WAIVER AGREEMENT AND AMENDMENT TO DEBENTURE
THIS WAIVER AGREEMENT AND AMENDMENT TO DEBENTURE (this "Agreement") dated
as of January 31, 2006 is by and among ONETRAVEL HOLDINGS, INC., a Delaware
corporation (the "Company"), Farequest Holdings, Inc., a Delaware corporation
("Farequest"), OneTravel, Inc., a Texas corporation ("OneTravel"; Company,
Farequest and OneTravel are sometimes referred to herein individually as a
"Credit Party" and collectively, as the "Credit Parties"), and each Purchaser
identified on the signature pages hereto (each, including its successors and
assigns, a "Purchaser" and collectively the "Purchasers"). Capitalized terms
used and not otherwise defined herein that are defined in the Securities
Purchase Agreement, dated October 24, 2005 by and among the Company and the
Purchasers (the "Purchase Agreement") or in any related Transaction Document (as
defined in the Purchase Agreement) shall have the meanings given such terms in
the Purchase Agreement or such Transaction Document, as applicable.
Preliminary Statement:
A. On October 24, 2005, the Company and Purchasers entered into the
Purchase Agreement and the related Transaction Documents.
B. The following Events of Default and related defaults exist and will
exist under Section 8(a) of the Debentures and under Sections 2 and 3 of the
Registration Rights Agreement: (i) the Company's failure to timely file an
initial Registration Statement, and the Company's inability to have a
Registration Statement declared effective by the Commission on or prior to the
240th calendar day after the Closing Date, (ii) the Company's failure to timely
file its Annual Report on Form 10-K for the year ended June 30, 2005 and its
Quarterly Report on Form 10-Q for the quarter ended September 30, 2005 and other
reports required to be filed prior to the date hereof pursuant to the Securities
Act or the Exchange Act, and the Company's inability to timely file its
Quarterly Reports on Form 10-Q for the quarters ended December 31, 2005 and
March 31, 2006, and (iii) the material inaccuracy or breach of certain
representations and warranties of the Company and/or the other Credit Parties in
the Transaction Documents (collectively, the "Existing Defaults").
C. Subject to the terms and conditions set forth herein, each Purchaser
has agreed (i) to waive its available rights and remedies under the Purchase
Agreement, any Transaction Document, any other agreement or at law or in equity
arising as a result of the Existing Defaults (all such rights and remedies, the
"Available Remedies"), (ii) to extend the date by which an initial Registration
Statement must be filed and declared effective, (iii) to waive certain
conditions contained in the Transaction Documents relating to the Company's
right to pay interest in shares of Common Stock in lieu of cash and (iv) to make
certain amendments to the Debentures, and, to the extent necessary the other
Transaction Documents.
D As consideration for entering into this Agreement, in accordance with
and subject to the terms of this Agreement, the Company shall pay to each
Purchaser the amount equal to the redemption premium of the Debentures in the
form of a new convertible, secured debenture.
NOW, THEREFORE, the parties to this Agreement, for adequate and sufficient
consideration, the receipt of which is hereby acknowledged, do hereby agree as
follows:
1. Waivers by Purchasers; Amendment to the Transaction Documents.
(a) The Company hereby acknowledges the current and continuing
existence of the Existing Defaults.
(b) Subject to the terms and provisions of this Agreement, each
Purchaser hereby irrevocably waives the Existing Defaults and waives, and
agrees to permanently forbear from exercising, any Available Remedies it
now has or may in the future have and any rights and remedies that will be
available to such Purchaser as a result of the Existing Defaults.
(c) The Company and each Purchaser amends and restates Section
8(a)(ix) of the Debentures as follows:
"a Registration Statement shall not have been declared effective by the
Commission on or prior to (A) October 31, 2006, unless (I) the Company has
filed all reports required to be filed by it under Rule 144(c)(1) of the
Securities Act as of October 31, 2006, and (II) the Company has paid
liquidated damages to each Purchaser on or prior to November 1, 2006 on
account of the Company's failure to cause the initial Registration
Statement to be declared effective on or before October 31, 2006 in an
amount equal to 1.5% of the aggregate purchase price paid by such
Purchaser pursuant to the Purchase Agreement for any Registrable
Securities other than Warrant Shares then held by such Purchaser (assuming
for such purpose only, that all Debentures have been converted), which
payment shall be deemed by all Purchasers to satisfy the liquidated
damages payment requirement of the Company pursuant to Section 2(b) of the
Registration Rights Agreement with respect to the month of November 2006,
(B) November 30, 2006, unless (I) the Company has filed all reports
required to be filed by it under Rule 144(c)(1) of the Securities Act as
of November 30, 2006, and (II) the Company has paid liquidated damages to
each Purchaser on or prior to December 1, 2006 on account of the Company's
failure to cause the initial Registration Statement to be declared
effective on or before November 30, 2006 in an amount equal to 1.5% of the
aggregate purchase price paid by such Purchaser pursuant to the Purchase
Agreement for any Registrable Securities other than Warrant Shares then
held by such Purchaser (assuming for such purpose only, that all
Debentures have been converted), which payment shall be deemed by all
Purchasers to satisfy the liquidated damages payment requirement of the
Company pursuant to Section 2(b) of the Registration Rights Agreement with
respect to the month of December 2006, or (C) January 2, 2007."
(d) Each Purchaser hereby irrevocably waives the payment of
liquidated damages pursuant to Section 2(b) of the Registration Rights
Agreement that would otherwise accrue and be payable prior to November 1,
2006 on account of (i) the Company's failure to file the initial
Registration Statement on or before the Filing Date and (ii) the Company's
failure to cause the initial Registration Statement to be declared
effective on or before the Effectiveness Date.
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(e) As to the July 1, 2006 Interest Payment Date only, each
Purchaser hereby irrevocably waives the requirements of clause (iii) in
the definition of Equity Conditions contained in the Debenture. Purchasers
do not waive any other condition in the definition of Equity Conditions
other than those set forth in clause (iii) thereof, nor do they waive
clause (iii) in the definition of Equity Conditions as to any other
Interest Payment Dates.
(f) Except to the extent of the waiver and forbearance contained in
this Section 1, each Purchaser reserves all of its rights, remedies,
powers and privileges under the Purchase Agreement, Debentures and
Transaction Documents and otherwise with respect to any Event of Default
other than the Existing Defaults. Notwithstanding anything herein to the
contrary and for purposes of clarification, an Event of Default under
Section 8(a)(iii) of the Debentures held by a Purchaser executing this
Agreement that is caused solely by the acceleration of the full principal
amount of the Debentures held by another holder of the Debentures that is
not a party to this Agreement due to the occurrence of an Existing Default
that has not been waived by such holder is not waived by this Agreement
and accordingly the signatories hereto shall also have the right to
accelerate pursuant to Section 8(a)(iii)) upon such event. Except as
expressly set forth in this Agreement, no waiver, consent, agreement,
amendment, renewal, extension, modification, standstill, release or
understanding of any kind or nature whatsoever shall be binding on
Purchasers unless and until one or more counterparts of a document in
writing specifically affirming the same has been executed by Purchasers.
No failure or delay by Purchasers with respect to exercising any right,
remedy, power or privilege under the Purchase Agreement, the Transaction
Documents or otherwise shall operate as a waiver thereof or any
acquiescence therein.
2. Issuance of Additional Debentures. As consideration for entering into
this Agreement, the Company agrees to pay an amount equal to the redemption
premium of the Debentures by the issuance, on the date hereof, of a debenture to
each Purchaser in a principal amount equal to 25% of the principal amount of the
Debenture now held by such Purchaser, which debenture shall contain the same
terms and conditions as such Debenture as amended hereby (each such debenture,
the "Additional Debenture" and collectively the "Additional Debentures"), except
that such debenture shall not be convertible into shares of common stock of the
Company prior to obtaining Shareholder Approval with respect to such conversion
to the extent the rules and regulations of the American Stock Exchange require
such Shareholder Approval. The Company's obligation to seek Shareholder Approval
with respect to the Additional Debentures shall be as set forth in Section
4.11(d) of the Purchase Agreement. Each Purchaser acknowledges that the issuance
of the Additional Debentures constitutes an Exempt Issuance as defined in the
Purchase Agreement for the Purposes of Section 5(b) of the Debentures.
3. Grant of Security Interest in Connection with the Additional
Debentures. In order to induce the Purchasers to waive and forbear on the terms
and conditions in this Agreement, each Credit Party hereby grants a security
interest in all Collateral (as defined in the Security Agreement) to each
Purchaser to secure the prompt payment, performance and discharge in full
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of all of the Company's obligations under the Additional Debentures on the same
terms and conditions as the Collateral is pledged to the Purchasers under the
Security Agreement to secure the "Obligations" defined therein. Each Credit
Party hereby agrees that the obligations of the Company contained in the
Additional Debentures will form a part of the obligations subject to (i) the
Security Agreement, dated as of October 24, 2005, and (ii) the UCC Financing
Statements listing the Company and Farequest as Debtors, as filed with the
Secretary of State of Delaware on October 19, 2005, and the UCC Financing
Statement listing OneTravel as Debtor, as filed with the Secretary of State of
Texas on October 19, 2005 and be deemed to be included in the definition of
"Obligations" thereunder. Furthermore, each of Farequest and OneTravel agrees
that the Company's obligations, liabilities and indebtedness under the
Additional Debentures shall constitute "Obligations" under and as defined in the
Subsidiary Guarantee, subject to all guarantee obligations of such Credit
Parties thereunder.
4. Additional Amendments to the Transaction Documents.
(a) The Company and each Purchaser amends and restates the
definition of "Optional Redemption Amount" contained in the Debentures as
follows:
"Optional Redemption Amount" shall mean the sum of (i) 100% of the
principal amount of the Debenture then outstanding, (ii) accrued but
unpaid interest and (iii) all liquidated damages and other amounts due in
respect of the Debenture."
(b) The Company and each Purchaser amends and restates the
definition of "Mandatory Default Amount" contained in the Debentures as
follows:
"Mandatory Default Amount" shall equal the sum of (i) the greater of: (A)
100% of the principal amount of this Debenture to be prepaid, plus all
accrued and unpaid interest thereon, or (B) the principal amount of this
Debenture to be prepaid, plus all other accrued and unpaid interest
hereon, divided by the Conversion Price on (x) the date the Mandatory
Default Amount is demanded or otherwise due or (y) the date the Mandatory
Default Amount is paid in full, whichever is less, multiplied by the VWAP
on (x) the date the Mandatory Default Amount is demanded or otherwise due
or (y) the date the Mandatory Default Amount is paid in full, whichever is
greater, and (ii) all other amounts, costs, expenses and liquidated
damages due in respect of this Debenture."
(c) The Company and each Purchaser (i) amends Section 5(b) of the
Debentures by deleting the amount "$1.94" appearing therein and replacing
it with the amount "$2.36", (ii) amends Section 4.13(c) of the Purchase
Agreement by deleting the amount "$1.94" appearing therein and replacing
it with the amount "$2.36" and (iii) amends Section 3(b) of the Warrant by
deleting the amount "$1.94" appearing therein and replacing it with the
amount "$2.36".
(d) The Company and each Purchaser amends and restates the first
sentence of Section 6(b) of the Debentures as follows:
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"Upon notice from the Company of, or the public announcement of, the
occurrence of a Change of Control Transaction or a Fundamental
Transaction, the Holder shall have the right to deliver a notice to the
Company (a "Holder Redemption Notice" and the date such notice is deemed
delivered hereunder, the "Holder Redemption Notice Date") of its
irrevocable election to cause the Company to redeem some or all of the
then outstanding principal amount of this Debenture for an amount, in
cash, equal to (i) 100% of the principal amount of this Debenture then
outstanding, (ii) accrued but unpaid interest and (iii) all liquidated
damages and other amounts due in respect of this Debenture (the "Holder
Redemption" and such amount the "Holder Redemption Amount")."
5. Incorporation of this Agreement. The rights and obligations of each
Purchaser and of the Company with respect to the Additional Debentures and the
shares of Common Stock issuable thereunder (the "Additional Underlying Shares")
shall be identical in all respects to the rights and obligations of the
Purchasers and of the Company with respect to the Debentures, the Warrants and
the Underlying Shares issued and issuable pursuant to the Transaction Documents.
Any rights of a Purchaser or covenants of the Company which are conditional on a
Purchaser holding securities of the Company or which are determined in magnitude
by such Purchaser's purchase of securities pursuant to the Transaction Documents
shall be deemed to include any securities purchased or issuable pursuant to this
Agreement. The Transaction Documents are hereby amended so that the term
"Debentures" includes the Additional Debentures issued hereunder and "Underlying
Shares" includes the Additional Underlying Shares. Additionally, the
Registration Rights Agreement is hereby amended so that the term "Registrable
Securities" includes in the calculation thereof the Additional Underlying
Shares; provided, however, as to the Additional Underlying Shares only, "date
hereof" where used shall be deemed the date hereof.
6. Representations and Warranties of the Credit Parties. Each Credit Party
hereby makes to each Purchaser the following representations and warranties:
(a) Authorization; Enforcement. Each Credit Party has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its
obligations hereunder and thereunder. The execution and delivery of this
Agreement by such Credit Party and the consummation by it of the
transactions contemplated hereby have been duly authorized by all
necessary action on the part of such Credit Party and no further action is
required by such Credit Party, its board of directors or its stockholders
in connection therewith other than in connection with the Required
Approvals. This Agreement has been duly executed by such Credit Party and,
when delivered in accordance with the terms hereof will constitute the
valid and binding obligation of such Credit Party enforceable against such
Credit Party in accordance with its terms except (i) as limited by general
equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
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(b) No Conflicts. The execution, delivery and performance of this
Agreement by such Credit Party and the consummation by such Credit Party
of the transactions contemplated hereby do not and will not: (i) conflict
with or violate any provision of such Credit Party's certificate or
articles of incorporation, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien (except as contemplated by the Security
Documents) upon any of the properties or assets of such Credit Party, or
give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any
material agreement, credit facility, debt or other material instrument
(evidencing Credit Party debt or otherwise) or other material
understanding to which such Credit Party is a party or by which any
property or asset of such Credit Party is bound or affected, or (iii)
subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which such Credit
Party is subject (including federal and state securities laws and
regulations), or by which any property or asset of such Credit Party is
bound or affected; except in the case of each of clauses (ii) and (iii),
such as could not have or reasonably be expected to result in a Material
Adverse Effect.
(c) Issuance of the Additional Debentures. The Additional Debentures
are duly authorized and, upon the execution of this Agreement by a
Purchaser, will be duly and validly issued, fully paid and nonassessable,
free and clear of all Liens imposed by the Company other than restrictions
on transfer provided for in the Transaction Documents. The Additional
Underlying Shares, when issued in accordance with the terms of the
Additional Debentures, will be validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company. The
Company has reserved from its duly authorized capital stock a number of
shares of Common Stock for issuance of the Additional Underlying Shares at
least equal to the Required Minimum on the date hereof.
(d) Equal Consideration. Except as set forth in this Agreement, no
consideration has been offered or paid to any person to amend or consent
to a waiver, modification, forbearance or otherwise of any provision of
any of the Transaction Documents.
(e) Other Events of Default. As of the date of this Agreement, to
the knowledge of the Company, no Event of Default other than the Existing
Defaults exists.
7. Representations and Warranties of the Purchasers. Each Purchaser
hereby, for itself and for no other Purchaser, represents and warrants as of the
date hereof to the Company as follows:
i. Authority. The execution, delivery and performance by such
Purchaser of the transactions contemplated by this Agreement have been
duly authorized by all necessary corporate or similar action on the part
of such Purchaser. This Agreement has been duly executed by such
Purchaser, and when delivered by such Purchaser in accordance with the
terms hereof, will constitute the valid and legally binding obligation of
such Purchaser, enforceable against it in accordance with its terms,
except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally,
(ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by
applicable law.
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ii. Own Account. Such Purchaser understands that the Additional
Debentures are "restricted securities" and have not been registered under
the Securities Act or any applicable state securities law and is acquiring
the Additional Debenture as principal for its own account and not with a
view to or for distributing or reselling such Additional Debentures or any
part thereof in violation of the Securities Act or any applicable state
securities law, has no present intention of distributing any of such
Securities in violation of the Securities Act or any applicable state
securities law and has no arrangement or understanding with any other
persons regarding the distribution of such Additional Debentures (this
representation and warranty not limiting such Purchaser's right to sell
the Additional Underlying Shares pursuant to the Registration Statement or
otherwise in compliance with applicable federal and state securities laws)
in violation of the Securities Act or any applicable state securities law.
Such Purchaser is acquiring the Additional Debentures hereunder in the
ordinary course of its business. Such Purchaser does not have any
agreement or understanding, directly or indirectly, with any Person to
distribute any of the Additional Debentures or Additional Underlying
Shares.
iii. Purchaser Status. Such Purchaser is an "accredited investor" as
defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the
Securities Act. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
iv. General Solicitation. Such Purchaser is not purchasing the
Additional Debentures as a result of any advertisement, article, notice or
other communication regarding the Additional Debentures published in any
newspaper, magazine or similar media or broadcast over television or radio
or presented at any seminar or any other general solicitation or general
advertisement.
v. Affirmation of Prior Representations and Warranties. Such
Purchaser hereby represents and warrants to the Company that its
representations and warranties listed in Section 3.2 of the Purchase
Agreement are true and correct as of the date hereof.
8. Delivery of Opinion. Concurrently herewith, the Company shall deliver
to the Purchasers an opinion of outside counsel regarding this Agreement and the
issuance of the Additional Debentures in form and substance reasonably
acceptable to the Purchasers.
9. Public Disclosure. The Company shall, on or before the 4th Trading Day
following the date hereof, issue a Current Report on Form 8-K, reasonably
acceptable to the Purchasers, disclosing the material terms of the transactions
contemplated hereby, and shall attach this Agreement thereto. The Company shall
consult with the Purchasers in issuing any other press releases with respect to
the transactions contemplated hereby.
10. Purchaser Acknowledgement. Each of the Purchasers hereby agrees and
acknowledges that notwithstanding anything to the contrary in any of the
Transaction Documents, the Company, without limitation and without notice to or
the consent of, the Purchasers, may sell, transfer or otherwise dispose of all
or any portion of the stock or assets of FS SunTours, Inc.
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11. Effect on Transaction Documents. Except as expressly set forth above,
all of the terms and conditions of the Transaction Documents shall continue in
full force and effect after the execution of this Agreement and shall not be in
any way changed, modified or superseded by the terms set forth herein, including
but not limited to, any other obligations the Company may have to the Purchasers
under the Transaction Documents. Notwithstanding the foregoing, this Agreement
shall be deemed for all purposes as an amendment to any Transaction Document as
required to serve the purposes hereof, and in the event of any conflict between
the terms and provisions of the Debentures, the Registration Rights Agreement or
any other Transaction Document, on the one hand, and the terms and provisions of
this Agreement, on the other hand, the terms and provisions of this Agreement
shall prevail.
12. Release of all Claims. THE COMPANY (FOR ITSELF AND ITS AFFILIATES)
HEREBY UNCONDITIONALLY RELEASES AND FOREVER DISCHARGES EACH PURCHASER AND ITS
RESPECTIVE SUCCESSORS, ASSIGNS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES,
AFFILIATES, ACCOUNTANTS, CONSULTANTS, CONTRACTORS, ADVISORS AND ATTORNEYS
(COLLECTIVELY, THE "BENEFITED PARTIES") FROM ALL CLAIMS (AS DEFINED BELOW) FROM
THE BEGINNING OF TIME THROUGH THE DATE HEREOF. AS USED IN THIS AGREEMENT, THE
TERM "CLAIMS" MEANS ANY AND ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF
ACTIONS, COSTS, EXPENSES AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, AT LAW OR
IN EQUITY, WHICH THE COMPANY, OR ANY OF ITS AGENTS, EMPLOYEES OR AFFILIATES MAY
HAVE AS OF THE DATE HEREOF, IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF
CONTRACT, TORT, VIOLATION OF LAW OR OTHERWISE IN CONNECTION WITH ANY OF THE
TRANSACTION AGREEMENTS, INCLUDING ANY CONTRACTING FOR, CHARGING, TAKING,
RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE MAXIMUM RATE ON
INTEREST CHARGEABLE UNDER APPLICABLE LAW AND ANY LOSS, COST OR DAMAGE, OF ANY
KIND OR CHARACTER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR IN ANY WAY
RESULTING FROM THE ACTIONS OR OMISSIONS OF THE BENEFITED PARTIES, INCLUDING ANY
BREACH OF FIDUCIARY DUTY, BREACH OF ANY DUTY OF GOOD FAITH OR FAIR DEALING,
UNDUE INFLUENCE, DURESS, ECONOMIC COERCION, CONFLICT OF INTEREST, NEGLIGENCE,
BAD FAITH, MALPRACTICE, VIOLATIONS OF THE RACKETEER INFLUENCED AND CORRUPT
ORGANIZATIONS ACT, INTENTIONAL OR NEGLIGENT INFLICTION OF MENTAL DISTRESS,
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS, TORTIOUS INTERFERENCE WITH
CORPORATE GOVERNANCE OR PROSPECTIVE BUSINESS ADVANTAGE, BREACH OF CONTRACT,
DECEPTIVE TRADE PRACTICES, LIBEL, SLANDER, CONSPIRACY OR ANY CLAIM FOR
WRONGFULLY ACCELERATING ANY OBLIGATIONS OR WRONGFULLY ATTEMPTING TO FORECLOSE ON
ANY COLLATERAL. THE COMPANY (FOR ITSELF AND ITS AFFILIATES) AGREES THAT NONE OF
THE BENEFITED PARTIES HAS FIDUCIARY OR SIMILAR OBLIGATIONS TO THE COMPANY OR ANY
AGENTS, EMPLOYEES OR AFFILIATES OF THE COMPANY AND THAT THEIR RELATIONSHIPS ARE
STRICTLY THAT OF CREDITOR AND DEBTOR. THIS RELEASE IS ACCEPTED BY PURCHASERS
PURSUANT TO THIS AGREEMENT AND SHALL NOT BE CONSTRUED AS AN ADMISSION OF
LIABILITY BY PURCHASERS OR ANY OTHER BENEFITED PARTY.
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THE COMPANY (FOR ITSELF AND ITS AFFILIATES) ACKNOWLEDGES THAT THE FOREGOING
PROVISIONS ARE INTENDED TO, AND THE TRANSACTION AGREEMENTS CONTAIN PROVISIONS
WHICH, RELEASE PURCHASERS FROM LIABILITY AND/OR INDEMNIFY AND HOLD HARMLESS
PURCHASERS FOR, AMONG OTHER THINGS, THE ORDINARY NEGLIGENCE OF PURCHASERS. THE
COMPANY (FOR ITSELF AND ITS AFFILIATES) AGREES THAT THE RELEASE AND/OR INDEMNITY
PROVISIONS CONTAINED IN THESE DOCUMENTS ARE CAPTIONED TO CLEARLY IDENTIFY THE
RELEASE AND/OR INDEMNITY PROVISIONS AND, THEREFORE, ARE SO CONSPICUOUS THAT THE
COMPANY AND ITS AFFILIATES HAVE FAIR NOTICE OF THE EXISTENCE AND CONTENTS OF
SUCH PROVISIONS.
13. Expenses. The Company agrees to pay to Purchasers upon demand any and
all reasonable out-of-pocket costs or expenses (including, without limitation,
reasonable legal fees and disbursements) incurred or sustained by Purchasers, in
connection with the preparation of this Agreement and related matters.
14. Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the same shall be in writing and signed by the Company and each
Purchaser.
15. Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be delivered as set forth
in the Purchase Agreement.
16. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each Purchaser. The Company may not assign
(except by merger) its rights or obligations hereunder without the prior written
consent of all of the Purchasers of the then-outstanding Securities. Each
Purchaser may assign their respective rights hereunder in the manner and to the
Persons as permitted under the Purchase Agreement.
17. Execution and Counterparts. This Agreement may be executed in two or
more counterparts, all of which when taken together shall be considered one and
the same agreement and shall become effective when counterparts have been signed
by each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a ".pdf" format
data file, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or ".pdf" signature page were an original
thereof.
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18. Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Purchase Agreement.
19. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
20. Headings. The headings in this Agreement are for convenience only, do
not constitute a part of the Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
21. Independent Nature of Holders' Obligations and Rights. The obligations
of each Purchaser hereunder are several and not joint with the obligations of
any other Purchasers hereunder, and no Purchaser shall be responsible in any way
for the performance of the obligations of any other Purchaser hereunder. Nothing
contained herein or in any other agreement or document delivered at any closing,
and no action taken by any Purchaser pursuant hereto, shall be deemed to
constitute the Purchasers as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Purchasers are in any
way acting in concert with respect to such obligations or the transactions
contemplated by this Agreement. Each Purchaser shall be entitled to protect and
enforce its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Purchaser to be joined as
an additional party in any proceeding for such purpose.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
Agreement and Amendment to Debenture to be duly executed by their respective
authorized signatories as of the date first indicated above.
ONETRAVEL HOLDINGS, INC. Address for Notice:
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By:_____________________________ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Building G, Suite 300
Title: President ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
FAREQUEST HOLDINGS, INC. Address for Notice:
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By:_____________________________ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Building G, Suite 300
Title: President ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
ONETRAVEL, INC. Address for Notice:
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By:_____________________________ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Building G, Suite 300
Title: President ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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[PURCHASER SIGNATURE PAGES TO OTV WAIVER AGREEMENT AND AMENDMENT TO DEBENTURE]
IN WITNESS WHEREOF, the undersigned have caused this Forbearance Agreement
and Amendment to Debenture to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Purchaser: ____________________________________________________________
Signature of Authorized Signatory of Purchaser: _______________________________
Name of Authorized Signatory: _________________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Purchaser: ___________________________________________________
Address for Notice of Purchaser:
[SIGNATURE PAGES CONTINUE]
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