EXCHANGE AGREEMENT
Exhibit 99.2
EXECUTION COPY
This EXCHANGE AGREEMENT is dated November 4, 2009, by and among Orbitz Worldwide, Inc., a
Delaware corporation (“Orbitz”), and PAR Investment Partners, L.P., a Delaware limited partnership
(“PAR”).
NOW, THEREFORE, the parties hereto agree as follows:
1. Exchange of Debt. Subject to the satisfaction or waiver of the closing conditions
set forth in paragraph 7 herein, PAR will exchange $49.68 million aggregate principal amount of
term loans (the “Debt”) outstanding under that certain credit agreement dated as of July 25, 2007,
as amended, among Orbitz and the lenders, letter of credit issuers and agents party thereto held by
PAR for the aggregate number of shares of Orbitz’s common stock determined by dividing 91% of the
principal amount of the Debt to be exchanged by $5.54 per share, for an aggregate of 8,160,433
shares (the “Debt Shares”). The exchange of the Debt for the shares on the terms set forth herein
is referred to herein as the “Debt Exchange”.
2. Closing. The closing of the Debt Exchange will take place at 10:00 a.m. (New York
City time) on the first business day after the conditions to closing set forth in paragraph 7 have
been satisfied or waived and simultaneously with the closing of the Share Purchase, at which time
PAR will assign the Debt to Orbitz pursuant to an assignment and assumption agreement substantially
in the form of Exhibit A hereto, and Orbitz will deliver to PAR the Debt Shares.
3. Voting. PAR agrees to vote or cause to be voted all shares of Orbitz common stock
beneficially owned by PAR and its affiliates (including funds managed by PAR or any of its
affiliates) in favor of approval of (i) the issuance of the Debt Shares and (ii) the issuance and
sale of Orbitz common stock to Travelport Limited, a Bermuda company (“Travelport”), and/or one of
its controlled affiliates, pursuant to the terms of that certain Stock Purchase Agreement dated as
of the date hereof between Orbitz and Travelport (the “Share Purchase”), as such approval is
required by New York Stock Exchange rules subject to complying with the proxy rules under
Securities Exchange Act of 1934, as amended (the “Exchange Act”).
4. Representations. In connection with the Debt Exchange, Orbitz and PAR hereby
represent, warrant and acknowledge as follows:
(a) PAR acknowledges that the transactions contemplated hereby are intended to be exempt from
registration by virtue of Section 4(2) of the Securities Act of 1933, as amended (the “Securities
Act”), and the Debt Shares will be “restricted securities” within the meaning of Rule 144 under the
Securities Act and will bear appropriate legends reflecting such restricted status. PAR knows of
no reason why such exemption is not available.
(b) PAR represents and warrants to Orbitz that:
(i) PAR is an “accredited investor” as defined in Rule 501(a) of Regulation D under the
Securities Act.
(ii) PAR has had such opportunity as it has deemed adequate to obtain from representatives of
Orbitz such information as is necessary to permit PAR to evaluate the merits and risks of the
transactions contemplated hereby.
(iii) PAR has sufficient experience in business, financial and investment matters to be able
to evaluate the risks involved in the transaction contemplated hereby and to make an informed
investment decision with respect thereto.
(iv) PAR is the sole legal and beneficial owner of the Debt, and the Debt being transferred
hereunder is free and clear of any liens, charges or encumbrances.
(v) PAR is duly organized and validly existing under the laws of its jurisdiction of
organization; it has all of the power and authority necessary to enter into this agreement and to
consummate the transactions contemplated hereby; it has taken all action as may be necessary to
authorize the execution and delivery of this agreement and the consummation of the transactions
contemplated hereby; this agreement constitutes a valid and binding agreement of PAR enforceable in
accordance with its terms; neither the execution and delivery hereof by PAR nor consummation by PAR
of the transaction contemplated hereby will violate or contravene any applicable requirements of
law or any of its organizational documents or material agreements; there is no pending or
threatened action, suit or proceeding as of the date hereof before any court or other governmental
authority affecting this agreement or the transactions contemplated hereby and no consent, approval
or authorization of any person or governmental authority is required to be made or obtained by PAR
in connection with the execution, delivery or performance of this agreement or the consummation of
the transactions contemplated hereby except for the expiration or termination of any applicable
waiting period under the Xxxx-Xxxxx Xxxxxx Act; PAR is acquiring the Debt Shares for investment
purposes only, for its own account, and not as nominee or agent for any other person or entity, and
not with a view to, or for resale in connection with, any distribution thereof within the meaning
of the Securities Act.
(c) Orbitz represents and warrants to PAR that:
(i) The Debt Shares have been duly authorized and, when issued and delivered by Orbitz to PAR
pursuant to this agreement, against payment of the consideration set forth herein, will be validly
issued, fully paid and non-assessable.
(ii) Orbitz is duly incorporated and validly existing under the laws of its jurisdiction of
incorporation; it has all of the power and authority necessary to enter into this agreement and to
consummate the transactions contemplated hereby; it has taken all action as may be necessary to
authorize the execution and delivery of this agreement and the consummation of the transactions
contemplated hereby, except for (i) the making of certain filings with Securities and Exchange
Commission and (ii) obtaining the shareholder approval required by the New York Stock Exchange
rules; this agreement
constitutes a valid and binding agreement of Orbitz enforceable in accordance with its terms;
neither the execution and delivery hereof by Orbitz nor consummation by Orbitz of the transaction
contemplated hereby will violate or contravene any applicable requirements of law or any of its
organizational documents or material agreements; there is no pending or threatened action, suit or
proceeding as of the date hereof before any court or other governmental authority affecting this
agreement or the transactions contemplated hereby and no consent, approval or authorization of any
person or governmental authority is required to be made or obtained by Orbitz in connection with
the execution, delivery or performance of this agreement or the consummation of the transactions
contemplated hereby.
(iii) As of the date hereof, Orbitz has obtained consent from Travelport to the Debt Exchange
and Travelport has agreed to vote all shares of Orbitz common stock beneficially owned by it in
favor of approval of the issuance of shares pursuant to the Debt Exchange and the Share Purchase as
required by New York Stock Exchange rules subject to complying with the proxy rules under Exchange
Act. If (a) the special committee of the board of directors of Orbitz changes or withdraws it
recommendation that shareholders vote in favor of the transactions contemplated by the Debt
Exchange and/or Share Purchase or (b) Orbitz materially breaches its obligations under the Share
Purchase Agreement, Travelport’s obligations to vote in favor of the transactions terminate.
5. Taxes.
(a) Orbitz and PAR agree to report the exchange of debt for stock as a “recapitalization”
within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended (the
“Code”). PAR and Orbitz intend that the exchange of debt for stock will constitute a “plan of
reorganization” within the meaning of Treas. Reg. §1.368-2(g) and 1.368-3, which plan of
reorganization the parties adopt by executing this Agreement. None of the parties hereto will take
any action or fail to take any action, except as specifically contemplated by this Agreement, that
reasonably would be expected to cause the exchange of debt for stock to fail to qualify as a
“recapitalization” within the meaning of Section 368(a)(1)(E) of the Code.
(b) Pursuant to the exchange of debt for stock, PAR and Orbitz agree that the stock so
exchanged will be allocated to the original principal amount of such debt, as determined for U.S.
federal income tax purposes. None of the parties hereto will take any action or fail to take any
action, except as specifically required by applicable law, that is inconsistent with the foregoing
allocation.
6. Orbitz Board. PAR, Travelport and Orbitz have entered into that certain
Shareholders’ Agreement dated as of the date hereof, which provides for certain matters with
respect to Orbitz’s board of directors and shall become effective as of the closing of the Debt
Exchange and the Share Purchase.
7. Special Committee Recommendation. The special committee of the board of directors
of Orbitz, subject to its fiduciary duties, will recommend that the
shareholders of Orbitz vote in favor of the Debt Exchange and the Share Purchase.
8. Conditions to Closing; Termination.
(a) The obligations of Orbitz and PAR to consummate the Debt Exchange shall be subject to (i)
the receipt of shareholder approval required under the New York Stock Exchange rules, (ii) the
absence of any provision of any applicable law that would prohibit the consummation of the closing,
(iii) the simultaneous closing of the Share Purchase and (iv) the expiration or termination of any
applicable waiting period under the Xxxx-Xxxxx Xxxxxx Act relating to the transactions contemplated
hereby. The parties will use reasonable best efforts to consummate the transactions contemplated
hereby, including obtaining all required consents and approvals
(b) This agreement may be terminated, which will automatically revoke Travelport’s consent to
the transactions contemplated by the Debt Exchange and Share Purchase, at any time prior to the
closing by (i) mutual written consent of the parties hereto or (ii) by either party if the closing
has not occurred prior to June 2, 2010.
9. Regulatory Matters. PAR agrees to make all filings and notifications and take such
actions as are necessary to ensure compliance with the Xxxx-Xxxxx Xxxxxx Act.
10. Entire Agreement. This agreement, together with the Exchange Agreement and the
Shareholders’ Agreement, represents the entire understanding and agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior agreements and
understandings, both oral and written, between the parties hereto with respect to the subject
matter of this agreement, except for that certain Confidentiality and Non-Disclosure Agreement
between PAR Capital Management, Inc. and Orbitz dated as of September 29, 2009. The parties may
amend or modify this agreement, in such manner as may be agreed upon, only by a written instrument
executed by the parties hereto.
11. Specific Performance. The parties hereto agree that irreparable damage would
occur if any provision of this agreement were not performed in accordance with the terms hereof and
that the parties shall be entitled to an injunction or injunctions to prevent breaches of this
agreement or to enforce specifically the performance of the terms and provisions hereof in addition
to any other remedy to which they are entitled at law or in equity.
12. Expenses. Each party hereto shall pay its own expenses in connection with this
agreement and the transactions contemplated hereby.
13. No Third-Party Reliance. No provision of this agreement is intended to confer any
rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the
parties hereto and their respective successors and assigns.
14. Disclaimer. Orbitz makes no representations or warranties except as expressly set
forth in this agreement.
15. Governing Law. This agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of laws rules of such
state.
16. Severability. The invalidity or unenforceability of any provision of this
agreement shall not affect the validity or enforceability of any other provision of this agreement.
17. Counterparts. This agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall be one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed by their
respective authorized officers as of the date first above written.
| ORBITZ WORLDWIDE, INC. |
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| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Senior Vice President, Chief Financial Officer | |||
| PAR INVESTMENT PARTNERS, L.P. BY: PAR Group, L.P. as its general partner BY: PAR Capital Management, Inc. as its general partner |
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| By: | /s/ Xxxx XxXxxxx | |||
| Name: | Xxxx XxXxxxx | |||
| Title: | General Counsel | |||
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between the Assignor (as defined below)
and the Assignee (as defined below). Capitalized terms used in this Assignment and Assumption and
not otherwise defined herein have the meanings specified in the Credit Agreement dated as of July
25, 2007 (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Orbitz Worldwide, Inc. (the “Borrower”), UBS AG, Stamford Branch, as
Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent and
an L/C Issuer, UBS Loan Finance LLC, as Swing Line Lender, each lender from time to time party
thereto (the “Lenders”), Credit Suisse Securities (USA) LLC, as Syndication Agent and
Xxxxxx Brothers Inc., as Documentation Agent, receipt of a copy of which is hereby acknowledged by
the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby
agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as
if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and
the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below, (i) all of the Assignor’s rights
and obligations in its capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of the Assignor under the
facility identified below (including participations in any Letters of Credit or Swing Line Loans
included in such facility) and (ii) to the extent permitted to be assigned under applicable law,
all claims, suits, causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in connection with the
Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the foregoing, including,
but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
| 1. | Assignor (the “Assignor”): PAR Investment Partners, L.P. | |
| 2. | Assignee (the “Assignee”): Orbitz Worldwide, Inc. | |
| 3. | Borrower: Orbitz Worldwide, Inc. | |
| 4. | Administrative Agent: UBS AG, Stamford Branch |
| 5. | Assigned Interest: |
| Aggregate Principal | ||||||||||||
| Amount of Term | ||||||||||||
| Aggregate Principal | Loans Being Assigned | Percentage | ||||||||||
| Amount of Term | (the “Assigned | Assigned of | ||||||||||
| Facility | Loans of all Lenders | Interest”) | Terms Loans1 | |||||||||
Term Loans |
$ | $ | % | |||||||||
Effective Date: (the “Effective Date”)
| 1 | Set forth, to at least 8 decimals, as a percentage of all of the Term Loans of all Lenders. |
The terms set forth in this Assignment and Assumption are hereby agreed to:
| PAR Investment Partners, L.P., as Assignor, BY: PAR Group, L.P. as its general partner BY: PAR Capital Management, Inc. as its general partner |
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| By: | ||||
| Name: | Xxxx XxXxxxx | |||
| Title: | General Counsel | |||
| ORBITZ WORLDWIDE, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Accepted: UBS AG, STAMFORD BRANCH as Administrative Agent, |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Annex I
CREDIT
AGREEMENT2
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement, (ii)
the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, (iii) the financial condition of the Borrower or any of its Subsidiaries or Affiliates
or any other Person obligated in respect of the Credit Agreement or (iv) the performance or
observance by the Borrower or any of its Subsidiaries or Affiliates or any other Person of any of
their obligations under the Credit Agreement.
1.2. Assignee. The Assignee represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby, (ii) it satisfies the
requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in
order to acquire the Assigned Interest. The Assignee acknowledges that the Assigned Interest will
cease to be outstanding for purposes of the Loan Documents upon the Effective Date and that the
Assignee will have no rights as a Lender under the Loan Documents.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments it receives from any Loan Party in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued from and after the
Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a
| 2 | Capitalized terms used in this Assignment and Assumption and not otherwise defined herein have the meanings specified in the Credit Agreement dated as of July 25, 2007 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Orbitz Worldwide, Inc. (the “Borrower”), UBS AG, Stamford Branch, as Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent and an L/C Issuer, UBS Loan Finance LLC, as Swing Line Lender, each lender from time to time party thereto (the “Lenders”), Credit Suisse Securities (USA) LLC, as Syndication Agent and Xxxxxx Brothers Inc., as Documentation Agent. |
signature page of this Assignment and Assumption by facsimile or other electronic transmission
shall be as effective as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be construed in accordance with and governed by
the law of the State of New York.
4. Borrower Purchases of Term Loans. All questions as to the form of documents and
validity and eligibility of any Assigned Interest will be determined by the Administrative Agent,
in consultation with the Borrower and such determination will be final and binding. The
Administrative Agent’s interpretation of the terms and conditions of this Assignment and Assumption
and the documents related thereto, in consultation with the Borrower, will be final and binding.
