bloomberg roadshow slides and the accompanying
audio recording.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the
Securities Act.
(b) Disclosure. The Preliminary Offering Circular, as of its date, did not, the
General Disclosure Package, at the Applicable Time did not, and at the Closing Date will
not and the Final Offering Circular, in the form first used by the Purchasers to confirm
sales of the Offered Securities and as of the Closing Date, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company and the Guarantors make no representation or
warranty with respect to any statements or omissions made in reliance upon and in
conformity with information relating to any Purchaser furnished to the
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Company in writing by such Purchaser through Credit Suisse expressly for use in the
Preliminary Offering Circular, the General Disclosure Package and the Final Offering
Circular, which information is specified in Section 8(b) hereof. Except as disclosed in the
General Disclosure Package, on the date of this Agreement, Holdings’ Annual Report on Form
10-K most recently filed with the Commission, as amended by the most recent Form 10-K/A,
and all subsequent reports (collectively, the “Exchange Act Reports”) which have been filed
by the Company with the Commission and incorporated by reference in the Preliminary or
Final Offering Circular do not include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such documents, when they were
filed with the Commission, conformed in all material respects to the requirements of the
Exchange Act and the Rules and Regulations. The information required to be delivered to
holders and prospective purchasers of the Offered Securities pursuant to Section 4.03(a)(4)
of the Indenture and in accordance with Rule 144A(d)(4) (the “Additional Issuer
Information”) does not include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to statements
in or omissions from the Preliminary or Final Offering Circular based upon written
information furnished to the Company by Credit Suisse specifically for use therein, it
being understood and agreed that the only such information is that described as such in
Section 8(b) hereof.
(c) Additional Written Communications. Other than the Preliminary Offering Circular
and the Final Offering Circular, neither the Company (including its agents and
representatives, other than the Purchasers in their capacity as such) nor the Guarantors
have made, used, prepared, authorized, approved or referred to and will not prepare, make,
use, authorize, approve or refer to any written communication that constitutes an offer to
sell or solicitation of an offer to buy the Offered Securities without the consent of the
Purchasers other than the documents listed on Schedule B hereto, including a term sheet
substantially in the form of Exhibit B-1 hereto, and other written communications used in
accordance with Section 6(a).
(d) Financial Statements. The financial statements and the related notes thereto
contained or incorporated by reference in each of the General Disclosure Package and the
Final Offering Circular present fairly the financial position of the entities covered
thereby as of the dates indicated and the results of their operations and the changes in
their cash flows for the periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby other than, in the case of interim financial
statements, the absence of notes and normal year-end adjustments; the other financial
information included in each of the General Disclosure Package and the Final Offering
Circular has been derived from the accounting records of the entities covered thereby and
presents fairly the information shown thereby.
(e) No Material Adverse Change. Since the date of the most recent financial
statements contained or incorporated by reference in each of the General Disclosure Package
and the Final Offering Circular, (i) there has not been any material change in the capital
stock or any increase in long-term debt of Holdings or any of its subsidiaries taken as a
whole, or any dividend or distribution of any kind declared, set aside for payment, paid or
made by Holdings or the Company on any class of capital stock, or any material adverse
change, or any development involving a prospective material adverse change, in or affecting
the business, properties, management, financial position or results of operations of
Holdings and its subsidiaries taken as a whole; (ii) neither Holdings nor any of its
subsidiaries has entered into any transaction or agreement that is material to Holdings and
its subsidiaries taken as a whole or incurred any liability or obligation, direct or
contingent, that is material to Holdings and its subsidiaries taken as a whole; and (iii)
neither Holdings nor any of its subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor disturbance or dispute or any action, order or
decree of any court
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or arbitrator or governmental or regulatory authority, except in each case as otherwise
disclosed in the General Disclosure Package.
(f) Organization and Good Standing. The Company and each of the Guarantors have been
duly organized and are validly existing and in good standing under the laws of their
respective jurisdictions of organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification, and have all power
and authority necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so qualified, in good
standing or have such power or authority would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business, properties,
management, financial position or results of operations of Holdings and its subsidiaries
taken as a whole or on the performance by the Company and the Guarantors of their
obligations under the Offered Securities and the Guarantees (a “Material Adverse Effect”).
(g) Corporate Structure. The entities listed on Schedule D hereto are the only
subsidiaries, direct or indirect, of Holdings.
(h) Capitalization. As of June 30, 2010, Holdings will have an authorized
capitalization as set forth in each of the General Disclosure Package and the Final
Offering Circular under the heading “Capitalization”; and all the outstanding shares of
capital stock or other equity interests of Foreign Holdco, Luxembourg Guarantor, the
Company and each Subsidiary Guarantor have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or indirectly by Holdings, free and
clear of any lien, charge, encumbrance, security interest, restriction on voting or
transfer or any other claim of any third party (other than security interests granted
pursuant to the Credit Agreement).
(i) Due Authorization. The Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors.
(j) The Indenture. The Indenture has been duly authorized by Holdings, Foreign
Holdco, Luxembourg Guarantor, the Company and each of the Subsidiary Guarantors and, when
duly executed and delivered in accordance with its terms by each of the parties thereto,
will constitute a valid and legally binding agreement of the Company and each of the
Guarantors enforceable against the Company and each of the Guarantors in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors’ rights generally or by equitable
principles relating to enforceability (collectively, the “Enforceability Exceptions”); and
on the Closing Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”),
and the rules and regulations of the Commission applicable to an indenture that is
qualified thereunder.
(k) The Offered Securities and the Guarantees. The Offered Securities have been duly
authorized by the Company and, when duly executed, authenticated, issued and delivered as
provided in the Indenture and paid for as provided herein, will be duly and validly issued
and outstanding and will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the Indenture; the
Guarantees have been duly authorized by Holdings, Foreign Holdco, Luxembourg Guarantor and
each of the Subsidiary Guarantors and, when the Offered Securities have been duly executed,
authenticated, issued and delivered as provided in the Indenture and paid for as provided
herein, will be valid and legally binding obligations of each of the Guarantors,
enforceable against each of the Guarantors in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
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(l) The Exchange Securities. The Exchange Securities (including the related
guarantees) have been duly authorized by Holdings, Foreign Holdco, Luxembourg Guarantor,
the Company and by each of the Subsidiary Guarantors and, when duly executed,
authenticated, issued and delivered as contemplated by the Registration Rights Agreement,
will be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company, as issuer, and each of the Guarantors, as guarantors,
enforceable against the Company and each of the Guarantors in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the
Indenture.
(m) Purchase Agreement and Registration Rights Agreements. Each of this Agreement
and the Registration Rights Agreement have been duly authorized, executed and delivered by
Holdings, Foreign Holdco, Luxembourg Guarantor, the Company and each of the Subsidiary
Guarantors; and, when duly executed and delivered in accordance with its terms by each of
the parties thereto, will constitute valid and legally binding agreements of the Company
and each of the Guarantors enforceable against the Company and each of the Guarantors in
accordance with their terms, subject to the Enforceability Exceptions, and except that
rights to indemnity and contribution thereunder may be limited by applicable law and public
policy.
(n) Descriptions of the Note Documents. The Note Documents conform in all material
respects to the description thereof contained in each of the General Disclosure Package and
the Final Offering Circular.
(o) No Violation or Default. Neither Holdings nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which Holdings or any of its subsidiaries is a party or by which
any of them are bound or to which any of the property or assets of any of them is subject;
or (iii) in violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority, except, in the case of
clauses (ii) and (iii) above, for any such default or violation that would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(p) No Conflicts. The execution, delivery and performance by the Company and each
Guarantor of each of the Note Documents to which each is a party, the issuance and sale of
the Offered Securities (including the Guarantees) and compliance by the Company and each
Guarantor with the terms thereof and the consummation of the transactions contemplated by
the Note Documents will not (i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or, other than as created
pursuant to the Credit Agreement, result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of the Guarantors pursuant
to, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company or any of the Guarantors is a party or by which the Company
or any of the Guarantors is bound or to which any of the property or assets of the Company
or any of the Guarantors is subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the Company or any of the
Guarantors or (iii) result in the violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (i) and (iii) above, for any such conflict, breach,
violation or default that would not, individually or in the aggregate, reasonably be expect
to have a Material Adverse Effect.
(q) No Consents Required. No consent, approval, authorization, order, registration
or qualification of or with any court or arbitrator or governmental or regulatory authority
is required
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for the execution, delivery and performance by the Company and each Guarantor of each of
the Note Documents to which each is a party, the issuance and sale of the Offered
Securities (including the Guarantees) and compliance by the Company and each Guarantor with
the terms thereof and the consummation of the transactions contemplated by the Note
Documents, except for such consents, approvals, authorizations, orders and registrations or
qualifications as may be required (i) under applicable state securities laws in connection
with the purchase and resale of the Offered Securities by the Purchasers and (ii) with
respect to the Exchange Securities (including the related guarantees) under the Securities
Act, the Trust Indenture Act and applicable state securities laws as contemplated by the
Registration Rights Agreement.
(r) Legal Proceedings. Except as described in each of the General Disclosure Package
and the Final Offering Circular, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which Holdings or any of its
subsidiaries is a party or to which any property or assets of Holdings or any of its
subsidiaries is the subject that, individually or in the aggregate, if determined adversely
to Holdings or any of its subsidiaries, would reasonably be expected to have a Material
Adverse Effect; and no such investigations, actions, suits or proceedings are threatened
or, to the knowledge of the Company and each Guarantor, contemplated by any governmental or
regulatory authority or threatened by others.
(s) Independent Accountants. Deloitte LLP, who have certified certain financial
statements of Holdings, are independent public accountants with respect to Holdings within
the meaning of Rule 101 of the Code of Professional Conduct of the American Institute of
Certified Public Accountants and its interpretations and rulings thereunder.
(t) Title to Real and Personal Property. Holdings and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise use, all
items of real and personal property that are material to the respective businesses of
Holdings and its subsidiaries, in each case free and clear of all liens, encumbrances,
claims and defects and imperfections of title except those that (i) do not materially
interfere with the use made and proposed to be made of such property by Holdings and its
subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect or (iii) as created pursuant to the Credit Agreement.
(u) Title to Intellectual Property. Holdings and its subsidiaries own or possess
adequate rights to use all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights, licenses and
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct of their
respective businesses except where the failure to own or possess such rights would not
reasonably be expected to have a Material Adverse Effect; and the conduct of their
respective businesses will not conflict in any respect with any such rights of others
except for any such conflicts as would not reasonably be expected to result in a Material
Adverse Effect, and Holdings and its subsidiaries have not received any notice of any claim
of infringement of or conflict with any such rights of others.
(v) Investment Company Act. Neither Holdings or any of its subsidiaries is, and
after giving effect to the offering and sale of the Offered Securities and the application
of the proceeds thereof as described in each of the General Disclosure Package and the
Final Offering Circular none of them will be an “investment company” or an entity
“controlled” by an “investment company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission thereunder (collectively,
the “Investment Company Act”).
(w) Taxes. Holdings and its subsidiaries have paid all federal, state, local and
foreign taxes and filed all tax returns required to be paid or filed through the date
hereof (except in any case in which the failure to so file would not reasonably be expected
to have a Material Adverse Effect) and paid all taxes due thereon to the extent that any
taxes are due and payable, except for
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any tax that is currently being contested in good faith or taxes the failure of which to
pay would not reasonably be expected to have a Material Adverse Effect; and except as
otherwise disclosed in each of the General Disclosure Package and the Final Offering
Circular, there is no tax deficiency that has been, or could reasonably be expected to be,
asserted against Holdings or any of its subsidiaries or any of their respective properties
or assets except as would not reasonably be expected to have a Material Adverse Effect.
(x) Licenses and Permits. Holdings and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations
and filings with, the appropriate federal, state, local or foreign governmental or
regulatory authorities that are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as described in each of the
General Disclosure Package and the Final Offering Circular, except where the failure to
possess or make the same would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect and except as described in each of the General
Disclosure Package and the Final Offering Circular, neither Holdings nor any of its
subsidiaries has received notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course.
(y) No Labor Disputes. No labor disturbance by or dispute with employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company and each of
the Guarantors, is contemplated or threatened, except, in each case, for any labor dispute
or disturbance as would not reasonably be expected to have a Material Adverse Effect.
(z) Compliance With Environmental Laws. The Company and its subsidiaries (i) are in
compliance with any and all applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”); (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or contaminants, except in any such
case for any such failure to comply with, or failure to receive required permits, licenses
or approvals, or liability, as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(aa) Compliance With ERISA. Except as described in the General Disclosure Package
and the Final Offering Circular, (i) each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
that is maintained, administered or contributed to by the Company or any of its affiliates
for employees or former employees of the Company and its affiliates has been maintained in
compliance with its terms and the requirements of any applicable statutes, orders, rules
and regulations, including but not limited to ERISA and the Internal Revenue Code of 1986,
as amended (the “Code”); (ii) no prohibited transaction, within the meaning of Section 406
of ERISA or Section 4975 of the Code, has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption; and (iii) for
each such plan that is subject to the funding rules of Section 412 of the Code or Section
302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code has
been incurred, whether or not waived, and the fair market value of the assets of each such
plan (excluding for these purposes accrued but unpaid contributions) exceeds the present
value of all benefits accrued under such plan determined using reasonable actuarial
assumptions except in the cases of (i), (ii) and (iii) as would not reasonably be expected
to have a Material Adverse Effect.
(bb) Accounting Controls. Except as described in the General Disclosure Package and
the Final Offering Circular, Holdings and its subsidiaries on a consolidated basis maintain
systems
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of internal accounting controls including, but not limited to, disclosure controls and
procedures, internal controls over accounting matters and financial reporting, and legal
and regulatory compliance controls (collectively, “Internal Controls”), that comply with
the Securities Laws and are sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Holdings has not publicly disclosed or reported
to the Audit Committee of the Board of Directors, and within the next 90 days, Holdings
does not reasonably expect to publicly disclose or report to its Audit Committee or its
Board of Directors, a significant deficiency, material weakness, change in Internal
Controls or fraud involving management or other employees who have a significant role in
Internal Controls, any violation of, or failure to comply with, the Securities Laws, which,
if determined adversely, would have a Material Adverse Effect.
(cc) Insurance. Holdings and its subsidiaries have insurance or self-insurance
covering their respective properties, operations, personnel and businesses, including
business interruption insurance, which insurance is in amounts and insures against such
losses and risks as are adequate to protect Holdings and its subsidiaries and their
respective businesses; and neither Holdings nor any of its subsidiaries has (i) received
notice from any insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to continue such insurance or
(ii) any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage at reasonable cost
from similar insurers or to provide self-insurance as may be necessary to continue its
business.
(dd) No Unlawful Payments. Neither Holdings nor any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or other person associated
with or acting on behalf of the Company, Holdings or any of their respective subsidiaries
has (i) used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from corporate
funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(ee) Anti-Money Laundering. The operations of Holdings and its subsidiaries are and
have been conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving Holdings or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of Holdings,
threatened, except, in each case, as would not reasonably be expected to have a Material
Adverse Effect.
(ff) Office of Foreign Assets Control. Neither Holdings nor any of its subsidiaries
nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate
of Holdings or any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”), except, in each case, as would not reasonably be expected to have a Material
Adverse Effect; and Holdings will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the
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purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(gg) Solvency. On and immediately after the Closing Date, Holdings and its
subsidiaries taken as a whole (after giving effect to the issuance of the Offered
Securities and the other transactions related thereto as described in each of the General
Disclosure Package and the Final Offering Circular) will be Solvent. As used in this
paragraph, the term “Solvent” means, with respect to a particular date, that on such date
(i) the present fair market value (or present fair saleable value) of the assets of
Holdings and its subsidiaries taken as a whole are not less than the total amount required
to pay the liabilities of Holdings and its subsidiaries taken as a whole on their total
existing debts and liabilities (including contingent liabilities) as they become absolute
and matured; (ii) Holdings and its subsidiaries taken as a whole are able to realize upon
their assets and pay their debts and other liabilities, contingent obligations and
commitments as they mature and become due in the normal course of business; (iii) assuming
consummation of the issuance of the Offered Securities as contemplated by this Agreement,
the General Disclosure Package and the Final Offering Circular and the current borrowings
under the Credit Agreement, Holdings and their subsidiaries taken as a whole are not
incurring debts or liabilities beyond its ability to pay as such debts and liabilities
mature; and (iv) Holdings and its subsidiaries taken as a whole are not engaged in any
business or transaction, and do not propose to engage in any business or transaction, for
which their property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which the Company is engaged.
(hh) No Restrictions on Subsidiaries. None of the Company or any of its subsidiaries
is currently prohibited, directly or indirectly, under any agreement or other instrument to
which it is a party or is subject, from paying any dividends to the Company, from making
any other distribution on such subsidiary’s capital stock, from repaying to the Company any
loans or advances to such subsidiary from the Company or from transferring any of such
subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(ii) No Broker’s Fees. Neither Holdings nor any of its subsidiaries is a party to
any contract, agreement or understanding with any person (other than this Agreement) that
would give rise to a valid claim against any of them or any Purchaser for a brokerage
commission, finder’s fee or like payment in connection with the offering and sale of the
Offered Securities.
(jj) Rule 144A Eligibility. On the Closing Date, the Offered Securities will not be
of the same class (within the meaning of Rule 144A(d)(3) of the Securities Act) as
securities listed on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in an automated inter-dealer quotation system; and each of the
Preliminary Offering Circular and the Final Offering Circular, as of its respective date,
contains or will contain all the information that, if requested by a prospective purchaser
of the Offered Securities, would be required to be provided to such prospective purchaser
pursuant to Rule 144A(d)(4) under the Securities Act.
(kk) No Integration. Neither the Company or any its affiliates (as defined in Rule
501(b) of Regulation D) has, directly or through any agent, sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security (as defined in
the Securities Act), that is or will be integrated with the sale of the Offered Securities
in a manner that would require registration of the Offered Securities under the Securities
Act.
(ll) No General Solicitation or Directed Selling Efforts. Neither the Company nor
any of its affiliates or any other person acting on its or their behalf (other than the
Purchasers, as to which no representation is made) has (i) solicited offers for, or offered
or sold, the Offered Securities by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act or (ii) engaged in
any directed selling efforts within the meaning of
-9-
Regulation S under the Securities Act (“Regulation S”), and all such persons have complied
with the offering restrictions requirement of Regulation S.
(mm) Securities Law Exemptions. Assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 4 and their compliance with their
agreements set forth therein, it is not necessary, in connection with the issuance and sale
of the Offered Securities to the Purchasers and the offer, resale and delivery of the
Offered Securities by the Purchasers in the manner contemplated by this Agreement, the
General Disclosure Package and the Final Offering Circular, to register the Offered
Securities under the Securities Act or to qualify the Indenture under the Trust Indenture
Act.
(nn) No Stabilization. Neither the Company nor any of the Guarantors has taken,
directly or indirectly, any action designed to or that could reasonably be expected to
cause or result in any stabilization or manipulation of the price of the Offered
Securities.
(oo) Margin Rules. Neither the issuance, sale and delivery of the Offered Securities
nor the application of the proceeds thereof by the Company as described in the General
Disclosure Package or the Final Offering Circular will violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other regulation of such Board of
Governors.
(pp) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in each of
the General Disclosure Package and the Final Offering Circular has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith.
(qq) Statistical and Market Data. Nothing has come to the attention of the Company
that has caused the Company to believe that the statistical and market-related data
included in each of the General Disclosure Package and the Final Offering Circular is not
based on or derived from sources that are reliable and accurate in all material respects.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to the several Purchasers, and each of the Purchasers agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 98.125% of the principal amount
thereof plus accrued interest from August 18, 2010 to the Closing Date (as hereinafter defined) the
respective principal amounts of Offered Securities set forth opposite the names of the several
Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered Securities to be
offered and sold by the Purchasers in reliance on Regulation S (the “Regulation S Securities”) in
the form of one or more permanent global securities in registered form without interest coupons
(the “Offered Regulation S Global Securities”) which will be deposited with the Trustee as
custodian for The Depository Trust Company (“DTC”) for the respective accounts of the DTC
participants for Xxxxxx Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (“Euroclear”), and Clearstream Banking, société anonyme (“Clearstream,
Luxembourg”) and registered in the name of Cede & Co., as nominee for DTC. The Company will deliver
against payment of the purchase price the Offered Securities to be purchased by each Purchaser
hereunder and to be offered and sold by each Purchaser in reliance on Rule 144A (the “144A
Securities”) in the form of one permanent global security in definitive form without interest
coupons (the “Restricted Global Securities”) deposited with the Trustee as custodian for DTC and
registered in the name of Cede & Co., as nominee for DTC. The Regulation S Global Securities and
the Restricted Global Securities shall be assigned separate CUSIP numbers. The Restricted Global
Securities shall include the legend regarding restrictions on transfer set forth under “Transfer
Restrictions” in the Final Offering Circular. Until the termination of the distribution compliance
period (as defined in Regulation S) with respect to the offering of the Offered Securities,
interests in the Regulation S Global Securities may only be held by the DTC participants for
Euroclear and Clearstream, Luxembourg. Interests in any permanent global Securities will be held
only in book-entry
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form through Euroclear, Clearstream, Luxembourg or DTC, as the case may be, except in the limited
circumstances described in the Final Offering Circular.
Payment for the Regulation S Securities and the 144A Securities shall be made by the
Purchasers in Federal (same day) funds by wire transfer to an account at a bank acceptable to
Credit Suisse drawn to the order of the Company at the office of Cravath, Swaine & Xxxxx LLP, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, at 9:30 a.m., New York City time, on August 18, 2010, or
at such other time not later than seven full business days thereafter as Credit Suisse and the
Company determine, such time being herein referred to as the “Closing Date”, against delivery to
the Trustee as custodian for DTC of (i) the Regulation S Global Securities representing all of the
Regulation S Securities for the respective accounts of the DTC participants for Euroclear and
Clearstream, Luxembourg and (ii) the Restricted Global Securities representing all of the Offered
144A Securities. The Regulation S Global Securities and the Restricted Global Securities will be
made available for checking at the above office of Cravath, Swaine & Xxxxx LLP at least 24 hours
prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each Purchaser severally
represents and warrants to the Company and the Guarantors that it is an “accredited
investor” within the meaning of Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities have not been
registered under the Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in accordance with Regulation
S or pursuant to an exemption from the registration requirements of the Securities Act.
Each Purchaser severally represents and agrees that it has offered and sold the Offered
Securities, and will offer and sell the Offered Securities (i) as part of its distribution
at any time and (ii) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly,
neither such Purchaser nor its affiliates, nor any persons acting on its or their behalf,
have engaged or will engage in any directed selling efforts with respect to the Offered
Securities, and such Purchaser, its affiliates and all persons acting on its or their
behalf have complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser severally agrees that, at or prior to confirmation of sale of
the Offered Securities, other than a sale pursuant to Rule 144A, such Purchaser will have
sent to each distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Offered Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the “Securities Act”) and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the meanings given to them by Regulation S.”
Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates has not
entered and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for any such arrangements with the other
Purchasers or affiliates of the other Purchasers or with the prior written consent of the
Company and the Guarantors.
(d) Each Purchaser severally agrees that it and each of its affiliates will not offer
or sell the Offered Securities in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c), including, but not
limited to (i) any advertisement,
-11-
article, notice or other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. Each Purchaser
severally agrees, with respect to resales made in reliance on Rule 144A of any of the
Offered Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of such Offered
Securities has been made in reliance upon the exemption from the registration requirements
of the Securities Act provided by Rule 144A.
(e) In relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each of the
Purchasers severally represents and agrees that with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant
Implementation Date”) it has not made and will not make an offer of Offered Securities to
the public in that Relevant Member State prior to the publication of a prospectus in
relation to the Offered Securities which has been approved by the competent authority in
that Relevant Member State or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member State, all in accordance
with the Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Offered Securities to the public in that
Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate purpose is
solely to invest in securities;
(ii) to any legal entity which has two or more of (A) an average of at least
250 employees during the last financial year; (B) a total balance sheet of more
than €43,000,000 and (C) an annual net turnover of more than €50,000,000, as shown
in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the
Company of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of Offered Securities to
the public” in relation to any Offered Securities in any Relevant Member State means the
communication in any form and by any means of sufficient information on the terms of the
offer and the Offered Securities to be offered so as to enable an investor to decide to
purchase or subscribe the Offered Securities, as the same may be varied in that Member
State by any measure implementing the Prospectus Directive in that Member State and the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(f) Each of the Purchasers severally represents and agrees that:
(i) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the FSMA) received by it
in connection with the issue or sale of the Offered Securities in circumstances in
which Section 21(1) of the FSMA does not apply to the Company or the Guarantors;
and
(ii) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Offered Securities in,
from or otherwise involving the United Kingdom.
5. Certain Agreements of the Company and each Guarantor. The Company and each Guarantor
jointly and severally agrees with the several Purchasers that:
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(a) Amendments and Supplements to Offering Circulars. The Company and the Guarantors
will promptly advise Credit Suisse of any proposal to amend or supplement the Preliminary
or Final Offering Circular and will not effect such amendment or supplementation without
Credit Suisse’s consent. If, at any time prior to the completion of the resale of the
Offered Securities by the Purchasers, there occurs an event or development as a result of
which any document included in the Preliminary or Final Offering Circular, the General
Disclosure Package or any Supplemental Marketing Material, if republished immediately
following such event or development, (i) would include an untrue statement of a material
fact, (ii) would fail to comply with applicable law, or (iii) omitted or would omit to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, the Company and the
Guarantors promptly will notify Credit Suisse of such event and promptly will prepare and
furnish, at its own expense, to the Purchasers and the dealers and to any other dealers at
the request of Credit Suisse, an amendment or supplement which will correct such statement
or omission or will comply with applicable law. Neither Credit Suisse’s consent to, nor
the Purchasers’ delivery to offerees or investors of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 7.
(b) Furnishing of Offering Circulars. The Company and the Guarantors will furnish to
Credit Suisse copies of the Preliminary Offering Circular, each other document comprising a
part of the General Disclosure Package, the Final Offering Circular, all amendments and
supplements to such documents and each item of Supplemental Marketing Material, in each
case as soon as available and in such quantities as Credit Suisse reasonably requests. At
any time when the Company is not filing Exchange Act Reports with the Commission, the
Company and the Guarantors will promptly furnish or cause to be furnished to Credit Suisse
(and, upon request, to each of the other Purchasers) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and purchasers, copies of
the information required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Rule 144A(d)(4) (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with resales by such holders of the
Offered Securities. The Company will pay the expenses of printing and distributing to the
Purchasers all such documents.
(c) Notice to the Representative. The Company will advise Credit Suisse promptly,
and confirm such advice in writing, (i) of the issuance by any governmental or regulatory
authority of any order preventing or suspending the use of the General Disclosure Package
or the Final Offering Circular or the initiation or threatening of any proceeding for that
purpose; and (ii) of the receipt by the Company of any notice with respect to any
suspension of the qualification of the Offered Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and the
Company will use its reasonable best efforts to prevent the issuance of any such order
preventing or suspending the use of the General Disclosure Package or the Final Offering
Circular or suspending any such qualification of the Offered Securities and, if any such
order is issued, will obtain as soon as possible the withdrawal thereof.
(d) Blue Sky Compliance. The Company will qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as Credit Suisse shall
reasonably request and will continue such qualifications in effect so long as required for
the offering and resale of the Offered Securities; provided that neither the
Company nor any of the Guarantors shall be required to (i) qualify as a foreign corporation
or other entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of process in
any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is
not otherwise so subject.
(e) Restriction on Sale of Securities. For a period of 90 days after the date
hereof, neither the Company nor any Guarantor will, directly or indirectly, take any of the
following actions with respect to any United States dollar-denominated debt securities
issued or guaranteed
-13-
by the Company or such Guarantor and having a maturity of more than one year from the date
of issue or any securities convertible into or exchangeable or exercisable for any of its
Securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or
otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell,
contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities,
(iii) enter into any swap, hedge or any other agreement that transfers, in whole or in
part, the economic consequences of ownership of Lock-Up Securities, (iv) establish or
increase a put equivalent position or liquidate or decrease a call equivalent position in
Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with
the Commission a registration statement under the Securities Act relating to Lock-Up
Securities or publicly disclose the intention to take any such action, without the prior
written consent of Credit Suisse except issuances of Lock-Up Securities pursuant to the
conversion or exchange of convertible or exchangeable securities, in each case outstanding
on the date hereof. Neither the Company nor any Guarantor will at any time, directly or
indirectly, take any action referred to in clauses (i) through (v) above with respect to
any securities under circumstances where such offer, sale, pledge, contract or disposition
would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor
of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered
Securities.
(f) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Offered Securities as described in each of the General Disclosure Package and the Final
Offering Circular under the heading “Use of Proceeds” and, except as disclosed in the
General Disclosure Package, the Company does not intend to use any of the proceeds from the
sale of the Offered Securities hereunder to repay any outstanding debt owed to any
affiliate of any Purchaser.
(g) Supplying Information. While the Offered Securities remain outstanding and are
“restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the
Company and each of the Guarantors will, during any period in which the Company is not
subject to and in compliance with Section 13 or 15(d) of the Exchange Act, furnish to
holders of the Offered Securities and prospective purchasers of the Offered Securities
designated by such holders, upon the request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(h) No Resales by the Company. Until the issuance of the Exchange Securities, the
Company will not, and will not permit any of their affiliates (as defined in Rule 144 under
the Securities Act) to, resell any of the Offered Securities that have been acquired by any
of them, except for Offered Securities purchased by the Company or any of its affiliates
and resold in a transaction registered under the Securities Act.
(i) No Integration. Neither the Company nor any of its affiliates (as defined in
Rule 501(b) of Regulation D) will, directly or through any agent, sell, offer for sale,
solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the
Securities Act), that is or will be integrated with the sale of the Offered Securities in a
manner that would require registration of the Securities under the Securities Act.
(j) No General Solicitation or Directed Selling Efforts. Except as required by the
Registration Rights Agreement, neither the Company nor any of its affiliates or any other
person acting on its or their behalf (other than the Purchasers, as to which no covenant is
given) will (i) solicit offers for, or offer or sell, the Offered Securities by means of
any form of general solicitation or general advertising within the meaning of Rule 502(c)
of Regulation D or in any manner involving a public offering within the meaning of Section
4(2) of the Securities Act or (ii) engage in any directed selling efforts within the
meaning of Regulation S, and all such persons will comply with the offering restrictions
requirement of Regulation S.
(k) Investment Company. During the period prior to the completion of the resale of
the Offered Securities by the Purchasers, the Company will not nor will any Guarantor be or
become,
-14-
an open-end investment company, unit investment trust or face-amount certificate company
that is or is required to be registered under Section 8 of the Investment Company Act.
(l) Payment of Expenses. The Company and the Guarantors jointly and severally agree
to pay all expenses incidental to the performance of their respective obligations under
this Agreement, the Indenture and the Registration Rights Agreement, including but not
limited to (i) the fees and expenses of the Trustee and its professional advisers; (ii) all
expenses in connection with the execution, issue, authentication, packaging and initial
delivery of the Offered Securities and, as applicable, the Exchange Securities, the
preparation and printing of this Agreement, the Registration Rights Agreement, the Offered
Securities, the Indenture, the Preliminary Offering Circular, any other documents
comprising any part of the General Disclosure Package, the Final Offering Circular, all
amendments and supplements thereto, each item of Supplemental Marketing Material and any
other document relating to the issuance, offer, sale and delivery of the Offered Securities
and as applicable, the Exchange Securities; (iii) the cost of any advertising approved by
the Company in connection with the issue of the Offered Securities; (iv) any expenses
(including fees and disbursements of counsel to the Purchasers) incurred in connection with
qualification of the Offered Securities or the Exchange Securities for sale under the laws
of such jurisdictions in the United States and Canada as Credit Suisse designates and the
preparation and printing of memoranda relating thereto; (v) any fees charged by investment
rating agencies for the rating of the Offered Securities or the Exchange Securities; and
(vi) expenses incurred in distributing the Preliminary Offering Circular, any other
documents comprising any part of the General Disclosure Package, the Final Offering
Circular (including any amendments and supplements thereto) and any Supplemental Marketing
Material to the Purchasers. The Company and the Guarantors will also pay or reimburse the
Purchasers (to the extent incurred by them) for costs and expenses of the Purchasers and
the Company’s officers and employees and any other expenses of the Purchasers, the Company
and the Guarantors relating to investor presentations on any “road show” in connection with
the offering and sale of the Offered Securities including, without limitation, any travel
expenses of the Company’s and the Guarantors’ officers and employees and any other expenses
of the Company and the Guarantors including the chartering of airplanes.
(m) No Stabilization. Neither the Company nor any of the Guarantors will take,
directly or indirectly, any action designed to or that could reasonably be expected to
cause or result in any stabilization or manipulation of the price of the Offered
Securities.
6. Free Writing Communications. (a) Issuer Free Writing Communications. The Company
and each Guarantor represents and agrees that, unless it obtains the prior consent of
Credit Suisse, and each Purchaser represents and agrees that, unless it obtains the prior
consent of the Company and Credit Suisse, it has not made and will not make any offer
relating to the Offered Securities that would constitute an Issuer Free Writing
Communication.
(b) Term Sheets. The Company consents to the use by any Purchaser of a Free Writing
Communication that (i) contains only (A) information describing the preliminary terms of
the Offered Securities or their offering or (B) information that describes the final terms
of the Offered Securities or their offering and that is included in or is subsequently
included in the Final Offering Circular, including by means of a pricing term sheet
substantially in the form of Exhibit B-1 hereto, or (ii) does not contain any material
information about the Company or any Guarantor or their securities that was provided by or
on behalf of the Company or any Guarantor, it being understood and agreed that the Company
and each Guarantor shall not be responsible to any Purchaser for liability arising from any
inaccuracy in such Free Writing Communications referred to in clause (i) or (ii) as
compared with the information in the Preliminary Offering Circular, the Final Offering
Circular or the General Disclosure Package.
7. Conditions of the Obligations of the Purchasers. The obligations of the several
Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the
representations and warranties of the Company and the Guarantors herein (as though made on the
Closing Date), to the
-15-
accuracy of the statements of officers of the Company and the Guarantors made pursuant to the
provisions hereof, to the performance by the Company and the Guarantors of their obligations
hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Purchasers shall have received letters, dated,
respectively, the date hereof on the General Disclosure Package and the Closing Date on the
Final Offering Circular, of Deloitte and Touche LLP confirming that they are a registered
public accounting firm and independent public accountants within the meaning of the
Securities Laws and substantially in the form of Schedule E hereto (except that, in any
letter dated on the Closing Date, the specified date referred to in Schedule E hereto shall
be a date no more than three days prior to such Closing Date).
(b) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company, the Guarantors and their
respective subsidiaries taken as a whole which, in the judgment of Credit
Suisse, is material and adverse and makes it impractical or inadvisable to market the
Offered Securities; (ii) any downgrading in the rating of any debt securities of the
Company or any Guarantor by any “nationally recognized statistical rating organization” (as
defined for purposes of Rule 436(g)), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of the Company or any
Guarantor (other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating) or any announcement that the
Company or any Guarantor has been placed on negative outlook; (iii) any change in U.S. or
international financial, political or economic conditions or currency exchange rates or
exchange controls the effect of which is such as to make it, in the judgment of Credit
Suisse, impractical to market or to enforce contracts for the sale of the Offered
Securities, whether in the primary market or in respect of dealings in the secondary
market, (iv) any suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum or maximum prices for trading on
such exchange; (v) or any suspension of trading of any securities of the Company or any
Guarantor on any exchange or in the over-the-counter market; (vi) any banking moratorium
declared by any U.S. federal or New York authorities; (vii) any major disruption of
settlements of securities, payment, or clearance services in the United States or any other
country where such securities are listed or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency if, in the judgment
of Credit Suisse, the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency is such as to make it in the judgment of Credit Suisse impractical or
inadvisable to market the Offered Securities or to enforce contracts for the sale of the
Offered Securities.
(c) Opinions of Counsel for Company. The Purchasers shall have received opinions,
dated the Closing Date, of (1) Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda legal
counsel for the Company, (2) Hassans International Law Firm, special Gibraltar counsel for
the Company and (3) Xxxxxx & Xxxxxxxxx, special Luxembourg counsel for the Company, in each
case in form and substance reasonably satisfactory to the Purchasers. In addition,
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company and the Guarantors, shall
have furnished to the Purchasers an opinion and 10b-5 statement, dated the Closing Date and
addressed to the Purchasers, in each case in form and substance reasonably satisfactory to
the Purchasers.
(d) Opinion of Counsel for Purchasers. The Purchasers shall have received from
Cravath, Swaine & Xxxxx LLP, counsel for the Purchasers, such opinion or opinions, dated
the Closing Date, with respect to such matters as Credit Suisse may require, and the
Company and the Guarantors shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters. In rendering such
opinion, Cravath, Swaine & Xxxxx LLP may rely as to the incorporation and organization of
the Company and the Guarantors and all
-16-
other matters governed by the laws of its respective jurisdiction of incorporation or
organization upon the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP referred to
above.
(e) Officers’ Certificate. The Purchasers shall have received a certificate,
satisfactory to the Purchasers, dated the Closing Date, of an executive officer of the
Company who has specific knowledge of the Company’s and the Guarantors’ financial matters,
stating that the representations and warranties of the Company and the Guarantors in this
Agreement are true and correct, that the Company and the Guarantors have complied with all
agreements and satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the date of the most
recent financial statements in the General Disclosure Package, there has been no material
adverse change, nor any development or event involving a prospective material adverse
change, in the condition (financial or otherwise), results of operations, business,
properties or prospects of the Company, the Guarantors and their respective subsidiaries
taken as a whole except as set forth in the General Disclosure Package or as described in
such certificate.
(f) Good Standing. The Purchasers shall have received on and as of the Closing Date
satisfactory evidence of the good standing of the Company and each of the Guarantors in
their respective jurisdictions of organization (if applicable) as the Purchasers may
reasonably request, in each case in writing or any standard form of telecommunication, from
the appropriate governmental authorities of such jurisdictions.
The Company and the Guarantors will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably request. Credit Suisse
may in its sole discretion waive on behalf of the Purchasers compliance with any conditions to the
obligations of the Purchasers hereunder, whether in respect of an Optional Closing Date or
otherwise.
8. Indemnification and Contribution. (a) Indemnification of Purchasers. The Company and
the Guarantors will jointly and severally indemnify and hold harmless each Purchaser, its officers,
employees, agents, partners, members, directors and its affiliates and each person, if any, who
controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, an “Indemnified Party”), against any and all losses, claims, damages or
liabilities, joint or several, to which such Indemnified Party may become subject, under the
Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any material fact contained
in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or
supplemented, or any Issuer Free Writing Communication (including with limitation, any Supplemental
Marketing Material), or arise out of or are based upon the omission or alleged omission of a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading and will reimburse each Indemnified Party for any legal
or other expenses reasonably incurred by such Indemnified Party in connection with investigating,
preparing or defending against any loss, claim, damage, liability, action, litigation,
investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto)
whether threatened or commenced and in connection with the enforcement of this provision with
respect to any of the above as such expenses are incurred; provided, however, that the Company and
the Guarantors will not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Purchaser through Credit Suisse specifically
for use therein, it being understood and agreed that the only such information consists of the
information described as such in subsection (b) below.
(b) Indemnification of the Company and the Guarantors. Each Purchaser will severally and not
jointly indemnify and hold harmless each of the Company, the Guarantors, each of their respective
directors and each of their respective officers, and the Guarantors and each person, if any, who
controls the Company or such Guarantor within the meaning of Section 15 of the Securities Act or
Section 20 of the
-17-
Exchange Act (each, a “Purchaser Indemnified Party”), against any losses, claims,
damages or liabilities
to which such Purchaser Indemnified Party may become subject, under the Securities Act, the
Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact contained in the
Preliminary Offering Circular or the Final Offering Circular, in each case as amended or
supplemented, or any Issuer Free Writing Communication or arise out of or are based upon
the omission or the alleged omission of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with written information
furnished to the Company by such Purchaser through Credit Suisse specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by such Purchaser Indemnified Party
in connection with investigating, preparing or defending against any such loss, claim, damage,
liability, action, litigation, investigation or proceeding whatsoever (whether or not such
Purchaser Indemnified Party is a party thereto) whether threatened or commenced based upon any such
untrue statement or omission, or any such alleged untrue statement or omission as such expenses are
incurred, it being understood and agreed that the only such information furnished by any Purchaser
consists of the following information in the Preliminary and Final Offering Circular furnished on
behalf of each Purchaser: under the caption “Plan of Distribution” paragraphs 3, 10 and 11;
provided, however, that the Purchasers shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Company’s failure to perform its obligations under
Section 5(a) of this Agreement.
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b)
above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement includes (i) an
unconditional release of such indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as to or an admission of fault,
culpability or failure to act by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Purchasers on the other from the offering of the Offered Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Guarantors on the one hand and the Purchasers on the
other in connection with the statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The
-18-
relative benefits
received by the Company and the Guarantors on the one hand and the Purchasers on the
other shall be deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts and commissions
received by the Purchasers from the Company under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantors or the Purchasers and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered Securities
purchased by it were resold exceeds the amount of any damages which such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. The Purchasers’ obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint. The Company, the Guarantors and
the Purchasers agree that it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation (even if the Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 8(d).
9. Default of Purchasers. If any Purchaser or Purchasers default in their obligations to
purchase Offered Securities hereunder and the aggregate principal amount of Offered Securities that
such defaulting Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of the
total principal amount of Offered Securities, Credit Suisse may make arrangements satisfactory to
the Company for the purchase of such Offered Securities by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date, the non-defaulting Purchasers
shall be obligated severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered Securities with
respect to which such default or defaults occur exceeds 10% of the total principal amount of
Offered Securities and arrangements satisfactory to Credit Suisse and the Company for the purchase
of such Offered Securities by other persons are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting Purchaser or the
Company, except as provided in Section 10. As used in this Agreement, the term “Purchaser” includes
any person substituted for a Purchaser under this Section. Nothing herein will relieve a defaulting
Purchaser from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company, the Guarantors or
their respective officers and of the several Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Purchaser, the Company, the Guarantors or any of
their respective representatives, officers or directors or any controlling person, and will survive
delivery of and payment for the Offered Securities. If this Agreement is terminated pursuant to
Section 9 or if for any reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Company and the Guarantors shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the Company, the
Guarantors and the Purchasers pursuant to Section 8 shall remain in effect. If the purchase of the
Offered Securities by the Purchasers is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 9 or the occurrence of any event specified in
clause (iii), (iv), (vi), (vii) or (viii) of Section 7(b), the Company and the Guarantors will
reimburse the Purchasers for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent to the Purchasers
will be mailed, delivered or telegraphed and confirmed to the Purchasers c/o Credit Suisse
Securities (USA)
-19-
LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: LCD-IBD,
or, if sent to the
Company or the Guarantors, will be mailed, delivered or telegraphed and confirmed to Travelport
Limited, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000), Attention: Xxxx X.
Xxxx, Esq.; provided, however, that any notice to a Purchaser pursuant to Section 8 will be mailed,
delivered or telegraphed and confirmed to such Purchaser.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the persons referred to in Section 8, and no other
person will have any right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second and third sentences
of Section 5(b) hereof against the Company as if such holders were parties thereto.
13. Representation of Purchasers. You will act for the several Purchasers in connection with
this purchase, and any action under this Agreement taken by you will be binding upon all the
Purchasers.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
15. Absence of Fiduciary Relationship. The Company and the Guarantors acknowledge and agree
that:
(a) No Other Relationship. The Purchasers have been retained solely to act as initial
purchasers in connection with the initial purchase, offering and resale of the Offered Securities
and that no fiduciary, advisory or agency relationship between the Company or the Guarantors and
the Purchasers has been created in respect of any of the transactions contemplated by this
Agreement or the Preliminary or Final Offering Circular, irrespective of whether the Purchasers
have advised or are advising the Company or the Guarantors on other matters;
(b) Arm’s-Length Negotiations. The purchase price of the Offered Securities set forth in
this Agreement was established by the Company and the Guarantors following discussions and
arm’s-length negotiations with Credit Suisse and the Company and the Guarantors are capable of
evaluating and understanding and understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company has and the Guarantors have been advised
that the Purchasers and their affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company or the Guarantors and that Credit Suisse
has no obligation to disclose such interests and transactions to Company or the Guarantors by
virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. The Company and the Guarantors waive, to the fullest extent permitted by law,
any claims they may have against the Purchasers for breach of fiduciary duty or alleged breach of
fiduciary duty and agree that the Purchasers shall have no liability (whether direct or indirect)
to the Company or the Guarantors in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company or the Guarantors.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
17. Selling Agents. The Purchasers hereby designate Credit Suisse Securities (Europe)
Limited (“CS Europe”) and UBS Limited (together with CS Europe, the “Selling Agents”) as selling
agents solely for offers or sales of the Offered Securities outside of the United States to
non-U.S. persons in accordance
-20-
with Regulation S. Terms used in this Section 17 that are defined in Regulation S have the
meanings given to them by Regulation S.
The Company and the Guarantors hereby submit to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby. The Company
and the Guarantors irrevocably and unconditionally waive any objection to the laying of venue of
any suit or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York
and irrevocably and unconditionally waive and agree not to plead or claim in any such court that
any such suit or proceeding in any such court has been brought in an inconvenient forum.
-21-
If the foregoing is in accordance with the Purchasers’ understanding of our agreement, kindly
sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement
between the Company, the Guarantors and the several Purchasers in accordance with its terms.
| Very truly yours, TRAVELPORT LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Authorized Person | |||
[Signature Page to Purchase Agreement]
TRAVELPORT INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
TRAVELPORT LIMITED |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Assistant Secretary | |||
[Signature Page to Purchase Agreement]
| TDS INVESTOR (LUXEMBOURG), S.A.R.L. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx
|
|||||
| Title: Manager | ||||||
[Signature Page to Purchase Agreement]
| WALTONVILLE LIMITED | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx
|
|||||
| Title: Director | ||||||
[Signature Page to Purchase Agreement]
| GALILEO TECHNOLOGIES, LLC | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx
|
|||||
| Title: Senior Vice President and Assistant Secretary | ||||||
[Signature Page to Purchase Agreement]
| GTA NORTH AMERICA, INC. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx
|
|||||
| Title: Senior Vice President and Secretary | ||||||
[Signature Page to Purchase Agreement]
| XXXXXXXXXXXXX.XXX (USA) LIMITED | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx
|
|||||
| Title: Senior Vice President and Secretary | ||||||
[Signature Page to Purchase Agreement]
| OWW2, LLC | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx
|
|||||
| Title: Senior Vice President and Secretary | ||||||
[Signature Page to Purchase Agreement]
| TRAVEL INDUSTRIES, INC. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx
|
|||||
| Title: Senior Vice President and Secretary | ||||||
[Signature Page to Purchase Agreement]
| TRAVELPORT, LP, | ||||||
| By: | TRAVELPORT HOLDINGS, LLC, as General Partner |
|||||
| By: | /s/ Xxxxxxxx X. Xxxx
|
|||||
| Title: Senior Vice President and Secretary | ||||||
[Signature Page to Purchase Agreement]
| TRAVELPORT HOLDINGS, INC. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx
|
|||||
| Title: Senior Vice President and Secretary | ||||||
[Signature Page to Purchase Agreement]
| TRAVELPORT HOLDINGS, LLC | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx
|
|||||
| Title: Senior Vice President and Secretary | ||||||
[Signature Page to Purchase Agreement]
TRAVELPORT INTERNATIONAL SERVICES, INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| TRAVELPORT OPERATIONS, INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WORLDSPAN LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WORLDSPAN BBN HOLDINGS, LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WORLDSPAN DIGITAL HOLDINGS, LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WORLDSPAN IJET HOLDINGS, LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WORLDSPAN OPEN TABLE HOLDINGS, LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WORLDSPAN S.A. HOLDINGS II, L.L.C |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WORLDSPAN SOUTH AMERICAN HOLDINGS LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WORLDSPAN STOREMAKER HOLDINGS, LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WORLDSPAN TECHNOLOGIES INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WORLDSPAN VIATOR HOLDINGS, LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WORLDSPAN XOL LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
| WS FINANCING CORP. |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Purchase Agreement]
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
is hereby confirmed and accepted
as of the date first above written.
| Credit Suisse Securities (USA) LLC |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Managing Director | |||
Acting on behalf of itself
and as the Representative
of the several Purchasers
and as the Representative
of the several Purchasers
[Signature Page to Purchase Agreement]
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
is hereby confirmed and accepted
as of the date first above written.
| UBS SECURITIES LLC |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxxxxxx Xxxxx-Xxxxx | |||
| Name: | Xxxxxxxxx Xxxxx-Xxxxx | |||
| Title: | Managing Director | |||
[Signature Page to Purchase Agreement]
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
is hereby confirmed and accepted
as of the date first above written.
| Credit Suisse Securities (Europe) Limited, as Selling Agent |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
[Signature Page to Purchase Agreement]
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
is hereby confirmed and accepted
as of the date first above written.
| UBS LIMITED, as Selling Agent |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Executive Director | |||
[Signature Page to Purchase Agreement]
SCHEDULE A
| Principal Amount of | ||||
| Manager | Offered Securities | |||
Credit Suisse Securities (USA) LLC |
$ | 200,000,000 | ||
UBS Securities LLC |
$ | 50,000,000 | ||
Total |
$ | 250,000,000 | ||
SCHEDULE B
Issuer Free Writing Communications (included in the General Disclosure Package)
1. Final term sheet, dated August 12, 2010, substantially in the form of Exhibit B-1
attached hereto.
Exhibit B-1
Travelport LLC
Travelport Inc.
Travelport Inc.
9.000% Senior Notes due 2016
This term sheet to the preliminary offering circular dated August 12, 2010, should be read together
with the preliminary offering circular before making a decision in connection with an investment in
the notes. The information in this term sheet supersedes the information in the preliminary
offering circular to the extent that it is inconsistent therewith. Terms used but not defined
herein have the meaning ascribed to them in the preliminary offering circular.
Pricing Term Sheet
| Issuer: | Travelport LLC | |||||
| Travelport Inc. | ||||||
| Security Description: | Senior Notes | |||||
| Face: | $250,000,000 | |||||
| Gross Proceeds: | $250,000,000 | |||||
| Coupon: | 9.000% | |||||
| Maturity: | Xxxxx 0, 0000 | |||||
| Xxxxxxxx Price: | 100.000% | |||||
| Yield to Maturity: | 9.000% | |||||
| Spread to Benchmark: | 735 basis points | |||||
| Benchmark: | 2.625% UST due 2/29/2016 | |||||
| Interest Payment Dates: | March 1 and September 1 | |||||
| Commencing: | March 1, 2011 | |||||
| Optional Redemption: | Callable, on or after the following dates, and at the following prices: | |||||
| Date | Price | |||||
| September 1, 2013 | 104.500% | |||||
| September 1, 2014 | 102.250% | |||||
| September 1, 2015 | 100.000% | |||||
| Make-Whole: | Callable prior to September 1, 2013 at a make whole call of T+50 Basis Points plus accrued and unpaid interest | |||||
| Equity Clawback: | Redeem up to 35% at 109.000% on or prior to September 1, 2013 | |||||
| Trade Date: | August 12, 2010 | |||||
| Settlement Date: | August 18, 2010 (T+4) | |||||
| CUSIP / ISIN: | 144A: 89421J AA0 / US89421JAA07 | |||||
| RegS: U17282 AA9 / USU17282AA95 | ||||||
| Minimum Allocation: | $2,000 | |||||
| Increments: | $1,000 | |||||
| Book Runners: | Credit Suisse Securities (USA) LLC | |||||
| UBS Securities LLC | ||||||
SCHEDULE C
Subsidiary Guarantors
Galileo Technologies, LLC
GTA North America, Inc.
XxxxxxxXxxxxx.xxx (USA) Limited
OWW2, LLC
Travel Industries, Inc.
Travelport, LP
Travelport Holdings, Inc.
Travelport Holdings, LLC
Travelport International Services, Inc.
Travelport Operations, Inc.
Worldspan LLC
Worldspan BBN Holdings, LLC
Worldspan Digital Holdings, LLC
Worldspan iJet Holdings, LLC
Worldspan Open Table Holdings, LLC
Worldspan S.A. Holdings II, L.L.C
Worldspan South American Holdings LLC
Worldspan Storemaker Holdings, LLC
Worldspan Technologies Inc.
Worldspan Viator Holdings, LLC
Worldspan XOL LLC
WS Financing Corp.
SCHEDULE D
All Subsidiaries
| Entity Name | Jurisdiction of Incorporation | |
4Oceans Limited (in liquidation)
|
England and Wales | |
Bastion Surety Limited
|
England and Wales | |
Castlenau Limited
|
Ireland | |
Castlenau Nominees Limited
|
Ireland | |
Cendant Hellas EPE
|
Greece | |
Coelis S.A.S.
|
France | |
Columbus Technology Developments Limited
|
Jersey | |
Covia Canada Partnership Corp.
|
Canada | |
Donvand Limited
|
England and Wales | |
Ebookers (India) Private Limited
|
India | |
eNett International (UK) Ltd.*
|
England and Wales | |
eNett International (Jersey) Limited*
|
Jersey | |
eNett International (Netherlands) BV*
|
Netherlands | |
eNett International (Netherlands) BV (UK Branch)*
|
England & Wales | |
eNett International (Netherlands) BV (US Branch)*
|
Delaware US | |
eNett International Pty Ltd*
|
Australia | |
eNett International (NZ) Ltd*
|
New Zealand | |
Galileo Afrique Centrale Sarl
|
Cameroon | |
Galileo Asia, LLC
|
Delaware, US | |
Galileo Belgium S.A.
|
Belgium | |
Galileo Central West Africa (Senegal) SARL
|
Senegal | |
Galileo Central West Africa (Ivory Coast) SARL
|
Ivory Coast | |
Galileo Denmark A/S
|
Denmark | |
Galileo Deutschland GmbH
|
Germany | |
Galileo España S.A.
|
Spain | |
Galileo France S.a.r.l.
|
France | |
Galileo Hungary Kft
|
Hungary | |
Galileo International BV
|
Netherlands | |
Travelport International Services, Inc.
|
Delaware, US | |
Galileo International Technology, LLC
|
Delaware, US | |
Galileo Italia Srl
|
Italy | |
Galileo Latin America, L.L.C.
|
Delaware, US | |
Galileo Malaysia Limited
|
Delaware, US | |
Galileo Malaysia LLC
|
Hong Kong | |
Galileo Nederland II BV
|
Netherlands | |
Galileo Nordiska Aktiebolag
|
Sweden | |
Galileo Portugal Limited
|
England and Wales |
| * | Not wholly-owned |
| Entity Name | Jurisdiction of Incorporation | |
Galileo Switzerland AG
|
Switzerland | |
Galileo Technologies, LLC
|
Delaware, US | |
Gate Pacific Limited
|
Mauritius | |
GI Worldwide Holdings C.V.
|
Netherlands | |
GIW Holdings C.V.
|
Netherlands | |
GTA — Reisen GmbH
|
Germany | |
GTA (HK) Ltd.
|
Shanghai, China | |
GTA (Hong Kong) Limited
|
Hong Kong | |
GTA (Hong Kong) Online Sales Limited
|
Hong Kong | |
GTA Australasia Pty Limited
|
Australia | |
GTA Gullivers Travel Associates GmbH
|
Austria | |
GTA North America, Inc.
|
Delaware, US | |
XxxXxxxxx.xxx Ltd
|
England and Wales | |
Gullivers Associates (Singapore) Pte Ltd
|
Singapore | |
Gullivers (Beijing) Commercial Consulting Services Limited
|
China | |
Gullivers Jersey 1 Limited
|
Jersey Channel Islands | |
Gullivers Jersey 2 Limited
|
Jersey Channel Islands | |
Gullivers Jersey 3 Limited
|
Jersey Channel Islands | |
Gullivers Luxembourg S.a.r.l
|
Luxembourg | |
Gullivers Services Limited
|
England and Wales | |
Gulliver’s Travel Agency Co. Ltd
|
Japan | |
Gullivers Travel Agency Company Limited — England branch
of Gullivers Travel Agency Co. Ltd.
|
England and Wales | |
Gullivers Travel Associates (China) Ltd
|
China | |
Gullivers Travel Associates (France) S.A.S.
|
France | |
Gullivers Travel Associates (Hong Kong) Limited
|
Hong Kong | |
Gullivers Travel Associates (Investments) Ltd
|
UK | |
Gullivers Travel Associates (Middle East) F.Z.L.L.C.
|
United Arab Emirates | |
Gullivers Travel Associates (New Zealand) Limited
|
New Zealand | |
Gullivers Travel Associates (Taiwan) Limited
|
China | |
Gullivers Travel Associates (Thailand) Ltd
|
Thailand | |
Gullivers Travel Associates (Korea) Limited
|
Korea | |
Gullivers Travel Associates Limited
|
England and Wales | |
Gullivers Travel Associates SA
|
Spain | |
IGT Solutions Private Limited*
|
India | |
Jogwin Warenhandelsgesellschaft Ogellshaft MbH
|
Austria | |
Martillo Limited
|
Ireland | |
Massaader Unlimited
|
Isle of Man | |
Xxxxxxxxxx.xxx
|
Ireland | |
Octopus Travel (Middle East) F.Z. L.L.C.
|
United Arab Emirates |
| * | Not wholly-owned |
| Entity Name | Jurisdiction of Incorporation | |
Octopus Travel (Thailand) Limited
|
Thailand | |
Octopus Travel (Espana), S.A.
|
Spain | |
Xxxxxxxxxxxxx.xxx Ltd
|
England and Wales | |
Octopustravel Group Limited
|
England and Wales | |
Octopustravel Italia S.r.l.
|
Italy | |
Octopustravel Japan Co. Ltd
|
Japan | |
Xxxxxxxxxxxxx.xxx (Australia) Pty Ltd
|
New South Wales, Australia | |
Xxxxxxxxxxxxx.xxx (Hong Kong) Ltd
|
Hong Kong | |
Xxxxxxxxxxxxx.xxx (Israel) Ltd
|
Israel | |
Xxxxxxxxxxxxx.xxx (USA) Limited
|
Delaware, US | |
OWW2, LLC
|
Delaware, US | |
Quantitude United Kingdom Limited
|
England and Wales | |
PSP Corporation Pty Ltd*
|
Australia | |
PSP-eNett Pty Ltd*
|
Australia | |
RBA Software Limited
|
England and Wales | |
Sia Galileo Baltija
|
Latvia | |
Southern Cross Distribution Services (NZ) Limited
|
New Zealand | |
Southern Cross Distribution Systems Pty Limited
|
New South Wales, Australia | |
Sprice Pte Ltd
|
Singapore | |
STE Gullivers Travel Agency (branch office France)
|
France | |
TDS Investor (Luxembourg) S.a.r.l.
|
Luxembourg | |
Travelport Argentina S.R.L.
|
Argentina | |
Travel Services Fees Pty Ltd*
|
Australia | |
Travelport (Bermuda) Ltd.
|
Bermuda | |
Travelport Canada Distribution Systems, Inc.
|
Ontario, Canada | |
Travelport (Cayman) Ltd.
|
Cayman Islands | |
Travelport Finance Limited
|
United Kingdom | |
Travelport Global Distribution System B.V.
|
Netherlands | |
Travelport Holdings, Inc.
|
Delaware, US | |
Travelport Inc.
|
Delaware, US | |
Travelport International Limited
|
England and Wales | |
Travelport Investments Limited
|
England and Wales | |
Travelport Investor (Luxembourg) Partnership S.E.C.S.
|
Luxembourg | |
Travelport Investor (Luxembourg) Partnership S.E.C.S.
Schaffhausen Branch
|
Switzerland | |
Travelport Investor (Luxembourg) S.a.r.l.
|
Luxembourg | |
Travelport (Luxembourg) S.a.r.l.
|
Luxembourg | |
Travelport LLC
|
Delaware, US | |
Travelport, LP
|
Delaware, US | |
Travelport Mexico S.A. de C.V.
|
Mexico |
| * | Not wholly-owned |
| Entity Name | Jurisdiction of Incorporation | |
Travelport Operations, Inc.
|
Delaware, US | |
Travelport Peru S.R.L.
|
Peru | |
Travelport Poland Sp z.o.o
|
Poland | |
Travelport Procurement Limited
|
United Kingdom | |
Travelport Romania Services S.R.L.
|
Romania | |
Travelport Saudi Arabia Limited Company
|
Saudi Arabia | |
Travelport Services Limited
|
England and Wales | |
Travelport Southern Africa (Proprietary) Limited
|
Southern Africa | |
Travelport Taiwan Co., Limited
|
Taiwan | |
Travelport Travel Germany GmbH & Co KG
|
Germany | |
Travelport Travel Germany Verwaltungs GmbH
|
Germany | |
Travelport United Kingdom Limited
|
United Kingdom | |
Travelport Venezuela C.V.
|
Venezuela | |
The Galileo Company
|
England and Wales | |
Timas Limited (t/a Galileo Ireland)
|
Ireland | |
Travel Industries, Inc.
|
Delaware, US | |
Travelwire AS
|
Norway | |
Travelwire Aps
|
Denmark | |
Waltonville Limited
|
Gibraltar | |
Worldspan Technologies Inc.
|
Delaware, US | |
WS Holdings, LLC
|
Delaware, US | |
Worldspan, LLC
|
Delaware, US | |
WS Financing Corp.
|
Delaware, US | |
Worldspan Hungary Kft
|
Hungary | |
Worldspan Dutch Holdings B.V.
|
The Netherlands | |
Worldspan Greece Global Travel Information Services
|
Greece | |
Worldspan Services Singapore Pte. Ltd.
|
Singapore | |
Worldspan S.A. Holdings II, LLC
|
Georgia, US | |
Worldspan iJet Holdings LLC
|
Delaware, US | |
Worldspan Open Table Holdings LLC, Inc.
|
Georgia, US | |
Worldspan XOL LLC
|
Georgia, US | |
Worldspan Viator Holdings, LLC
|
Delaware, US | |
Worldspan BBN Holdings, LLC
|
California, US | |
Worldspan South American Holdings LLC (WASAH)
|
Georgia, US | |
Worldspan Services Costa Rica, SRL
|
Costa Rica | |
Worldspan Services Chile Limitada
|
Chile | |
Worldspan Digital Holdings, LLC
|
Delaware, US | |
Worldspan Services Hong Kong Limited
|
Hong Kong | |
Worldspan StoreMaker Holdings, LLC
|
Delaware, US |
