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| 8-K - FORM 8-K - Travelport LTD | y92878e8vk.htm |
Amendment No. 2, dated September 28, 2011, to Travelport Holdings Limited’s Disclosure Statement for the
Prepetition Solicitation of Votes with Respect to the Prepackaged Plan of Reorganization of Travelport
Holdings Limited, dated September 21, 2011
Prepetition Solicitation of Votes with Respect to the Prepackaged Plan of Reorganization of Travelport
Holdings Limited, dated September 21, 2011
This second amendment, dated September 28, 2011 (this “Amendment”), amends and
restates certain information in the Disclosure Statement, dated September 21, 2011, for the
Prepetition Solicitation of Votes with Respect to the Prepackaged Plan of Reorganization of
Travelport Holdings Limited (together with Amendment No. 1 thereto, dated September 23, 2011, the
“Disclosure Statement”). This Amendment forms a part of and should be read in conjunction
with the Disclosure Statement, including all risk factors contained therein. Capitalized terms used
but not defined herein shall have the meanings ascribed to them in the Disclosure Statement.
This Amendment updates, amends and restates certain information in the Disclosure Statement,
and, accordingly, to the extent inconsistent, the information in this Amendment supersedes the
information contained in the Disclosure Statement. Any statement that is updated or superseded
shall not be deemed to constitute a part of the Disclosure Statement except as amended, restated
and/or superseded by this Amendment. Information contained in the Disclosure Statement and not
addressed in this Amendment remains unchanged.
Copies of the Disclosure Statement may be obtained at no cost by contacting:
AlixPartners, LLP
2101 Cedar Springs Road, Suite 1100
Dallas, TX 75201
Attn: John Franks
Phone: 1-888-369-6608
Facsimile: 1-214-647-7503
Email: THL@alixpartners.com
2101 Cedar Springs Road, Suite 1100
Dallas, TX 75201
Attn: John Franks
Phone: 1-888-369-6608
Facsimile: 1-214-647-7503
Email: THL@alixpartners.com
Voting Deadline
The Voting Deadline is hereby extended to September 29, 2011 at 5:00 p.m. prevailing Eastern
time (the “Extended Voting Deadline”). Any parties that have submitted a Ballot(s) to
accept or reject the Plan prior to the date of this Amendment may seek to withdrawal such vote(s)
at or prior to the Extended Voting Deadline by providing written, telegraphic or facsimile
transmission of such withdrawal to Alix Partners, LLP at its address set forth above at or prior to
the Extended Voting Deadline. Any such notice of withdrawal must (1) specify the name of the
person or entity who submitted the vote(s) and/or Ballot(s) to be withdrawn, (2) contain a
recitation of the claim(s) relating to the vote(s) and/or Ballot(s) to be withdrawn, and (3)(a) be
signed by the claimant in the same manner as the original signature on the Ballot(s) by which such
claims were voted or (b) be accompanied by documents of transfer to have the Voting Agent register
the transfer of such claim(s) relating to the vote(s) and/or Ballot(s) to be withdrawn into the
name of the person withdrawing such claims and a properly completed irrevocable proxy that
authorized such person to effect such revocation on behalf of such party.
All questions as to the form and validity (including time of receipt) of notices of withdrawal
will be determined by the Company in its sole discretion. Neither the Company nor the Voting Agent
or any other person will be under any duty to give notification of any defects or irregularities in
any notice of withdrawal or incur any liability for failure to give any such notification.
Withdrawn Ballots may be resubmitted at or prior to the Extended Voting Deadline in accordance
with the procedures set forth in Section XII of the Disclosure Statement, The Solicitation.
Prepackaged Plan of Reorganization of Travelport Holdings Limited
The Plan (which was annexed to the Disclosure Statement as Appendix A) has been modified as
set forth in the marked version attached as Exhibit A hereto and Section V. of the Disclosure
Statement is hereby deemed modified to reflect the changes to the Plan, as set forth on Exhibit A
hereto.
Restructuring Support Agreement
The term sheet describing the various consideration to be received by the Holders of the PIK
Loan Unsecured Claims, including without limitation, a description of the PIK Amendments, PIK Loan
Cash Distribution, the Second Lien OpCo Term Loan, the distribution of Worldwide’s equity, the
Shareholders’ Agreement, the Registration Rights Agreement and other key economic and business
terms of the Plan, attached to the Restructuring Support Agreement (which was attached as part of
Exhibit B to the Plan annexed to the Disclosure Statement as Appendix A), has been amended and
supplemented by the terms in the amended term sheet, a marked version of which is attached as
Exhibit B hereto (the “Amended Term Sheet”). The signatories to the Restructuring Support
Agreement have consented to the Amended Term Sheet, which is incorporated into and forms a part of
the Restructuring Support Agreement as of the date of such consent.
Amendment Agreement
The Amendment Agreement (which was annexed to the Disclosure Statement as Appendix F and
attached to the Plan as Exhibit A) has been modified as set forth in the marked pages attached as
Exhibit C hereto.
Second Lien OpCo Term Loan Credit Agreement
The Second Lien OpCo Term Loan Credit Agreement (which was annexed to the Disclosure Statement
as Appendix G and attached to the Plan as Exhibit C) has been modified as set forth in the marked
pages attached as Exhibit D.
Certain Tax Consequences of the Plan
Section IX.B. of the Disclosure Statement (Certain United States Federal Income Tax
Considerations) is hereby amended, restated and superseded in its entirety as follows:
B. CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary (this “Summary”) of certain U.S. federal income tax
considerations to an eligible Holder (as defined below) of an Allowed Class 2 PIK Loan Unsecured
Claim that, pursuant to the Plan, exchanges its PIK Loan Unsecured Claim for its Pro Rata share of
(i) the PIK Loan Cash Distribution, (ii) the Second Lien OpCo Term Loan Exchange Portion, (iii) (a)
the Common Stock Issuance and (b) the Additional Share Distribution (together the “New
Worldwide Shares”), (iv) the Tranche A Extended PIK Loan and (v) the Tranche B Extended PIK
Loan (together with the Tranche A Extended PIK Loan, the “New PIK Loan,” and the New PIK
Loan together with the Second Lien OpCo Term Loan Exchange Portion, collectively, the “New
Loans”) (such transaction, the “Exchange”). The New Loans, together with the New
Worldwide Shares, are hereinafter referred to as the “New Interests.” This Summary
addresses only U.S. federal income tax considerations relevant to Holders that hold the PIK Loan
Unsecured Claims and will hold the New Interests as “capital assets” within the meaning of the
Internal Revenue Code of 1986, as amended (the “Tax Code”). This Summary is based on the
Tax Code, Treasury regulations promulgated thereunder, published rulings of the U.S. Internal
Revenue Service (the “IRS”) and judicial and administrative interpretations thereof, in
each case as in effect and available as of the date hereof. Subsequent developments in any of the
foregoing, or changes in how any of these authorities are interpreted, which may be applied
retroactively, could have a material effect on the U.S. federal income tax consequences of
participating in the Exchange, and of owning and disposing of the New Interests as described in
this Summary. No ruling will be sought from the IRS with respect to any statement or conclusion in
this Summary, and no assurance can be given
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that the IRS will not challenge such statement or conclusion in this Summary or, if
challenged, that a court will uphold such statement or conclusion.
This Summary does not purport to address all tax consequences that may be important to a
particular Holder in light of that Holder’s investment or other circumstances, or to certain
categories of investors that may be subject to special rules, including, among others, financial
institutions, insurance companies, real estate investment trusts, regulated investment companies,
dealers or traders in securities or currencies, tax-exempt entities, partnership or other
pass-through entities, investors holding the PIK Loan Unsecured Claims or the New Interests as part
of an “integrated,” “hedging” or “conversion” transaction or as a position in a “straddle” for U.S.
federal income tax purposes, grantor trusts, Holders that have a “functional currency” other than
the U.S. dollar, Holders that have a taxable year other than a calendar year, U.S. expatriates and
Holders subject to the U.S. federal alternative minimum tax. This Summary does not address any tax
considerations to secondary purchasers of the New Interests. In addition, this discussion does not
address any tax considerations arising under the U.S. federal estate and gift tax laws or the laws
of any state, local, foreign or other taxing jurisdiction. This Summary does not address any
consequences that may result to Holders as a result of becoming a United States Shareholder, as
defined in the Tax Code, with respect to any controlled foreign corporation (“CFC”),
including Worldwide or any entity owned directly or indirectly by Worldwide.
For purposes of this Summary, a “U.S. Holder” means a holder of a PIK Loan Unsecured
Claim that is (1) an individual who is a citizen or resident of the United States, (2) a
corporation or other entity taxable as a corporation for United States federal income tax purposes
created in, or organized under the law of, the United States, any state thereof or the District of
Columbia, (3) an estate the income of which is includable in gross income for United States federal
income tax purposes regardless of its source or (4) a trust (A) the administration of which is
subject to the primary supervision of a United States court and of which one or more United States
persons who have the authority to control all substantial decisions or (B) that has a valid
election in effect under applicable United States Treasury regulations to be treated as a United
States person. For purposes of this Summary, a “Non-U.S. Holder” is a beneficial owner of
a PIK Loan Unsecured Claim that is neither a partnership (or other entity treated as a partnership
for U.S. federal income tax purposes) nor a U.S. Holder. For purposes of this Summary, a
“Holder” is a U.S. Holder or a Non-U.S. Holder.
THIS SUMMARY OF CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS IS FOR GENERAL INFORMATION
PURPOSES ONLY AND IS NOT TAX ADVICE. EACH HOLDER IS URGED TO CONSULT ITS INDEPENDENT TAX ADVISOR
AS TO THE PARTICULAR TAX CONSIDERATIONS TO SUCH HOLDER OF ACQUIRING THE NEW INTERESTS PURSUANT TO
THE EXCHANGE OFFER AND THE OWNERSHIP AND DISPOSITION OF THE NEW INTERESTS, INCLUDING THE
APPLICABILITY OF U.S. FEDERAL, STATE, OR LOCAL TAX LAWS OR NON-U.S. TAX LAWS.
If a partnership (including any entity treated as a partnership for U.S. federal income tax
purposes) holds a PIK Loan Unsecured Claim and acquires the New Interests pursuant to the Plan, the
U.S. federal income tax consequences to the partners of such partnership will depend on the
activities of the partnership and the status of the partners. A partnership considering acquiring
the New Interests pursuant to the Plan should consult its independent tax advisor regarding the
consequences to its partners of acquiring the New Interests pursuant to the Plan and the ownership
or disposition of the New Interests by the partnership.
TO ENSURE COMPLIANCE WITH TREASURY DEPARTMENT CIRCULAR 230, HOLDERS OF THE PIK LOAN UNSECURED
CLAIMS ARE HEREBY NOTIFIED THAT: (A) ANY DISCUSSION OF FEDERAL TAX ISSUES IN THIS DISCLOSURE
STATEMENT IS NOT INTENDED TO BE RELIED UPON, AND CANNOT BE RELIED UPON, BY HOLDERS FOR THE PURPOSE
OF AVOIDING PENALTIES THAT MAY BE IMPOSED ON HOLDERS UNDER THE TAX CODE; (B) SUCH DISCUSSION IS
BEING USED IN CONNECTION WITH THE PROMOTION OR MARKETING (WITHIN THE MEANING OF CIRCULAR 230) BY
TRAVELPORT OF THE TRANSACTIONS OR MATTERS ADDRESSED HEREIN; AND (C) CREDITORS AND NEW
INTEREST-HOLDERS SHOULD SEEK ADVICE BASED ON THEIR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX
ADVISOR.
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Certain U.S. Federal Income Tax Consequences To The Company
Cancellation Of Indebtedness Income
Treatment Of Worldwide As Issuer Of The PIK Loan Unsecured Claims And The New Interests
For U.S. Federal Income Tax Purposes. For U.S. federal income tax purposes, Worldwide is
expected to be treated as, prior to the Exchange, the issuer of the PIK Loan Unsecured Claims and,
in connection with the Exchange, the transferor of the PIK Loan Cash Distribution and the issuer of
the New Interests. This is because each of the Company, Travelport Limited, certain direct and
indirect subsidiaries of Travelport Limited and Travelport LLC is, or will be at the time of the
Exchange, treated as an entity that is not regarded as separate from (i.e., is treated as a
division of) Worldwide. Thus, pursuant to the Plan, Worldwide will be treated as having satisfied
each PIK Loan Unsecured Claim in exchange for the PIK Loan Cash Distribution and the New Interests.
COD Income. In general, the discharge of a debt obligation (such as a PIK Loan
Unsecured Claim) by a corporation in exchange for cash and other property having a fair market
value (or, in the case of a new debt instrument, an “issue price”) that is less than the “adjusted
issue price” of the old debt gives rise to cancellation of indebtedness (“COD”) income for
U.S. federal income tax purposes to a corporation. Although not free from doubt, Worldwide intends
to take the position that any COD income recognized by Worldwide as a result of the Plan is neither
effectively connected with the conduct of a trade or business within the United States nor U.S.
source “fixed or determinable annual or periodical gains, profits or income”; therefore, Worldwide,
a Bermuda corporation, should not recognize any COD income for U.S. federal income tax purposes as
a result of the Plan.
Net Operating Losses — Section 382
An indirect subsidiary of the Company, Travelport Inc., a Delaware corporation, has a
significant amount of net operating losses (“NOLs”) for U.S. federal income tax purposes.
Section 382 of the Tax Code contains rules that limit the ability of a company that has NOLs and
undergoes an “ownership change,” which is generally an increase in the ownership by certain
shareholders of more than 50% in value of its stock over a three-year period, to utilize its NOL
carryforwards and certain built-in losses recognized in years after the ownership change. These
rules generally operate by taking into account “owner shifts” on the part of stockholders that own,
directly or indirectly, 5% or more of the stock of the loss corporation and any changes in
ownership arising from a new issuance of stock by the loss corporation. Generally, if an ownership
change occurs, the NOLs that the loss corporation can use each year will be limited to the product
of the applicable long-term tax exempt rate (a rate published monthly by the U.S. Treasury
department) (3.86% for ownership changes that occur in September 2011) and the fair market value of
the company’s stock immediately before the ownership change, with certain adjustments.
In connection with the Plan, Worldwide will issue New Worldwide Shares that will result in an
owner shift with respect to the stock of Travelport Inc. of up to 44%. In addition, Worldwide may
issue Worldwide shares in an amount of up to 5% of the fully diluted equity of Worldwide pursuant
to a management incentive plan, which also may result in an owner shift with respect to Travelport
Inc. Although the Company believes that these owner shifts, combined with other owner shifts that
have occurred to date during the relevant testing period, should not result in an “ownership
change” under Tax Code section 382 with respect to Travelport Inc. based upon the terms of the
Plan, there can be no assurance of this fact. Moreover, even if the issuance of New Worldwide
Shares and management equity in connection with the Plan does not result in an ownership change
with respect to Travelport Inc., there can be no assurance that there will not be future owner
shifts that result in an ownership change. If Travelport Inc. were to experience an ownership
change as defined in Tax Code Section 382, its ability to use its NOLs thereafter would become
subject to the limitations described above. In addition, its ability to use its “net unrealized
built-in losses” (if any) to offset future taxable income realized within five years of the
ownership change could become subject to limitation. Finally, Travelport Inc.’s NOLs could become
subject to further limitations if it were to undergo additional future ownership changes and could
potentially be reduced to zero if Travelport Inc. were to fail to continue its business enterprise
for at least two years following any ownership change.
Certain U.S. Federal Income Tax Consequences Of The Exchange To U.S. Holders
The U.S. federal income tax consequences of the transactions contemplated by the Plan to U.S.
Holders of a PIK Loan Unsecured Claim are not entirely clear. Although the discussion below
describes certain
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possible U.S. federal income tax consequences of the transactions contemplated by the Plan to
U.S. Holders, no assurance can be given as to the treatment of such transactions by the IRS or as
to whether such treatment would be sustained by a court. If required under the Tax Code, the
Company will notify the U.S. Holders as to any position the Company intends to take regarding the
transactions contemplated by the Plan. Each U.S. Holder should consult its independent tax advisor
regarding the tax consequences to it of the transactions contemplated by the Plan and information
that may be relevant to its particular situation and circumstances.
Travelport believes that the New Loans should be treated as debt for U.S. federal income tax
purposes and intend to treat the New Loans as such. By acquiring New Loans pursuant to the
Exchange, each beneficial owner agrees to treat the New Loans as debt for U.S. federal income tax
purposes. This Summary assumes that the New Loans are properly characterized as debt for U.S.
federal income tax purposes. If any of the New Loans were treated as equity, adverse consequences
could result to one or more of the Company, Worldwide, Travelport LLC, or Travelport Inc., and to
Holders.
The Exchange
Gain Or Loss Realized In The Exchange. For U.S. federal income tax purposes, a U.S.
Holder should generally realize (but not necessarily recognize; see “Tax-Deferred Recapitalization”
below) gain or loss with respect to the exchange of its PIK Loan Unsecured Claim for the PIK Loan
Cash Distribution, the New Loans and the New Worldwide Shares in an amount equal to the difference
between (a) the amount realized on the Exchange by the U.S. Holder and (b) the U.S. Holder’s
adjusted tax basis in its PIK Loan Unsecured Claim exchanged therefor immediately prior to the
Exchange.
The amount realized on the Exchange by a U.S. Holder should equal the sum of (i) the amount of
cash received, (ii) the “issue price” (as discussed below; see “Tax Consequences Of Holding The New
PIK Loan And The Second Lien OpCo Term Loan Exchange Portion — Issue Price”) of each New Loan, and
(iii) the fair market value of the New Worldwide Shares. For this purpose, the determination of
the amount realized with respect to the Additional Share Distribution is unclear in a number of
respects and may differ depending on the overall tax treatment of the Exchange. In addition, the
effect (if any) of a Determination of Non-Issuance (as defined below) on the determination of the
amount realized on the Exchange by a U.S. Holder, including adjustments in the event of a
Determination of Non-Issuance, is unclear.
In connection with the transaction, Holders of PIK Loan Unsecured Claims will be entitled to
receive 25% of any amount that is permitted to be paid as a lump sum upon an initial public
offering or a change of control to an affiliate of the Blackstone Group from Travelport in
connection with certain pre-existing agreements (the “Additional Payment”). The U.S.
federal income tax treatment of the Additional Payment, if any, is not entirely clear. The Company
believes that the Additional Payment should be treated as additional consideration from Worldwide
to the U.S. Holder in the Exchange, and the Company, Worldwide, The Blackstone Group and affiliates
of The Blackstone Group have agreed to so report the Additional Payment for U.S. federal income tax
purposes. There is no authority on point for the foregoing treatment, and there is no assurance
that the IRS will not challenge such treatment or, if challenged, that a court will uphold such
treatment. The remainder of this discussion assumes that the Additional Payment will be treated as
additional consideration in the Exchange for U.S. federal income tax purposes. U.S. Holders should
consult their independent tax advisors as to the treatment of the Additional Payment, including any
possible recharacterization of the Additional Payment as other than additional consideration
received in the Exchange.
A U.S. Holder’s adjusted tax basis in its PIK Loan Unsecured Claim generally will equal the
amount paid for such PIK Loan Unsecured Claim, increased by any original issue discount
(“OID”) previously included in income or market discount, if any, previously taken into
account by such U.S. Holder and reduced by any amortizable bond premium previously amortized and
any payments previously made to the U.S. Holder on the PIK Loan Unsecured Claim in respect of such
PIK Loan Unsecured Claim.
Tax-Deferred Recapitalization. A corporation engages in a tax-deferred
“recapitalization” if it exchanges outstanding stock and/or securities for newly issued stock
and/or securities (each as defined under the relevant Tax Code rules). Thus, the Exchange would
constitute a tax-deferred recapitalization in whole or in part if the PIK Loan Unsecured Claim is
characterized as a “security” for U.S. federal income tax purposes. A debt
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instrument constitutes a “security” for these purposes if, based on all the facts and
circumstances, the instrument represents a meaningful investment in the issuer of the instrument.
Although there are a number of factors that may affect whether a debt instrument is a “security,”
one of the most important factors is the term of the instrument. In general, debt instruments with
an original term of less than five years are less likely to be treated as “securities,” and debt
instruments with an original term of more than ten years are more likely to be treated as
“securities.” Whether a debt instrument with an original term of between five and ten years
qualifies as a “security” is not entirely clear and depends on the facts and circumstances. In
addition, under a revenue ruling issued by the IRS, under certain circumstances the term of a debt
instrument received in a reorganization (such as a tax-deferred recapitalization) in exchange for
another debt instrument may be considered to include the term of the original debt instrument for
purposes of determining whether the newly received debt instrument is a security. Each PIK Loan
Unsecured Claim has an original term of five years. The Tranche A Extended PIK Loan has an
additional term of less than a year, which, if considered together with the term of each PIK Loan
Unsecured Claim, would yield a term of five to six years. The Tranche B Extended PIK Loan has an
additional term of three to four years, which, if considered together with the term of each PIK
Loan Unsecured Claim, would yield a term of eight to nine years. The Second Lien OpCo Term Loan
Exchange Portion has a term of one year, which, if considered together with the term of the PIK
Loan Unsecured Claim, would yield a term of six years. Therefore, it is not entirely clear whether
any of the PIK Loan Unsecured Claims, the Tranche A Extended PIK Loan, the Tranche B Extended PIK
Loan or the Second Lien OpCo Term Loan Exchange Portion would qualify as a “security.” It appears
likely, however, based upon the IRS ruling mentioned above, that if the PIK Loan Unsecured Claim is
a “security,” each of the Tranche A Extended PIK Loan, the Tranche B Extended PIK Loan and the
Second Lien OpCo Term Loan Exchange Portion also would qualify as a security, and the remainder of
the discussion under this heading assumes this to be the case. Due to the inherently factual
nature of the determination, however, each U.S. Holder is urged to consult its independent tax
advisor regarding the classification of its PIK Loan Unsecured Claim, Tranche A Extended PIK Loan,
the Tranche B Extended PIK Loan and the Second Lien OpCo Term Loan Exchange Portion as “securities”
for U.S. federal income tax purposes and the application of the tax-free recapitalization rules.
Assuming, as noted above, that the PIK Loan Unsecured Claim qualifies as a security for U.S.
federal income tax purposes, and that the New Loans also so qualify, the exchange of the PIK Loan
Unsecured Claim for the PIK Loan Cash Distribution and the New Interests pursuant to the Exchange
should qualify as a tax-deferred recapitalization. Subject to possible adjustment (as described
below), under these circumstances, a U.S. Holder generally should recognize gain (but not loss)
pursuant to the Exchange in an amount equal to the lesser of (i) the amount of gain realized in the
Exchange (as described in “Gain Or Loss Realized In The Exchange” above) or (ii) the amount of cash
received in the Exchange (such recognized gain, the “Initial Boot Gain”). As noted
earlier, the tax treatment of the issuance of the Additional Share Distribution and of the
Additional Payment is not entirely clear. In this regard, the gain that a U.S. Holder recognizes
in the Exchange may need to be adjusted upon a Release (as defined below). Subject to the
recharacterization of market discount as ordinary income (see “Market Discount” below), any such
gain should be capital gain, which would be long-term capital gain if the U.S. Holder held the PIK
Loan Unsecured Claim for more than one year as of the date of the Exchange.
Upon the transfer of the Additional Share Distribution or any cash or other property released
in connection therewith or in lieu thereof or upon a receipt of the Additional Payment (such cash,
other property or Additional Payment, the “Other Distribution”) to a U.S. Holder (a
“Release”), a portion of such issued stock and Other Distribution should be recharacterized
as imputed interest based on the “lowest 3-month” Federal short-term rate (for Releases that occur
within 3 years of the date of the Exchange) or the “lowest 3-month” Federal mid-term rate (for
Releases that occur after 3 years but within 9 years of the date of the Exchange), compounded
semiannually, as of the date of the Exchange (if the Exchange takes place in September 2011, the
rates are 0.26% and 1.62%, respectively).
Pursuant to the Plan, upon a Release, (i) Travelport will treat as imputed interest, first,
all or a portion of the Other Distribution distributed in the Release (such recharacterized Other
Distribution, the “Imputed Interest Distribution”), and thereafter, to the extent
necessary, a portion of the stock of Worldwide distributed in the Release (such recharacterized
stock, the “Imputed Interest Shares,” and together with the Imputed Interest Distribution,
the “Imputed Interest Property”); and (ii) Travelport will treat any Imputed Interest
Shares as separate shares (and not as a portion of each share of Worldwide that is distributed in
connection with the Release). There is no authority on point for the foregoing treatment, and
there is no assurance that the IRS will not challenge such treatment or, if challenged, that a
court will uphold such treatment. If the foregoing treatment is not respected, a U.S.
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Holder may recognize a larger amount of income upon a Release and may hold stock of Worldwide
distributed in the Release with a split basis and holding period, among other consequences. The
remainder of this discussion assumes that the treatment described in the first sentence of this
paragraph is respected. Each U.S. Holder should consult its independent tax advisor regarding the
determination of imputed interest upon a Release and information that may be relevant to its
particular situation and circumstances.
Upon a U.S. Holder’s entitlement to receive any Imputed Interest Property in connection with a
Release, the U.S. Holder should be taxed on the amount of cash included in, plus the fair market
value of any non-cash consideration included in the Imputed Interest Property distributed in the
Release as of the date of the Release as interest income.
Subject to the last sentence of this paragraph concerning Imputed Interest Shares, a U.S.
Holder’s tax basis in its New Interests should equal the tax basis of the PIK Loan Unsecured Claim
surrendered in exchange therefor (as described in “Gain Or Loss Realized In The Exchange” above),
increased by the amount of any gain recognized and decreased by the amount of cash received in the
Exchange (as so adjusted, the “Exchange Basis”); the Exchange Basis should be allocated
among the classes of New Interests received or receivable by the U.S. Holder, including the
Additional Share Distribution, in proportion to their respective fair market values as of the date
of the Exchange; and the U.S. Holder’s holding period for its New Interests should include its
holding period for its PIK Loan Unsecured Claim. Although not free from doubt, IRS guidance
suggests that a Holder should allocate its Exchange Basis over all its New Worldwide Shares,
including its Additional Share Distribution, even though a portion of the Additional Share
Distribution will likely be recharacterized as Imputed Interest Shares (and, as discussed in the
following paragraph, Travelport believes that the Exchange Basis should be reallocated upon a
Release to take into account this recharacterization). A U.S. Holder should hold the Imputed
Interest Property (other than cash) distributed in a Release with a basis equal to its fair market
value as of the date of the Release and a holding period that begins the day after the date of the
Release.
Upon a Release or the determination that the Additional Share Distribution will not be made
(the “Determination of Non-Issuance”), Travelport believes that a U.S. Holder should
reallocate the Exchange Basis, less the basis attributable to any New Interests disposed of since
the Exchange (including the basis attributable to the Additional Share Distribution, the right to
receive which was also disposed of since the Exchange (together with the disposed-of New Interests,
the “Transferred New Interests”), over the New Interests (excluding (x) any Transferred New
Interests and (y) any Imputed Interest Shares), in proportion to their respective fair market
values. Although there is no authority on point and the matter is not free from doubt, Travelport
believes that the fair market values for this purpose should be measured as of the date of the
Exchange. A U.S. Holder should not recognize gain or loss upon the Determination of Non-Issuance.
In the event that a U.S. Holder receives an Other Distribution (but only to the extent not
treated as an Imputed Interest Distribution), Travelport believes that the U.S. Holder should
recognize any gain realized with respect to the Exchange that was not previously recognized (see
“Gain Or Loss Realized In The Exchange” above) in an amount not in excess of the amount of cash,
plus the fair market value of any non-cash consideration included in such Other Distribution (the
“Additional Boot Gain”). Subject to the recharacterization of market discount as ordinary
income (see “Market Discount” below), any such Additional Boot Gain should be capital gain, which
would be long-term capital gain if the U.S. Holder held its PIK Loan Unsecured Claim for more than
one year as of the date of the Exchange.
The tax treatment of the transactions described in the foregoing discussion is extremely
complex and uncertain in a number of respects; each U.S. Holder should consult its independent tax
advisor regarding the treatment of the Additional Share Distribution and the Determination of
Non-Issuance.
Taxable Transaction. If the PIK Loan Unsecured Claim is not properly characterized as
a security for purposes of the tax-deferred recapitalization rules, then the Exchange cannot
qualify as a tax-deferred recapitalization as described above and will be taxable to a U.S. Holder.
Because the terms of the Exchange provide for the possibility of future payments (which, as noted
above, should include the Additional Share Distribution, the Other Distribution and the Additional
Payment), a U.S. Holder may be eligible to report its gain using the “installment method” or,
because there is an argument that the fair market value of the Additional Share Distribution and
the Additional Payment cannot reasonably be ascertained, possibly the “open transaction” method.
If a U.S.
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Holder opts out of (or is ineligible for) either of these reporting methods, the U.S. Holder
would likely recognize the gain or loss that it realizes with respect to the Exchange on the date
of the Exchange, taking into account the uncertainties associated with the Determination of
Non-Issuance (such reporting method, the “installment method” or the “open transaction” method, the
“Applicable Method”). The rules regarding the Applicable Methods are extremely
complicated; each U.S. Holder should consult its independent tax advisor as to whether any such
Applicable Method is available to the U.S. Holder and the result thereof.
Subject to the treatment of a portion of any gain as ordinary income to the extent of any
market discount accrued on the PIK Loan Unsecured Claim (see “Market Discount” below), any gain or
loss recognized should be capital gain or loss, which would be long-term capital gain or loss if
the U.S. Holder held the PIK Loan Unsecured Claim for more than one year as of the date of the
Exchange or, depending on the Applicable Method, with respect to the Additional Share Distribution,
as of the date of receipt of the Additional Share Distribution or the Other Distribution (as
applicable, the “Relevant Date”). The deductibility of capital loss is subject to
limitations under the Tax Code.
A U.S. Holder generally should have an adjusted tax basis in its Tranche A Extended PIK Loan,
Tranche B Extended PIK Loan, and Second Lien OpCo Term Loan Exchange Portion equal to each debt
instrument’s issue price (as determined below) and a basis in its New Worldwide Shares equal to
their fair market value on the Relevant Date, and generally should commence a new holding period
with respect to each applicable class of New Interests the day after the Relevant Date.
Market Discount. The market discount provisions of the Tax Code may apply to a U.S.
Holder of a PIK Loan Unsecured Claim that participates in the Exchange. In general, a PIK Loan
Unsecured Claim that was acquired by a U.S. Holder after its original issuance will be treated as
acquired with market discount if the PIK Loan Unsecured Claim’s adjusted issue price exceeds the
tax basis of the debt instrument in the U.S. Holder’s hands immediately after its acquisition,
unless such excess is less than a statutorily defined de minimis amount.
Under the market discount rules, any gain recognized by an exchanging U.S. Holder with respect
to a PIK Loan Unsecured Claim (including Initial Boot Gain and Additional Boot Gain) that was
acquired with market discount generally should be subject to tax as ordinary income to the extent
of the market discount that accrued while the PIK Loan Unsecured Claim was held by such U.S.
Holder. However, a U.S. Holder who previously has elected to include market discount in income as
it accrued for U.S. federal income tax purposes will not be subject to this rule.
To the extent that the receipt of New Interests in the Exchange is treated as received
pursuant to a tax-free recapitalization, any accrued market discount on the PIK Loan Unsecured
Claim may carry over to such class of New Interests and be treated as ordinary income on the
disposition of such class of New Interests.
Each U.S. Holder is urged to consult its independent tax advisor regarding the extent to
which, if any, it will recognize market discount as ordinary income upon the Exchange and/or that
accrued market discount will carry over to the New Interests.
Tax Consequences Of Holding New Worldwide Shares
Distributions. Any distribution of cash or other property (including the amount of
tax withheld from such distributions, if any) (a “Worldwide Share Distribution”) paid with
respect to the New Worldwide Shares (other than the Additional Share Distribution before it occurs)
out of Worldwide’s current or accumulated earnings and profits, as determined under U.S. federal
income tax principles, generally will be includible in the gross income of a U.S. Holder as
dividend income. Worldwide has not yet determined whether it will determine its earnings and
profits on the basis of United States federal income tax principles; U.S. Holders should therefore
expect that any Worldwide Share Distribution paid could be reported to them as a “dividend” for
United States federal income tax purposes. Dividends received on the New Worldwide Shares will not
be eligible for the dividends received deduction allowed to corporations.
Dividends generally will be treated as income from foreign sources for United States foreign
tax credit purposes. A U.S. Holder may be eligible, subject to a number of complex limitations, to
claim a foreign tax
8
credit in respect of any foreign withholding taxes imposed on dividends received on New
Worldwide Shares. A U.S. Holder who does not elect to claim a foreign tax credit for foreign tax
withheld may instead claim a deduction for United States federal income tax purposes in respect of
such withholdings but only for a year in which such U.S. Holder elects to do so for all foreign
income taxes. The rules with respect to foreign tax credits are complex and U.S. Holders are urged
to consult their independent tax advisor regarding the availability of the foreign tax credit under
their particular circumstances.
Disposition Of New Worldwide Shares. When a U.S. Holder sells or otherwise disposes
of New Worldwide Shares (which, for purposes of the discussion under this heading, includes rights
to receive the Additional Share Distribution) acquired pursuant to the Exchange in a taxable
transaction (a “Disposition”), the U.S. Holder generally should recognize gain or loss in
an amount equal to the difference between (i) the amount realized on the Disposition and (ii) the
U.S. Holder’s adjusted tax basis in the New Worldwide Shares (likely including any basis allocated
to the Additional Share Distribution being sold or otherwise disposed of as discussed above). To
the extent that the receipt of New Worldwide Shares in the Exchange was treated as received
pursuant to a tax-free recapitalization for a portion of the PIK Loan Unsecured Claim, any accrued
market discount on the PIK Loan Unsecured Claim that carried over to the New Worldwide Shares, as
discussed above, must be treated as ordinary income on the disposition of the New Worldwide Shares.
Otherwise, such gain or loss generally should be capital gain or loss, which would be long-term
capital gain or loss if the U.S. Holder’s holding period for the New Worldwide Shares was more than
one year as of the date of the Disposition. The deductibility of any capital loss is subject to
limitations under the Tax Code.
Each U.S. Holder of New Worldwide Shares is urged to consult its independent tax advisor
regarding the tax consequences of the Disposition of New Worldwide Shares.
Tax Consequences Of Holding The New PIK Loan And The Second Lien OpCo Term Loan Exchange Portion
Issue Price. The determination of the issue price of the New Loans will depend on
whether any of the New Loans are publicly traded and, to the extent not, whether the PIK Loan
Unsecured Claim is publicly traded. Each of the Tranche A Extended PIK Loan, the Tranche B
Extended PIK Loan, and the Second Lien OpCo Term Loan Exchange Portion will generally be considered
to be “publicly traded” if, at any time during the 60-day period ending 30 days after its issue
date (which will be the date of the Exchange), (i) it appears on a system of general circulation
that provides a reasonable basis to determine the fair market value of such New Loans by
disseminating either (x) recent price quotations (including rates, yields, or other pricing
information) of one or more identified brokers, dealers or traders or (y) actual prices (including
rates, yields, or other pricing information) of recent sales transactions or (ii) price quotations
are readily available from dealers, brokers or traders and certain exceptions do not apply. The
Company’s financial advisors have informed it that they expect that the New Loans will be publicly
traded. Assuming this to be the case, the issue price of each of the Tranche A Extended PIK Loan,
the Tranche B Extended PIK Loan, and the Second Lien OpCo Term Loan Exchange Portion will be the
fair market value of each such New Loan on its issue date. The rules regarding the determination
of issue price are complex and highly detailed, and each U.S. Holder should consult its independent
tax advisor regarding the determination of the issue price of the New PIK Loan and the Second Lien
OpCo Term Loan Exchange Portion.
OID. Subject to “Short-Term Obligations” below, if, as expected, the issue price of
the Tranche A Extended PIK Loan, the Tranche B Extended PIK Loan and/or the Second Lien OpCo Term
Loan Exchange Portion (as described above under “Issue Price”) is less than such loan’s stated
redemption price at maturity by at least a specified de minimis amount, the Tranche A
Extended PIK Loan, the Tranche B Extended PIK Loan and/or the Second Lien OpCo Term Loan Exchange
Portion, as applicable, will be treated as issued with OID in an amount equal to the difference
between the issue price of such New Loan and its stated redemption price at maturity. For this
purpose, the de minimis amount is 0.25% of the stated redemption price at maturity of each
New Loan multiplied by the number of complete years to maturity from the issue date of such New
Loan. The term “stated redemption price at maturity” generally means all payments required to be
made under a New Loan other than payments of qualified stated interest.
A U.S. Holder of a New Loan that is issued with OID will be required to include the OID in
ordinary income as interest for U.S. federal income tax purposes as it accrues in accordance with a
constant yield method based upon a compounding of interest before receiving the cash to which that
interest income is attributable.
9
The amount of OID allocable to any “accrual period” generally will be an amount equal to the
excess, if any, of (i) the product of the “adjusted issue price” of the New Loan at the beginning
of such accrual period and its “yield to maturity” (determined on the basis of compounding at the
close of each accrual period and properly adjusted for the length of the accrual period) over (ii)
the aggregate of all payments of qualified stated interest allocable to the accrual period. The
accrual period for a New Loan may be of any length and may vary in length over the term of the New
Loan, provided that each accrual period cannot exceed one year and each scheduled payment of
principal or interest must occur on the first day or the final day of an accrual period. The
“yield to maturity” of a New Loan will be the discount rate that causes the present value of all
payments on such class of New Interests as of its original issue date to equal the issue price of
such class of New Interests. The “adjusted issue price” of a New Loan at the beginning of any
accrual period will equal its issue price increased by the accrued OID for each prior accrual
period (determined without regard to the amortization of any acquisition premium, as discussed
below under “Acquisition Premium Or Amortizable Bond Premium On New Loans”), minus any payments
made other than payments of qualified stated interest. Under these rules, a U.S. Holder generally
will be required to include in income increasingly greater amounts of OID in successive accrual
periods.
A U.S. Holder may elect to treat all interest on a New Loan as OID and calculate the amount
includible in gross income under the constant yield method. Such an election must be made for the
taxable year in which the U.S. Holder acquires the New Loan, and may not be revoked without the
consent of the IRS. Each U.S. Holder should consult its independent tax advisor about this
election. The remainder of this discussion assumes this election is not made.
Short-Term Obligations. If the term to maturity of the Tranche A Extended PIK Loan is
not greater than one year, a U.S. Holder that uses the cash method of accounting for U.S. federal
income tax purposes generally will not be required to accrue OID on the Tranche A Extended PIK Loan
that it holds unless it elects to do so. Absent such election, (i) any gain that such U.S. Holder
recognizes on the sale, exchange or maturity of the Tranche A Extended PIK Loan will be ordinary
income to the extent of the OID, accrued on a straight-line basis (or, upon election, under the
constant-yield method (based on daily compounding)), through the date of sale or maturity; and (ii)
a portion of the deductions otherwise allowable to such U.S. Holder for interest on borrowings
allocable to the Tranche A Extended PIK Loan will be deferred until a corresponding amount of
income is realized. U.S. Holders that use the accrual method of accounting for U.S. federal income
tax purposes and certain other U.S. Holders will be required to accrue OID currently as described
in “OID” above. The term to maturity of the Tranche A Extended PIK Loan may be treated as greater
than one year, in which case a U.S. Holder would be required to accrue OID.
Acquisition Premium Or Amortizable Bond Premium On New Loans. If a U.S. Holder’s
initial tax basis in a New Loan is greater than such instrument’s issue price and less than or
equal to its stated redemption price at maturity, such New Loan will be considered to have been
issued to such U.S. Holder at an “acquisition premium.” Under the acquisition premium rules, the
amount of OID that a U.S. Holder must include in gross income with respect to the New Loan for any
taxable year may be reduced by the portion of the acquisition premium properly allocable to that
year.
If a U.S. Holder’s initial tax basis in the New Loan is greater than its stated redemption
price at maturity, a U.S. Holder will be considered to have acquired such New Loan with
“amortizable bond premium” and a U.S. Holder will not be required to include any OID in income. A
U.S. Holder generally may elect to amortize the premium over the remaining term of the New PIK Loan
or the Second Lien OpCo Term Loan Exchange Portion, as applicable, on a constant yield method as an
offset to interest when includible in income under a U.S. Holder’s regular accounting method. An
election to amortize premium on a constant yield method will also apply to all other taxable debt
instruments held or subsequently acquired by a U.S. Holder on or after the first day of the first
taxable year for which the election is made. Such an election may not be revoked without the
consent of the IRS. If a U.S. Holder does not elect to amortize the premium, that premium will
decrease the gain or increase the loss a U.S. Holder would otherwise recognize on disposition of
the New PIK Loan or the Second Lien OpCo Term Loan Exchange Portion, as applicable. U.S. Holders
should consult their own tax advisor about this election.
Sale Or Other Disposition Of The New PIK Loan Or The Second Lien OpCo Term Loan Exchange
Portion. When a U.S. Holder sells or otherwise disposes of a New Loan acquired pursuant to the
Exchange in a Disposition, the U.S. Holder generally should recognize gain or loss in an amount
equal to the
10
difference between (i) the amount realized on the Disposition and (ii) the U.S. Holder’s
adjusted tax basis in the New Loan. Disposition will generally include a sale, retirement or
redemption of a New Loan. A U.S. Holder’s adjusted tax basis in a New Loan generally will equal
the initial tax basis of such New Loan, increased by OID or market discount previously included in
income, and decreased by any amortized bond premium and any cash payment previously made on the New
Loan other than payments of qualified stated interest. Subject to the treatment of a portion of
any gain as ordinary income to the extent of any market discount accrued on the New Loan, such gain
or loss will be capital gain or loss and will be long-term capital gain or loss if the U.S. Holder
held the New Loan, for more than one year as of the date of the Disposition. The deductibility of
any capital loss is subject to limitations under the Tax Code.
Each U.S. Holder of a New Loan is urged to consult its independent tax advisor regarding the
tax consequences of a Disposition of a New Loan.
U.S. Foreign Tax Credit Considerations Upon A Disposition Of New Interests
Gain or loss, if any, that a U.S. Holder realizes upon a Disposition of New Interests
generally will be treated as income from U.S. sources for United States foreign tax credit
limitation purposes. Consequently, a U.S. Holder may not be able to use any foreign tax credits
arising from any foreign withholding tax imposed on the Disposition of New Interests unless such
credit can be applied (subject to applicable limitations) against tax due on other income treated
as derived from foreign sources. The rules with respect to foreign tax credits are complex and
U.S. Holders are urged to consult their independent tax advisor regarding the availability of the
foreign tax credit under their particular circumstances.
Medicare Contribution Tax On Unearned Income
For taxable years beginning after December 31, 2012, a U.S. Holder that is an individual or
estate, or a trust that does not fall into a special class of trusts that is exempt from such tax,
will be subject to a 3.8% tax on the lesser of (1) the U.S. Holder’s “net investment income” for
the relevant taxable year and (2) the excess of the U.S. Holder’s modified adjusted gross income
for the taxable year over a certain threshold (which in the case of individuals will be between
$125,000 and $250,000, depending on the individual’s circumstances). A U.S. Holder’s net
investment income will generally include dividend and interest payments, accruals of OID and net
gains realized from the disposition of the New Interests, unless such dividend or interest income,
OID accrual or net gains are derived in the ordinary course of the conduct of a trade or business
(other than a trade or business that consists of certain passive or trading activities). U.S.
Holders that are individuals, estates or trusts, are urged to consult their tax advisors regarding
the applicability of the Medicare contribution tax to their income and gains in respect of their
investment in the New Interests.
Backup Withholding And Information Reporting With Respect To U.S. Holders
Certain payments are generally subject to information reporting to the IRS. Moreover, such
reportable payments may be subject to backup withholding unless the taxpayer: (i) comes within
certain exempt categories or (ii) provides a correct taxpayer identification number and certifies
under penalty of perjury that its taxpayer identification number is correct and that the taxpayer
is not subject to backup withholding because of a failure to report all dividend and interest
income.
Backup withholding is not an additional tax. Amounts withheld under the backup withholding
rules may be credited against a U.S. Holder’s U.S. federal income tax liability, and such U.S.
Holder may obtain a refund of any excess amounts withheld under the backup withholding rules by
timely filing an appropriate claim for refund with the IRS.
Recently enacted legislation will require, after December 31, 2013, withholding at a rate of
30 percent on interest on and dividends in respect of, and after December 31, 2014, withholding at
a rate of 30 percent on gross proceeds from the sale of, the New Interests held by or through
certain foreign financial institutions (including investment funds), unless such institution enters
into an agreement with the Secretary of the Treasury to report, on an annual basis, information
with respect to shares in the institution held by certain United States persons and by certain
non-U.S. entities that are wholly or partially owned by United States persons. Accordingly, the
entity
11
through which the New Interests are held will affect the determination of whether such
withholding is required. Similarly, interest on, dividends in respect of, and gross proceeds from
the sale of, the New Interests held by an investor that is a non-financial non-U.S. entity will be
subject to withholding at a rate of 30 percent, unless such entity either (i) certifies to
Travelport that such entity does not have any “substantial United States owners” or (ii) provides
certain information regarding the entity’s “substantial United States owners,” which Travelport
will in turn provide to the Secretary of the Treasury. U.S. Holders are encouraged to consult
their independent tax advisor regarding the possible implications of the legislation to the
Exchange.
Certain U.S. Federal Income Tax Consequences Of The Exchange To Non-U.S. Holders
As noted above, for U.S. federal income tax purposes, Worldwide is expected to be treated as,
prior to the Exchange, the issuer of the PIK Loan Unsecured Claims and, in connection with the
Exchange, the transferor of the PIK Loan Cash Distribution and the issuer of the New Interests.
This is because each of the Company, Travelport Limited, certain indirect subsidiaries of
Travelport Limited and Travelport LLC is treated as an entity that is not regarded as separate from
(i.e., is treated as a division of) Worldwide. Worldwide is not currently engaged, directly or
indirectly through its subsidiaries that are not treated as corporations for U.S. federal income
tax purposes, in a trade or business within the United States, and the discussion that follows
assumes that Travelport LLC will continue to be a division of Worldwide for U.S. federal income tax
purposes and that Worldwide will not at any time be engaged, directly or indirectly through its
subsidiaries that are not treated as corporations for U.S. federal income tax purposes, in a trade
or business within the United States. A Non-U.S. Holder will not be subject to U.S. federal income
tax as a result of the Exchange or on any interest paid or OID accrued on the New Loans,
distributions of cash or other property on the New Worldwide Shares or gain realized as a result of
a disposition of a New Interest.
12
EXHIBIT A
TO
AMENDMENT NO. 2 TO
DISCLOSURE STATEMENT OF
TRAVELPORT HOLDINGS LIMITED
DISCLOSURE STATEMENT OF
TRAVELPORT HOLDINGS LIMITED
FIRST AMENDED PREPACKAGED PLAN OF REORGANIZATION OF
TRAVELPORT HOLDINGS LIMITED
(Marked version)
TRAVELPORT HOLDINGS LIMITED
(Marked version)
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
& FLOM LLP
Jay M. Goffman
J. Eric Ivester
Four Times Square
New York, New York 10036
(212) 735-3000
J. Eric Ivester
Four Times Square
New York, New York 10036
(212) 735-3000
Proposed Counsel for Debtor and
Debtor-in-Possession
Debtor-in-Possession
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK |
||||
| x | ||||
| : | ||||
In re:
|
: | Chapter 11 | ||
TRAVELPORT HOLDINGS LIMITED,
|
Case No. | |||
Debtor. |
||||
| : | ||||
| : | ||||
| :: | ||||
| : | ||||
| : | ||||
| : | ||||
| x |
FIRST AMENDED PREPACKAGED PLAN OF REORGANIZATION OF
TRAVELPORT HOLDINGS LIMITED
TRAVELPORT HOLDINGS LIMITED
| Dated: | Rye, New York September |
TABLE OF CONTENTS
| Page | ||||||
INTRODUCTION |
1 | |||||
| ARTICLE I |
||||||
| DEFINED TERMS AND RULES OF INTERPRETATION |
||||||
1.1 |
Additional |
1 | ||||
1.2 |
Additional Shares | 1 | ||||
1.3 |
Additional Share Distribution | 1 | ||||
| Administrative Claim | 1 | |||||
1.5 |
2 | |||||
1.6 |
Agreement to Purchase | 2 | ||||
1.7 |
Allowed | 2 | ||||
1.8 |
“Allowed ... Claim” | 2 | ||||
1.9 |
“Allowed . . . Interest” | 2 | ||||
1.10 |
Amended and Restated PIK Loan Credit Agreement | 2 | ||||
| Amendment Agreement | 2 | |||||
| Avoidance Action | 2 | |||||
| Bankruptcy Code | 2 | |||||
| Bankruptcy Court | ||||||
| Bankruptcy Rules | ||||||
| Blackstone | ||||||
| BMA | 3 | |||||
| BMA Approval | 3 | |||||
| Business Day | 3 | |||||
| Cash | 3 | |||||
| Chapter 11 Case | 3 | |||||
| Claim | 3 | |||||
| Claims Objection Deadline | 3 | |||||
| Class | 3 | |||||
| Common Stock Issuance | 3 | |||||
| Conditions | 3 | |||||
| Confirmation | 4 | |||||
| Confirmation Date | ||||||
| Confirmation Hearing | ||||||
| Confirmation Order | ||||||
| Consenting Lenders | ||||||
| Creditors' Committee | 4 | |||||
| D&O Insurance | 4 | |||||
| Page | ||||||
| Debtor | 4 | |||||
| Disbursing Agent | 4 | |||||
| Disclosure Statement | 4 | |||||
1.37 |
Disputed Claim | 4 | ||||
1.38 |
“Disputed ... Claim |
|||||
| 4 | ||||||
1.39 |
Effective Date | 5 | ||||
1.40 |
Equity |
5 | ||||
1.41 |
5 | |||||
1.42 |
||||||
| Executory Contract or Unexpired Lease | 5 | |||||
| Exhibit 5 | ||||||
1.44 |
Extended PIK Loan Repayment | 5 | ||||
1.45 |
Favorable Ruling |
5 | ||||
1.46 |
Favorable Ruling Condition | 6 | ||||
1.47 |
Final Order | 6 | ||||
| General Unsecured Claim | ||||||
| Holdback Amount | ||||||
| Holdback Escrow Account | 6 | |||||
| Holder | 6 | |||||
| Impaired | 7 | |||||
| Indemnification Rights | 7 | |||||
| Indemnitee | 7 | |||||
1.55 |
Indentures | 7 | ||||
| Initial Consenting Lenders | ||||||
| Intercompany Claim | ||||||
| Lien | ||||||
1.58 |
7 | |||||
1.59 |
IRC | 7 | ||||
1.60 |
Lien | 7 | ||||
1.61 |
Liquidity Event | 7 | ||||
1.62 |
Majority Shareholder | 8 | ||||
1.63 |
Management Agreement | 8 | ||||
| Management Incentive Plan | 8 | |||||
| Mutual Release | 8 | |||||
| New Boards | ||||||
| New Intercompany Note | ||||||
ii
| Page | ||||
| 8 | ||||
1.68 New Sub |
8 | |||
1.69 New Sub Escrow Agent |
8 | |||
1.70 New Sub Escrow and Security Agreement |
8 | |||
1.71 New Sub Guarantee |
9 | |||
1.72 Non-Tax Priority Claim |
9 | |||
| 9 | ||||
| 9 | ||||
1.77 Permitted Transfer Date |
9 | |||
| 10 | ||||
| 10 | ||||
| 10 | ||||
| 10 | ||||
| 11 | ||||
| 11 | ||||
| 11 | ||||
| 11 | ||||
| 11 | ||||
| 11 | ||||
| 12 | ||||
| 12 | ||||
| 12 | ||||
| 11 | ||||
1.99 |
13 | |||
1.100 Second Lien OpCo Term Loan |
||||
1.101 Second Lien OpCo Term Loan |
13 | |||
1.102 Second Lien OpCo Term Loan Exchange Portion |
13 | |||
1.103 Second Lien OpCo Term Loan Guarantee |
13 | |||
1.104 Senior Notes Indentures |
13 | |||
1.105 Shareholder Party |
13 | |||
| 13 | ||||
iii
| Page | ||||
1.107 Subordinated Notes Indenture |
14 | |||
1.108 Subscription Agreement |
14 | |||
| 14 | ||||
1.111 Transfer |
14 | |||
| ARTICLE II | ||||
| TREATMENT OF UNCLASSIFIED CLAIMS | ||||
2.1 Administrative Claims |
||||
2.2 Priority Tax Claims |
16 | |||
| ARTICLE III | ||||
| CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS | ||||
3.1 Introduction |
||||
3.2 Summary Of Classes |
16 | |||
3.3 Treatment Of Classes |
17 | |||
3.4 Alternative Treatment |
20 | |||
3.5 Special Provision Regarding Unimpaired Claims |
20 | |||
3.6 Procedures For Resolving Disputed, Contingent, And Unliquidated Claims |
||||
| ARTICLE IV | ||||
| ACCEPTANCE OR REJECTION OF THIS PLAN | ||||
4.1 Classes Entitled To Vote |
20 | |||
4.2 Acceptance By Impaired Classes |
20 | |||
4.3 Elimination Of Classes |
20 | |||
| ARTICLE V | ||||
| MEANS FOR IMPLEMENTATION OF THIS PLAN | ||||
5.1 Continued Legal Existence |
21 | |||
5.2 New Boards Of Directors |
||||
5.3 PIK Loan Restructuring |
21 | |||
5.4 Reinstatement Of Equity Interests And The Common Stock Issuance |
24 | |||
5.5 |
24 | |||
iv
| Page | ||||||
| 5.6 | 24 | |||||
| 5.7 | Section 1145 And Other Exemptions |
25 | ||||
| 5.8 | Additional Share Distribution |
25 | ||||
| 5.9 | Treatment Of The Second Lien OpCo Term Loan, The Tranche A Extended
PIK Loan And The Tranche B
Extended PIK Loan |
|||||
| 5.10 | Treatment Of The |
|||||
| 5.11 | Management Incentive Plan |
|||||
| 5.12 | Corporate Action |
|||||
| 5.13 | Preservation Of Certain Causes Of Action |
|||||
| 5.14 | Effectuating Documents; Further Transactions |
27 | ||||
| 5.15 | Exemption From Certain Transfer Taxes And Recording Fees |
|||||
| 5.16 | Further Authorization |
|||||
| 5.17 | Dissolution Of Creditors’ Committee |
|||||
| ARTICLE VI |
||||||
| PROVISIONS GOVERNING DISTRIBUTIONS |
||||||
| 6.1 | Allowed Claims And Interests |
28 | ||||
| 6.2 | Distributions For Claims Allowed As Of The Effective Date |
|||||
| 6.3 | Payments And Distributions On Disputed Claims |
|||||
| 6.4 | Special Rules For Distributions To Holders Of Disputed Claims |
|||||
| 6.5 | Interest And Penalties On Claims |
|||||
| 6.6 | Delivery Of Distributions And Undeliverable Or Unclaimed Distributions |
29 | ||||
| 6.7 | Withholding And Reporting Requirements |
30 | ||||
| 6.8 | Setoffs |
|||||
| ARTICLE VII |
||||||
| TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES |
||||||
| 7.1 | Assumption Of Executory Contracts And Unexpired Leases |
31 | ||||
| ARTICLE VIII |
||||||
| CONFIRMATION AND CONSUMMATION OF THE PLAN |
||||||
| 8.1 | Conditions To Confirmation |
31 | ||||
| 8.2 | Conditions To Effective Date |
|||||
| 8.3 | Waiver Of Conditions |
|||||
v
| Page | ||||||
| ARTICLE IX |
||||||
| EFFECT OF PLAN CONFIRMATION |
||||||
| 9.1 | Binding Effect |
34 | ||||
| 9.2 | Revesting Of Assets |
34 | ||||
| 9.3 | Releases And Related Matters |
34 | ||||
| 9.4 | Discharge Of The Debtor |
35 | ||||
| 9.5 | Compromises And Settlements |
36 | ||||
| 9.6 | Injunction |
36 | ||||
| 9.7 | Exculpation And Limitation Of Liability |
37 | ||||
| 9.8 | Indemnification Obligations |
38 | ||||
| 9.9 | Term Of Bankruptcy Injunction Or Stays |
39 | ||||
| 9.10 | Entire Agreement |
39 | ||||
| ARTICLE X |
||||||
| RETENTION OF JURISDICTION |
||||||
| 10.1 | Retention Of Jurisdiction |
39 | ||||
| 10.2 | Failure Of Bankruptcy Court To Exercise Jurisdiction |
41 | ||||
| ARTICLE XI |
||||||
| ALLOWANCE AND PAYMENT OF CERTAIN ADMINISTRATIVE CLAIMS |
||||||
| 11.1 | Professional Fee Claims |
41 | ||||
| 11.2 | Other Administrative Claims |
42 | ||||
| ARTICLE XII |
||||||
| MISCELLANEOUS PROVISIONS |
||||||
| 12.1 | Effectuating Documents And Further Transactions |
42 | ||||
| 12.2 | Reservation Of Rights |
43 | ||||
| 12.3 | Corporate Action |
43 | ||||
| 12.4 | Payment Of Statutory Fees |
43 | ||||
| 12.5 | Amendment Or Modification Of This Plan |
43 | ||||
| 12.6 | Severability Of Plan Provisions |
43 | ||||
| 12.7 | Successors And Assigns |
44 | ||||
| 12.8 | Revocation, Withdrawal, Or Non-Consummation |
44 | ||||
| 12.9 | Notice |
44 | ||||
| 12.10 | Governing Law |
45 | ||||
| 12.11 | Tax Reporting And Compliance |
45 | ||||
| 12.12 | Exhibits |
45 | ||||
| 12.13 | Filing Of Additional Documents |
45 | ||||
vi
| Page | ||||||
| 12.14 | Conflicts |
45 | ||||
| 12.15 | Waiver Or Estoppel |
45 | ||||
vii
EXHIBIT
EXHIBIT A
|
AMENDMENT AGREEMENT | |
EXHIBIT B
|
RESTRUCTURING SUPPORT AGREEMENT | |
EXHIBIT C
|
SECOND LIEN OPCO TERM LOAN CREDIT AGREEMENT |
viii
INTRODUCTION
Travelport Holdings Limited (the “Debtor”) and non-debtor Travelport Worldwide Limited jointly
propose the following first amended prepackaged plan of reorganization for the resolution
of the outstanding Claims against and Interests in the Debtor. Reference is made to the Disclosure
Statement, distributed contemporaneously herewith, for a discussion of (i) the Debtor’s history and
business, (ii) a summary and analysis of this Plan, and (iii) certain related matters, including
risk factors relating to the consummation of this Plan. Subject to the terms of the Restructuring
Support Agreement (as defined below) and certain restrictions and requirements set forth in section
1127 of the Bankruptcy Code and Bankruptcy Rule 3019, the Debtor reserves the right to alter,
amend, modify, revoke, or withdraw this Plan prior to its substantial consummation.
ARTICLE I
DEFINED TERMS AND RULES OF INTERPRETATION
Defined Terms. As used herein, capitalized terms shall have the meanings set forth below.
Any term that is not otherwise defined herein, but that is used in the Bankruptcy Code or the
Bankruptcy Rules, shall have the meaning given to that term in the Bankruptcy Code or the
Bankruptcy Rules, as applicable.
1.1 Additional Payment
means a payment, provided for in the Shareholders’ Agreement, to the recipients of the
Common Stock Issuance of 25% of any amount that is permitted to be paid to the Advisors as a lump
sum (i) under the Management Agreement upon an initial public offering or change of control and
(ii) pursuant to the credit agreements and other loan documents.
1.2 1.1 Additional Shares
means that number of shares of common stock of Worldwide that, when issued, will result in the
Holders of Allowed PIK Loan Unsecured Claims holding a total number of shares of Worldwide common
stock equal to 44% of the fully diluted issued and outstanding common stock of Worldwide as of the
Effective Date, subject to dilution by shares issued pursuant to the Management Incentive Plan.
1.3 1.2 Additional Share Distribution
shall have the meaning set forth in Section 5.8 hereof, subject to dilution by the Management
Incentive Plan.
1.4 1.3 Administrative Claim
means an Allowed Claim for costs and expenses of administration of the Chapter 11 Case under
sections 503(b), 507(a)(2) or 507(b) of the Bankruptcy Code, including, but not limited to: (a) any
actual and necessary costs and expenses, incurred on or after the Petition Date, of preserving the
Estate and operating the Debtor and Claims of governmental units for taxes (including tax audit
Claims related to tax years commencing after the Petition Date, but excluding Claims
1
relating to
tax periods, or portions thereof, ending on or before the Petition Date); (b) Professional Fee
Claims; (c) all fees and charges assessed against the Estate under Chapter 123 of Title 28 of the
United States Code; and (d) all other Claims entitled to administrative claim status pursuant to a
Final Order of the Bankruptcy Court.
1.5 Advisors
means (i) Blackstone Management Partners L.L.C. (formerly known as Blackstone Management
Partners V L.L.C.) and TCV VI Management L.L.C., as advisors under the Management Agreement and
(ii) OEP TP, Ltd as an advisor under that certain Investment and Cooperation Agreement, dated as of
December 7, 2006, among OEP TP, Ltd, the Shareholder Party and Worldwide.
1.6 Agreement to Purchase
shall have the meaning set forth in Section 5.3 of this Plan.
1.7 1.4 Allowed
means, with respect to any Claim or Interest, such Claim or Interest or any portion thereof
(a) that has been listed in the Schedules filed by the Debtor (if any) as neither disputed,
contingent nor unliquidated; (b) that has been allowed (i) by a Final Order of the Bankruptcy
Court, (ii) pursuant to the terms of this Plan, (iii) by agreement between the Holder of such Claim
or Interest and the Debtor or Reorganized Debtor; (c) as to which no objection or request for
estimation has been filed on or before the Claims Objection Deadline or the expiration of such
other applicable period fixed by the Bankruptcy Code, Bankruptcy Rules, Bankruptcy Court or this
Plan; or (d) as to which any objection has been settled, waived, withdrawn or denied by a Final
Order or in accordance with this Plan.
1.8 1.5 “Allowed ... Claim”
means an Allowed Claim of the particular type or Class described.
1.9 1.6 “Allowed . . . Interest”
means an Allowed Interest of the particular type of Class described.
1.10 1.7 Amended and Restated PIK Loan Credit Agreement
means the PIK Loan Credit Agreement, as amended and restated, in substantially the form
attached as an exhibit to the Amendment Agreement.
1.11 1.8 Amendment Agreement
means that certain agreement among the Debtor, Credit Suisse, Cayman Islands branch, as
administrative agent, and certain lenders from time to time party thereto, to amend the PIK Loan
Credit Agreement, in substantially the form attached hereto as Exhibit A.
1.12 1.9 Avoidance Action
means any claim or cause of action of the Estate arising out of or maintainable pursuant to
sections 510, 541, 542, 543, 544, 545, 547, 548, 549, 550, 551, or 553 of the Bankruptcy Code or
under any other similar applicable law, regardless of whether or not such action has been commenced
prior to the Effective Date.
1.13 1.10 Bankruptcy Code
means title 11 of the United States Code, as now in effect or hereafter amended.
2
1.14 1.11 Bankruptcy Court
means the United States Bankruptcy Court for the Southern District of New York, or any other
court with jurisdiction over the Chapter 11 Case.
1.15 1.12 Bankruptcy Rules
means the Federal Rules of Bankruptcy Procedure and the local rules of the Bankruptcy Court,
as now in effect or hereafter amended.
1.16 1.13 Blackstone
means Blackstone Capital Partners (Cayman) V L.P.; Blackstone Capital Partners (Cayman) V-A
L.P.; BCP (Cayman) V-S L.P.; Blackstone Family Investment Partnership (Cayman) V L.P.; Blackstone
Family Investment Partnership (Cayman) V-SMD L.P.; Blackstone Participation Partnership (Cayman) V
L.P.; and BCP V Co-Investors (Cayman) L.P. and each of their successors and assigns with respect to
their interests in TDS Investor (Cayman) L.P.
1.17 1.14 BMA
means the Bermudan Monetary Authority.
1.18 1.15 BMA Approval
means the approval by the BMA, as required by Bermuda law, of the recipients of Worldwide
shares.
1.19 1.16 Business Day
means any day, other than a Saturday, Sunday, or “legal holiday” (as defined in Bankruptcy
Rule 9006(a)).
1.20 1.17 Cash
means legal tender of the United States of America and equivalents thereof.
1.21 1.18 Chapter 11 Case
means the case under Chapter 11 of the Bankruptcy Code commenced by the Debtor in the
Bankruptcy Court.
1.22 1.19 Claim
means a “claim” as defined in section 101(5) of the Bankruptcy Code.
1.23 1.20 Claims Objection Deadline
means that day which is one hundred twenty (120) days after the Effective Date, as the same
may be from time to time extended by the Bankruptcy Court without further notice to
parties-in-interest.
1.24 1.21 Class
means a category of Claims or Interests, as described in Article III hereof.
1.25 1.22 Common Stock Issuance
shall have the meaning set forth in Section 5.3 hereof.
means the issuance, on a Pro Rata basis, of 40% of the fully diluted issued and
outstanding common stock of Worldwide (subject to dilution by the Management Incentive Plan) to the
Holders of PIK Loan Unsecured Claims.
1.26 1.23 Conditions
shall have the meaning set forth in Section 5.3 hereof.
3
1.27 1.24 Confirmation
means the confirmation of this Plan by the Bankruptcy Court under section 1129 of the
Bankruptcy Code.
1.28 1.25 Confirmation Date
means the date on which the Bankruptcy Court enters the Confirmation Order on the docket of
the Bankruptcy Court.
1.29 1.26 Confirmation Hearing
means the hearing held by the Bankruptcy Court pursuant to section 1128 of the Bankruptcy Code
to consider confirmation of this Plan, as such hearing may be adjourned or continued from time to
time.
1.30 1.27 Confirmation Order
means the order of the Bankruptcy Court confirming this Plan pursuant to section 1129 of the
Bankruptcy Code.
1.31 1.28 Consenting Lenders
means the Holders of PIK Loan Unsecured Claims that are parties to the Restructuring Support
Agreement.
1.32 1.29 Creditors’ Committee
means the statutory committee of unsecured creditors, if any, appointed in the Chapter 11 Case
pursuant to section 1102 of the Bankruptcy Code.
1.33 1.30 D&O Insurance
means insurance maintained by OpCo which covers, among others, the directors, officers and
managing members of the Debtor.
1.34 1.31 Debtor
means Travelport Holdings Limited.
1.35 1.32 Disbursing Agent
means the Reorganized Debtor, or any party designated by the Reorganized Debtor, with the
consent of the Requisite Consenting Lenders, to serve as disbursing agent under this Plan.
1.36 1.33 Disclosure Statement
means the disclosure statement (including all appendices, exhibits and schedules thereto)
relating to this Plan, as amended, modified or supplemented from time to time, and distributed
contemporaneously herewith in accordance with section 1125 of the Bankruptcy Code and Bankruptcy
Rule 3017.
1.37 1.34 Disputed Claim
means any Claim (a) as to which the Debtor has interposed an objection or request for
estimation in accordance with this Plan, the Bankruptcy Code and the Bankruptcy Rules, or that is
otherwise disputed by the Debtor, the Reorganized Debtor, or other party-in-interest in accordance
with applicable law, which objection has not been withdrawn or determined by a Final Order, (b)
designated in the Debtor’s Schedules, if any, as contingent, unliquidated, or disputed, (c) which
amends a Claim designated in the Debtor’s Schedules, if any, as contingent, unliquidated, or
disputed, or (d) prior to it having become an Allowed Claim.
1.38 1.35 “Disputed ... Claim”
means a Disputed Claim of the type described.
4
1.39 1.36 Effective Date
means the first Business Day after which all provisions, terms and conditions specified in
Section 8.2 have been satisfied or waived pursuant to Section 8.3, and this Plan is substantially
consummated as such term is defined in section 1101(2) of the Bankruptcy Code.
1.40 1.41 Equity Interest
means any Interest arising from or on behalf of the equity of the Debtor outstanding
immediately prior to the Petition Date, including treasury stock and all options, warrants, calls,
rights, puts, awards, commitments, or any other agreements of any character to acquire such equity.
1.41 1.42 Estate
means the estate of the Debtor created under section 541 of the Bankruptcy Code.
1.42 1.43 Executory Contract or Unexpired Lease
means any executory contracts or unexpired leases to which the Debtor is a party.
1.43 1.44 Exhibit
means an exhibit annexed to either this Plan or as an appendix to the Disclosure Statement.
1.44 Extended PIK Loan Repayment
means the indefeasible repayment in full and in Cash by the Reorganized Debtor of the
Tranche A Extended PIK Loan and the Tranche B Extended PIK Loan.
1.45 Favorable Ruling
means a court of competent jurisdiction has entered a judgment that none of the
transactions related to the $135 million of the Second
5
Lien OpCo Term Loan following its issuance
that are contemplated by the Restructuring Support Agreement violate or give rise to an event of
default under the Indentures.
1.46 Favorable Ruling Condition
means that a Favorable Ruling has become a final order, in full force and effect without
reversal, modification or stay, not subject to a pending motion for reconsideration, revocation,
reversal, modification, stay or appeal and the period for an appeal has expired; provided, however,
that if the Favorable Ruling has not become a final order because a notice of appeal has been
timely filed and the parties are not stayed or enjoined from taking certain actions contemplated
hereby including executing the Subscription Agreement and consummating the transactions
contemplated thereby, the condition requiring a final order shall only be deemed satisfied if
Travelport Limited determines in its sole and absolute commercially reasonable discretion that the
effect of any appeal or other related proceeding would not be adverse to the business, operations,
property, condition (financial or otherwise) or prospects of Travelport Limited or its affiliates;
provided, further, the Favorable Ruling Condition may be waived by Travelport Limited in its
absolute and sole discretion.
1.47 1.45 Final Order
means an order or judgment of the Bankruptcy Court, or other court of competent jurisdiction,
as entered on the docket in the Chapter 11 Case, or the docket of any such other court, the
operation or effect of which has not been reversed, stayed, modified, or amended, and as to which
order or judgment (or any reversal, stay, modification, or amendment thereof) (a) the time to
appeal, seek leave to appeal or certiorari, or request reargument or further review or rehearing
has expired and no appeal, petition for leave to appeal or certiorari, or request for reargument or
further review or rehearing has been timely filed, or (b) any appeal that has been or may be taken
or any petition for certiorari or leave to appeal or request for reargument or further review or
rehearing that has been or may be filed has been resolved by the highest court to which the order
or judgment was appealed, from which certiorari or leave to appeal was sought, or to which the
request was
made, and no further appeal or petition for certiorari or leave for appeal or request for
reargument or further review or rehearing has been or can be taken or granted.
1.48/ 1.46 General Unsecured Claim
means a Claim that is not an Administrative Claim, Priority Tax Claim, Non-Tax Priority Claim,
PIK Loan Unsecured Claim, or Intercompany Claim.
1.49 1.47 Holdback Amount
means the amount equal to 20% of fees billed to the Debtor in a given month that was retained
by the Debtor as a holdback on payment of a Professional Fee Claim.
1.50 1.48 Holdback Escrow Account
means the escrow account established by the Disbursing Agent into which Cash equal to the
Holdback Amount shall be deposited on the Effective Date for the payment of Allowed Professional
Fee Claims to the extent not previously paid or disallowed.
1.51 1.49 Holder
means a holder of a Claim or Interest, as applicable.
6
1.52 1.50 Impaired
means, when used in reference to a Claim or Interest, a Claim or Interest that is impaired
within the meaning of section 1124 of the Bankruptcy Code.
1.53 1.51 Indemnification Rights
means any obligations of the Debtor to indemnify (i) its present and former officers and
directors pursuant to the Debtor’s organizational documents, or pursuant to any applicable law or
specific agreement (other than the Restructuring Support Agreement) in respect of any claims,
demands, suits, causes of action or proceedings against such an officer or director based upon any
act or omission related to its service with, for or on behalf of the Debtor, and (ii) the
Shareholder Party for out-of-pocket costs and expenses, including reasonable attorney’s fees,
incurred by it on and after the Effective Date to enforce the releases and exculpation provisions
granted to it as a Released Party under Sections 9.3, 9.6, and 9.7 hereof, except for acts or
omissions that are the result of the Shareholder Party’s gross negligence or willful misconduct;
provided that, for the sake of clarity, the Shareholder Party shall not be entitled to recover for
any of its investment losses, if any, related to any investment made in the Debtor prior to the
Petition Date, hereunder or for any underlying liability.
1.54 1.52 Indemnitee
means (i) all present and former directors, officers, employees, agents or representatives of
the Debtor (in their capacity as such) and (ii) the Shareholder Party, in each case who are
entitled to assert Indemnification Rights.
1.55 Indentures
means, collectively, the Senior Notes Indentures and the Subordinated Notes
Indenture.
1.56 1.53 Initial Consenting Lenders
means Angelo, Gordon & Co. and Q Investments, L.P., in their capacities as Holders of PIK Loan
Unsecured Claims and as parties to the Restructuring Support Agreement.
1.57 1.54 Intercompany Claim
means (a) any account reflecting intercompany book entries by the Debtor with respect to any
non-Debtor affiliate or (b) any Claim that is not reflected in such book entries and is held by the
Debtor against any non-Debtor affiliate.
1.58 1.55 Interest
means the legal, equitable, contractual, and other rights of any Person with respect to any
capital stock or other ownership interest in the Debtor, whether or not transferable, and any
option, warrant, or right to purchase, sell, or subscribe for an ownership interest or other equity
security in the Debtor.
1.59 1.56 IRC
means the Internal Revenue Code of 1986, as amended.
1.60 1.57 Lien
shall mean any lien, security interest, pledge, title retention agreement, encumbrance,
charge, mortgage or hypothecation, other than, in the case of securities and any other equity
ownership interests, any restrictions imposed by applicable United States or foreign securities
laws.
1.61 1.58 Liquidity Event
means if (i) all amounts owing under the Amended and Restated PIK Loan Credit Agreement are
paid in full in Cash or (ii) the
7
1.62 1.59 Majority Shareholder
means, collectively, Blackstone, TCV VI (Cayman), L.P., TCV Member Fund (Cayman), L.P., OEP
TP, Ltd. and any person which directly or indirectly controls, is controlled by or is under common
control with each such entity.
1.63 Management Agreement
means that certain Transaction Monitoring Fee Agreement (as amended or modified from time
to time), dated as of August 23, 2006, among OpCo, Blackstone Management Partners L.L.C. (formerly
known as Blackstone Management Partners V L.L.C.) and TCV VI Management L.L.C.
1.64 1.60 Management Incentive Plan
means a management incentive plan for management of one or more direct or indirect
subsidiaries of Travelport Limited, on terms approved by the board of directors of Worldwide and at
least one independent director designated by holders of shares distributed in the Common Stock
Issuance, of up to 5% of the shares of common stock of Worldwide on a fully diluted basis;
provided that the shares issued pursuant to the Management Incentive Plan will
dilute on a Pro Rata basis all outstanding shares of common stock in Worldwide.
1.65 1.61 Mutual Release
means a release consistent with the releases provided for in Section 9.3 of this Plan to be
filed as part of the Plan Supplement in form and substance reasonably acceptable to the Requisite
Consenting Lenders, the Debtor and Blackstone.
1.66 1.62 New Boards
means the initial board of directors of each of the Reorganized Debtor, Worldwide and
Travelport Limited.
1.67 1.63 New Intercompany Note
means that certain subordinated promissory note issued by Travelport Limited to OpCo as
consideration for, and of equal face value to, the Second Lien OpCo Term Loan, in form and
substance reasonably acceptable to the Requisite Consenting Lenders as set forth in Section 5.3 of
this Plan.
1.68 1.64 New Sub
means Travelport Guarantor LLC, a newly formed unrestricted subsidiary of Travelport Limited,
the organizational documents of which shall be set forth in the Plan Supplement and shall (i)
provide for the appointment of at least one independent director that is reasonably acceptable to
the Requisite Consenting Lenders, and (ii) otherwise be in form and substance reasonably acceptable
to the Requisite Consenting Lenders and the Shareholder Party.
1.69
1.65 New Sub Escrow Agent
means the party, selected by the Requisite Consenting Lenders and reasonably acceptable to the
Debtor, responsible for administering the third party escrow account established pursuant
to hold the New Sub Investment the New Sub Escrow and Security Agreement.
1.70 New Sub Escrow and Security Agreement
means an escrow and security agreement between the New Sub and the holders of the Tranche
A Extended PIK
8
Loan, pursuant to which the New Sub Escrow Agent will hold the Second Lien OpCo Term
Loan for the benefit of the holders of the Tranche A Extended PIK Loan in the amount of the
obligations outstanding thereunder, which shall be (i) entered into upon the occurrence of the
Permitted Transfer Date, (ii) in form and substance reasonably acceptable to the Requisite
Consenting Lenders and the Shareholder Party, and (iii) set forth in the Plan Supplement.
1.71 1.66 New Sub Guarantee
means the a guarantee to be issued by the New Sub in favor of the holders of
the Tranche A Extended PIK Loan in the amount of the obligations outstanding thereunder, which
guarantee shall be (i) entered into upon the occurrence of the Permitted Transfer Date, (ii)
in form and substance reasonably acceptable to the Requisite Consenting Lenders and the
Shareholder Party and shall be set forth in the Plan Supplement.
1.72 1.69 Non-Tax Priority Claim
means a Claim, other than an Administrative Claim or Priority Tax Claim, which is entitled to
priority in payment pursuant to section 507(a) of the Bankruptcy Code.
1.73 1.70 OpCo
means Travelport LLC.
1.74 1.71 OpCo Credit Facility
means that certain existing third amended and restated credit agreement, as amended, among
Travelport LLC, as borrower, Travelport Limited, as parent guarantor, Waltonville
Limited, as intermediate parent guarantor, UBS AG, Stamford Branch, as administrative agent and L/C
issuer, UBS Loan Finance LLC, as swing line lender, and the other agents and other lenders party
thereto.
1.75 1.72 OpCo Credit Facility Amendment
means the amendment to the OpCo Credit Facility which provides the relief necessary to permit
the PIK Loan Restructuring in form and substance reasonably satisfactory to the Requisite
Consenting Lenders.
1.76 1.73 Outstanding PIK Loan Balance
means the total debt outstanding under the PIK Loan as of the Petition Date, including all
accrued and unpaid interest (calculated in accordance with the terms of the PIK Loan Credit
Agreement) and other fees and charges.
1.77 Permitted Transfer Date
means the earlier of (i) the date on which the Favorable Ruling Condition is satisfied or
(ii) the date on which Travelport Limited, in
9
its absolute and sole discretion, at any time prior
to the satisfaction of the Favorable Ruling Condition, elects to consummate the Transfer.
1.78 1.74 Person
means an individual, corporation, partnership, joint venture, association, joint stock
company, limited liability company, limited liability partnership, trust, estate, unincorporated
organization, or other entity.
1.79 1.75 Petition Date
means the date on which the Debtor filed its petition for relief commencing its Chapter 11
Case.
1.80 1.76 PIK Loan
means the term loan, in aggregate amount of $715 million (principal including accrued
interest) as of September 30, 2011 issued by the Debtor pursuant to the PIK Loan Credit Agreement.
1.81 1.77 PIK Loan Cash Distribution
has the meaning set forth in Section 5.3 hereof.
1.82 1.78 PIK Loan Credit Agreement
means that certain credit agreement among the Debtor, Credit Suisse, Cayman Islands branch, as
administrative agent, and certain lenders from time to time party thereto, dated as of March 27,
2007 and as amended as of December 4, 2008.
1.83 1.79 PIK Loan Restructuring
has the meaning set forth in Section 5.3 hereof.
1.84 1.80 PIK Loan Restructuring Documents
means all documents relating to the PIK Loan Restructuring, including, without limitation, the
Restructuring Support Agreement and all documents referenced therein, but not including this Plan
or the Disclosure Statement.
1.85 1.81 PIK Loan Unsecured Claim
means any Claim arising from or relating to the PIK Loan.
1.86 1.82 Plan
means this Chapter 11 plan of reorganization, including the Exhibits and all supplements,
appendices, and schedules hereto, either in its current form or as the same may be altered,
amended, or modified from time to time.
1.87 1.83 Plan Supplement
means the compilation of documents that the Debtor shall file with the Bankruptcy Court on or
before the date that is five (5) days prior to the Confirmation Hearing.
10
1.88 1.86 Priority Tax Claim
means a Claim of a governmental unit of the kind specified in sections 502(i) and 507(a)(8) of
the Bankruptcy Code.
1.89 1.87 Pro Rata
means, as applicable, the proportion that an Allowed Claim in a particular Class bears to the
aggregate amount of all Allowed Claims in that Class, or the proportion that all Allowed Claims in
a particular Class bear to the aggregate amount of Allowed Claims in such Class and other Classes
entitled to share in the same recovery under this Plan.
1.90 1.88 Professional
means (a) any professional employed in this Chapter 11 Case pursuant to sections 327, 328 or
1103 of the Bankruptcy Code or otherwise and (b) any professional or other entity seeking
compensation or reimbursement of expenses in connection with the Chapter 11 Case pursuant to
section 503(b)(4) of the Bankruptcy Code.
1.91 1.89 Professional Fee Claim
means an Administrative Claim of a Professional for compensation for services rendered or
reimbursement of costs, expenses, or other charges incurred on or after the Petition Date and prior
to and including the Effective Date.
1.92 1.90 Registration Rights Agreement
means that certain registration rights agreement among Worldwide and the shareholders referred
to therein to be filed as part of the Plan Supplement in form and substance reasonably acceptable
to Worldwide, the Shareholder Party, Blackstone and the Requisite Consenting Lenders.
1.93 1.91 Released Party
means each of (a) the Debtor and the Reorganized Debtor, (b) the current and former directors
and officers of the Debtor; (c) the
11
Creditors’ Committee, if any, and the current and former
members thereof, in their capacity as such; (d) Holders of direct Equity Interests in the Debtor
that vote to accept this Plan and Holders of indirect Equity Interests that execute a Mutual
Release; (e) Holders of PIK Loan Unsecured Claims that voted to accept this Plan; (f) each
Consenting Lender to the extent that such Consenting Lender voted to accept this Plan; (g) the
Shareholder Party so long as it executes a Mutual Release; and (h) with respect to each of the
foregoing Persons in clauses (a) through (g) (but, so as to avoid duplication, without including
such persons identified in (a) through (f)), such Person’s subsidiaries, affiliates, members,
officers, directors, agents, financial advisors, accountants, investment bankers, consultants,
attorneys, employees, partners, and representatives, in each case only in their capacity as such.
1.94 1.92 Reorganized Debtor
means the successor to the Debtor on and after the Effective Date.
1.95 1.93 Requisite Consenting Lenders
means, at the time of determination, Consenting Lenders holding a majority in principal amount
of the PIK Loan Unsecured Claims; provided, however, that in determining the
Requisite Consenting Lenders, any PIK Loan Unsecured Claims held by the Shareholder Party,
Blackstone or the Debtor shall be excluded.
1.96 1.94 Restructuring Support Agreement
means that certain Travelport Holdings Limited Restructuring Support Agreement and attached
term sheet dated as of September 17, 20112011, as amended on
September 28, 2011, by and among the Debtor, Worldwide, the Shareholder Party and the
Consenting Lenders, attached hereto as Exhibit B.
1.97 1.95 Retained Actions
means all claims, causes of action, rights of action, suits, demands, Liens, indemnities,
guarantees, obligations, liabilities, judgments, accounts, defenses, offsets, powers, privileges,
licenses, franchises and proceedings of any kind whatsoever, known, unknown, contingent, or
non-contingent, matured or unmatured, suspected or unsuspected, liquidated or unliquidated,
disputed or undisputed, secured or unsecured, assertable directly or derivatively, whether arising
before, on, or after the Petition Date, in contract or in tort, in
law or in equity, which the Debtor or the Debtor’s Estate may hold against any Person, including,
without limitation, (a) claims and causes of action brought prior to the Effective Date; (b) all
Avoidance Actions; (c) any right of setoff, counterclaim, or recoupment and any claim or cause of
action on contracts or for breaches of duties imposed by law or in equity; (d) the right to object
to Claims (other than the PIK Loan Unsecured Claims) or Interests; (e) any claim or cause of action
or defense including fraud, mistake, duress, and usury and any other defenses set forth in section
558 of the Bankruptcy Code; (f) any state law fraudulent transfer claim; and (g) any such claims,
causes of action, rights of action, suits or proceedings listed in the Disclosure Statement or any
Schedules filed by the Debtor in this case, if any; provided, however, that
Retained Actions shall not include those claims, causes of action, rights of action, suits and
proceedings, whether in law or in equity, whether known or unknown, released under Article IX
herein.
12
1.98 1.96 Schedules
means the schedules, statements, and lists, if any, filed by the Debtor with the Bankruptcy
Court pursuant to Bankruptcy Rule 1007, as may be amended or supplemented from time to time.
1.99 1.97 SEC
means the U.S. Securities Exchange Commission.
1.100 1.98 Second Lien OpCo Term Loan
means the new term loan, in an aggregate principal amount of $342.5 million, to be issued by
OpCo pursuant to the Second Lien OpCo Term Loan Credit Agreement, substantially contemporaneously
with the consummation of this Plan.
1.101 1.99 Second Lien OpCo Term Loan Credit
Agreement
means the credit agreement governing the Second Lien OpCo Term Loan, in substantially the form
attached hereto as Exhibit C.
1.102 1.100 Second Lien OpCo Term Loan
Exchange Portion
has the meaning set forth in Section 5.3 hereof.
1.103 1.101 Second Lien OpCo Term Loan
Guarantee
means the guarantee issued by certain affiliates of the Debtor, which entities are guarantors
of the OpCo Credit Facility, in favor of the holders of the Second Lien OpCo Term Loan, which
guarantee shall be in form and substance reasonably acceptable to the Requisite Consenting Lenders
and the Shareholder Party and shall be set forth in Plan Supplement.
1.104 Senior Notes Indentures
means (i) the Indenture, dated as of August 23, 2006, by and among OpCo, the guarantors
named therein, including Travelport Limited, and the Bank of Nova Scotia Trust Company of New York,
as trustee thereunder and (ii) the Indenture, dated as of August 18, 2010, by and among OpCo,
Travelport Inc., the guarantors named therein, including Travelport Limited, and The Bank of Nova
Scotia Trust Company of New York, as trustee thereunder.
1.105 1.102 Shareholder Party
means TDS Investor (Cayman) L.P.
1.106 1.103 Shareholders’ Agreement
means that certain shareholders’ agreement among Worldwide, New Sub, TDS
Investor (Cayman) L.P., Blackstone andTravelport NewCo, the Shareholder
Party, Blackstone and as to certain provisions, Blackstone Management Partners L.L.C. (formerly
known as Blackstone Management Partners V L.L.C.), the Holders of PIK Loan Unsecured
Claims and all other Persons party thereto to be filed as part of the Plan
Supplement in form and substance reasonably acceptable to Worldwide, the Shareholder Party,
Blackstone and the Requisite Consenting Lenders, which will provide for, among other
items, the Additional Payment.
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1.107 Subordinated Notes Indenture
means the Indenture, dated as of August 23, 2006, by and among OpCo, the guarantors
named therein, including Travelport Limited, and the Bank of Nova Scotia Trust Company of New York,
as trustee thereunder.
1.108 Subscription Agreement
means a subscription agreement to be entered into on the Permitted Transfer Date,
pursuant to the terms of the Restructuring Support Agreement, providing for the transfer by
Travelport Limited of the note representing $135 million aggregate principal amount of the Second
Lien OpCo Term Loan plus accrued and unpaid interest (and interest paid in kind)
thereon to the New Sub as an investment in exchange for additional equity interests in the New Sub,
to be set forth in the Plan Supplement.
1.109 1.106 Tranche A Extended PIK Loan
means the $135 million junior tranche of the PIK Loan issued pursuant to the Amended and
Restated PIK Loan Credit Agreement.
1.110 1.107 Tranche B Extended PIK Loan
means the approximately $287.5 million senior tranche of the PIK Loan issued pursuant to the
Amended and Restated PIK Loan Credit Agreement.
1.111 Transfer
means the causing by the Reorganized Debtor on the Permitted Transfer Date of Travelport
Limited to enter into the Subscription Agreement with the New Sub and the execution by Travelport
Limited and the New Sub of the Subscription Agreement and other related transactions and
documents.
1.112 1.108 Travelport NewCo
means Travelport Intermediate Limited to be created by the Shareholder Party on or prior to
the Effective Date.
1.113 1.109 Unclassified Claims
means Administrative Claims and Priority Tax Claims.
1.114 1.110 Unimpaired
means a Claim or Interest that is not impaired within the meaning of section 1124 of the
Bankruptcy Code.
1.115 1.111 Worldwide
means Travelport Worldwide Limited, the direct parent of the Debtor.
Rules Of Interpretation And Computation Of Time. For purposes of this Plan, unless otherwise
provided herein: (a) whenever from the context it is appropriate, each term, whether stated in the
singular or the plural, shall include both the singular and the plural; (b) unless otherwise
provided in this Plan, any reference in this Plan to a contract, instrument, release, or other
agreement or document being in a particular form or on particular terms and conditions means that
such document shall be substantially in such
14
form or substantially on such terms and conditions;
(c) any reference in this Plan to an existing document or schedule filed or to be filed means such
document or schedule, as it may have been or may be amended, modified, or supplemented pursuant to
this Plan; (d) any reference to an entity as a Holder of a Claim or Interest includes that entity’s
successors
and assigns; (e) all references in this Plan to Sections and Articles are references to
Sections and Articles of or to this Plan; (f) the words “herein,” “hereunder,” and “hereto” refer
to this Plan in its entirety rather than to a particular portion of this Plan; (g) captions and
headings to Articles and Sections are inserted for convenience of reference only and are not
intended to be a part of or to affect the interpretation of this Plan; (h) subject to the
provisions of any contract, certificates of incorporation, by-laws, instrument, release, or other
agreement or document entered into in connection with this Plan, the rights and obligations arising
under this Plan shall be governed by, and construed and enforced in accordance with, federal law,
including the Bankruptcy Code and Bankruptcy Rules; (i) the rules of construction set forth in
section 102 of the Bankruptcy Code shall apply; (j) in computing any period of time prescribed or
allowed by this Plan, the provisions of Bankruptcy Rule 9006(a) shall apply; and (k) “including”
means “including without limitation.”
Exhibits. All Exhibits are incorporated into and are a part of this Plan as if set forth in
full herein, and, to the extent not annexed hereto, such Exhibits shall be filed with the
Bankruptcy Court on or after the Petition Date, but in any event, no later than the date of filing
of the Plan Supplement. Holders of Claims and Interests may obtain a copy of the Exhibits upon
written request to the Debtor. Upon their filing, the Exhibits may be inspected in the office of
the clerk of the Bankruptcy Court or its designee (i) during normal business hours; (ii) on the
Bankruptcy Court’s website at http://www.nysb.uscourts.gov (registration required) or (iii) at our
noticing agent’s website at www.travelportinfo.com. The documents contained in the Exhibits shall
be approved by the Bankruptcy Court pursuant to the Confirmation Order.
ARTICLE II
TREATMENT OF UNCLASSIFIED CLAIMS
In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims and
Priority Tax Claims are not classified and are not entitled to vote on this Plan.
2.1 Administrative Claims. On, or as soon as reasonably practicable after, the later of (a) the Effective Date, (b) the
date on which an Administrative Claim becomes an Allowed Administrative Claim, or (c) the date on
which an Allowed Administrative Claim becomes payable under any agreement relating thereto, each
Holder of such Allowed Administrative Claim shall receive, in full and final satisfaction,
settlement, release, and discharge of, and in exchange for, such Allowed Administrative Claim, Cash
equal to the unpaid portion of such Allowed Administrative Claim.
15
Notwithstanding the foregoing,
(y) any Allowed Administrative Claim based on a liability incurred by the Debtor in the ordinary
course of business during the Chapter 11 Case may be paid in the ordinary course of business in
accordance with the terms and conditions of any agreement relating thereto and (z) any Allowed
Administrative
Claim may be paid on such other terms as may be agreed to between the Holder of such Claim and the
Debtor or the Reorganized Debtor.
2.2 Priority Tax Claims. On, or as soon as reasonably practicable after, the later of (a) the Effective Date or (b) the
date on which a Priority Tax Claim becomes an Allowed Priority Tax Claim, in the sole discretion of
the Debtor, each Holder of an Allowed Priority Tax Claim shall receive, in full and final
satisfaction, settlement, release, and discharge of, and in exchange for, such Allowed Priority Tax
Claim, (i) Cash equal to the unpaid portion of such Holder’s Allowed Priority Tax Claim, (ii)
treatment in any other manner such that such Holder’s Allowed Priority Tax Claim shall not be
Impaired pursuant to section 1124 of the Bankruptcy Code, including payment in accordance with the
provisions of section 1129(a)(9)(C) of the Bankruptcy Code over a period of not later than five
years from the Petition Date, or (iii) such other treatment as to which the Debtor or the
Reorganized Debtor and such Holder shall have agreed upon in writing.
ARTICLE III
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
3.1 Introduction.
Pursuant to section 1122 of the Bankruptcy Code, set forth below is a designation of Classes
of Claims against and Interests in the Debtor. In accordance with section 1123(a)(1) of the
Bankruptcy Code, Administrative Claims and Priority Tax Claims have not been classified, and the
respective treatment of such Unclassified Claims is set forth in Article II of this Plan.
A Claim or Interest is placed in a particular Class only to the extent that the Claim or
Interest falls within the description of that Class and is classified in other Classes to the
extent that any portion of the Claim or Interest falls within the description of such other
Classes. A Claim is also placed in a particular Class for the purpose of receiving distributions
pursuant to this Plan only to the extent that such Claim is an Allowed Claim in that Class and such
Claim has not been paid, released, or otherwise settled prior to the Effective Date.
3.2 Summary Of Classes.
| Class | Impaired/Unimpaired; Entitlement To Vote | |
Class 1 — Non-Tax Priority Claims
|
Unimpaired — Deemed to have accepted this Plan and not entitled to vote | |
Class 2 — PIK Loan Unsecured Claims
|
Impaired — Entitled to vote |
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| Class | Impaired/Unimpaired; Entitlement To Vote | |
Class 3 — General Unsecured Claims
|
Unimpaired — Deemed to have accepted this Plan and not entitled to vote | |
Class 4 — Intercompany Claims
|
Unimpaired — Deemed to have accepted this Plan and not entitled to vote | |
Class 5 — Equity Interests
|
Impaired — Entitled to vote |
3.3 Treatment Of Classes.
(a) Class 1 — Non-Tax Priority Claims
(i) Claims In Class: Class 1 consists of all Non-Tax Priority Claims against
the Debtor.
(ii) Treatment: On, or as soon as reasonably practicable after, (A) the
Effective Date if such Non-Tax Priority Claim is an Allowed Non-Tax Priority Claim
on the Effective Date or (B) the date on which such Non-Tax Priority Claim becomes
an Allowed Non-Tax Priority Claim, each Holder of an Allowed Class 1 Non-Tax
Priority Claim shall receive, in full and final satisfaction, release, and
discharge of, and in exchange for, such Allowed Non-Tax Priority Claim, Cash equal
to the unpaid portion of such Allowed Non-Tax Priority Claim.
(iii) Voting: Class 1 is an Unimpaired Class, and the Holders of Allowed
Class 1 Non-Tax Priority Claims are conclusively deemed to have accepted this Plan
pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of
Class 1 Non-Tax Priority Claims are not entitled to vote to accept or reject this
Plan.
(b) Class 2 — PIK Loan Unsecured Claims
(i) Claims In Class: Class 2 consists of all PIK Loan Unsecured Claims
against the Debtor.
(ii) Allowance Of PIK Loan Unsecured Claims: The PIK Loan Unsecured Claims
shall be Allowed in the aggregate amount of $715 million plus such other amounts
that accrue thereon from September
30, 2011 through the Effective Date. For the avoidance of doubt, the Allowed
PIK Loan Unsecured Claims shall not be subject to any avoidance, reduction, setoff,
offset, recharacterization, subordination (equitable or
17
contractual or otherwise),
counter-claim, defense, disallowance, impairment, objection or any challenges under
applicable law or regulation.
(iii) Treatment: Each Holder of an Allowed Class 2 PIK Loan Unsecured Claim,
in full and final satisfaction, settlement, release, and discharge of, and in
exchange for, such Allowed PIK Loan Unsecured Claim, shall receive (x) on the
Effective Date, such Holder’s Pro Rata share of (A) the PIK Loan Cash Distribution
to reduce the Outstanding PIK Loan Balance, (B) the Second Lien OpCo Term Loan
Exchange Portion, (C) the Effective Date Common Stock
DistributionIssuance, (D) the
Tranche A Extended PIK Loan, and (E) the Tranche B Extended PIK Loan;
(y) commencing on March 31, 2012, shares of Worldwide pursuant to the
Post-Effective Date Common Stock Distribution; and (zand
(y) on October 1, 2013, if a Liquidity Event has not yet occurred, such
Holder’s Pro Rata share of the Additional Share Distribution. In connection with
the Common Stock Issuance and the Additional Share Distribution, each Holder of an
Allowed PIK Loan Unsecured Claim shall automatically become and be deemed to be a
party to the Shareholders’ Agreement regardless of whether such Holder votes to
accept or reject this Plan or executes the Shareholders’ Agreement. For the
avoidance of doubt, in the event a Holder of an Allowed PIK Loan Unsecured Claim
receives alternative treatment pursuant to Section 3.4 of this Plan, the portion of
the recovery such Holder is entitled to under this section that it has elected not
to receive shall be reallocated to the other Holders of Allowed PIK Loan Unsecured
Claims on a Pro Rata basis.
(iv) Voting: Class 2 is Impaired. Pursuant to section 1126 of the Bankruptcy
Code, each Holder of an Allowed Class 2 PIK Loan Unsecured Claim is entitled to
vote to accept or reject this Plan.
(c) Class 3 — General Unsecured Claims
(i) Claims In Class: Class 3 consists of all General Unsecured Claims against
the Debtor.
(ii) Treatment: On the later of the Effective Date and the date on which such
General Unsecured Claims are Allowed, or, in each case, as soon thereafter as
practicable, each Holder of an Allowed General Unsecured Claim in Class 3 shall be
paid in full and final satisfaction of
such Holder’s Allowed General Unsecured Claim in Cash. A General Unsecured
Claim that is not due and payable on or before the Effective Date shall be paid
thereafter (A) in the ordinary course of business in accordance with the terms of
any agreement that governs such General Unsecured
18
Claim, or (B) in accordance with
the course of practice between the Debtor and such Holder with respect to such
General Unsecured Claim.
(iii) Voting: Class 3 is an Unimpaired Class, and the Holders of Allowed
Class 3 General Unsecured Claims are conclusively deemed to have accepted this Plan
pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of
Class 3 General Unsecured Claims are not entitled to vote to accept or reject this
Plan.
(d) Class 4 — Intercompany Claims
(i) Claims In Class: Class 4 consists of all Intercompany Claims against the
Debtor.
(ii) Treatment: On the later of the Effective Date and the date on which such
Intercompany Claims are Allowed, or, in each case, as soon thereafter as
practicable, each Holder of an Allowed Intercompany Claim in Class 4 shall be paid
in full and final satisfaction of such Holder’s Allowed Intercompany Claim in Cash.
Notwithstanding the foregoing, an Intercompany Claim that is not due and payable
on or before the Effective Date shall be paid thereafter (A) in the ordinary course
of business in accordance with the terms of any agreement that governs such
Intercompany Claim, or (B) in accordance with the course of practice between the
Debtor and such Holder with respect to such Intercompany Claim.
(iii) Voting: Class 4 is an Unimpaired Class, and the Holders of Allowed
Class 4 Intercompany Claims are conclusively deemed to have accepted this Plan
pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of
Class 4 Intercompany Claims are not entitled to vote to accept or reject this Plan.
(e) Class 5 — Equity Interests
(i) Interests In Class: Class 5 consists of all Equity Interests.
(ii) Allowance Of Equity Interests: The Equity Interests shall be Allowed.
19
(iii) Treatment: The Holder of Class 5 Allowed Equity Interests shall retain
such Equity Interests as of the Effective Date.
(iv) Voting: Class 5 is Impaired. Pursuant to section 1126 of the Bankruptcy
Code, the Holder of Allowed Class 5 Equity Interests is entitled to vote to accept
or reject this Plan.
3.4 Alternative Treatment. Notwithstanding any provision herein to the contrary, any Holder of an Allowed Claim may
receive, instead of the distribution or treatment to which it is entitled hereunder, any other less
favorable distribution or treatment to which it and the Debtor or the Reorganized Debtor may agree
in writing.
3.5 Special Provision Regarding Unimpaired Claims. Except as otherwise provided in this Plan, nothing shall affect the Debtor’s or the Reorganized
Debtor’s rights and defenses, both legal and equitable, with respect to any Unimpaired Claims,
including but not limited to, all rights with respect to legal and equitable defenses to setoffs
against or recoupments of Unimpaired Claims.
3.6 Procedures For Resolving Disputed, Contingent, And Unliquidated Claims. The Debtor and the Reorganized Debtor may contest the amount and validity of any disputed,
contingent or unliquidated Claim in the ordinary course of business in the manner and venue in
which such Claim would have been determined, resolved or adjudicated if the Chapter 11 Case had not
been commenced.
ARTICLE IV
ACCEPTANCE OR REJECTION OF THIS PLAN
4.1 Classes Entitled To Vote. Each Impaired Class of Claims or Interests of the Debtor that is entitled to receive or retain
property or any interest under this Plan is entitled to vote to accept or reject this Plan. By
operation of law, each Unimpaired Class of Claims is deemed to have accepted this Plan and,
therefore, is not entitled to vote.
4.2 Acceptance By Impaired Classes. The Impaired Class of Claims (Class 2 — PIK Loan Unsecured Claims) shall have accepted this
Plan if (a) the Holders of at least two-thirds in amount of the Allowed Claims actually voting in
the Class have voted to accept this Plan and (b) the Holders of more than one-half in number of the
Allowed Claims actually voting in the Class have voted to accept this Plan, not counting the vote
of any Holder designated under section 1126(e) of the Bankruptcy Code. The Impaired Class of
Interests shall have accepted this Plan if the Holder of Class 5 Equity Interests has voted to
accept this Plan.
4.3 Elimination Of Classes. To the extent applicable, any Class that does not contain any Allowed Claims or any Claims
temporarily allowed for voting purposes under Bankruptcy Rule 3018, as of the date of the
commencement of the Confirmation Hearing, shall be deemed to have been deleted from this Plan for
purposes of
20
(a) voting to accept or reject this Plan and (b) determining whether it has accepted or
rejected this Plan under section 1129(a)(8) of the Bankruptcy Code.
ARTICLE V
MEANS FOR IMPLEMENTATION OF THIS PLAN
5.1 Continued Legal Existence. Except as otherwise provided in this Plan, the Debtor will continue to exist after the Effective
Date as a separate legal entity, with all the powers under applicable law in Bermuda and pursuant
to the Debtor’s organizational documents in effect prior to the Effective Date (provided that such
organizational documents shall be amended to prohibit the Reorganized Debtor from issuing
non-voting equity securities, to the extent necessary to comply with section 1123(a) of the
Bankruptcy Code), without prejudice to any right to terminate such existence (whether by merger or
otherwise) under applicable law after the Effective Date.
5.2 New Boards Of Directors. The identity of the members of the New Board of each of the Reorganized Debtor, Worldwide and
Travelport Limited shall be identified in the Plan Supplement. As of the Effective Date, the
Holders of PIK Loan Unsecured Claims shall have the right to select
onetwo members of the New
Board of each of the Reorganized Debtor, Worldwide and Travelport Limited for an initial term of
two (2) years, subject to and in accordance with the terms and conditions set forth in the
Shareholders’ Agreement.
5.3 PIK Loan Restructuring. The Debtor and Worldwide, as joint proponents of this Plan, shall take, or shall cause to be
taken, as applicable, such actions as may be necessary or appropriate to effect the transactions
contemplated by this Plan (such actions, as set forth below, and together with
the Additional Share Distribution, the “PIK Loan Restructuring”). In furtherance thereto, in the
event any of the following have not yet taken place, the Debtor and Worldwide, as joint proponents
of this Plan, as applicable, shall or shall cause (directly or indirectly, as applicable) on or
prior to the Effective Date:
(a) OpCo to enter into the Second Lien OpCo Term Loan Credit Agreement and to issue the Second
Lien OpCo Term Loan pursuant thereto;
(b) certain affiliates of the Debtor, which entities are guarantors of the OpCo Credit
Facility, to execute and effect the Second Lien OpCo Term Loan Guarantee;
(c) Travelport Limited to issue the New Intercompany Note to OpCo in exchange for the entire
outstanding principal of the Second Lien OpCo Term Loan;
21
(d) Travelport Limited to dividend $89.5 million in Cash and $207.5 million of principal value
of the Second Lien OpCo Term Loan to the Debtor;
(e) Travelport Limited to create the New Sub;
(f) (i) distribute $85 million dollars
received from Travelport Limited to the Holders of the PIK Loan Unsecured Claims, on a Pro Rata
basis, as a pay-down of PIK Loan (the “PIK Loan Cash Distribution”);
(g) (j) distribute $207.5 million of the
Second Lien OpCo Term Loan (the “Second Lien OpCo Term Loan Exchange Portion”) to the Holders of
the PIK Loan Unsecured Claims in exchange for $207.5 million of the PIK Loan;
(h) (k) the Shareholder Party to form
Travelport NewCo, and the Shareholder Party to transfer its 100% interest in Worldwide to
Travelport NewCo in exchange for 100% of the equity of Travelport NewCo;
(i) (l) issue 40% of the fully diluted
issued and outstanding common stock of Worldwide, as follows: (i) the Effective Date
Common Stock Distribution to the Holders of PIK Loan Unsecured Claims on a Pro Rata
basis and (ii) the Effective Date Common Stock Escrow Distribution to the Equity
Escrow Agent (collectively, the “Common Stock
Issuance”); provided, however in the
event BMA Approval is not granted for any particular Holder of PIK Loan Unsecured Claims the
issuance shall nonetheless be deemed effective subject to the satisfaction of the condition
contained in Section 8.2(e) of this Plan. The shares of Worldwide that would otherwise be issued
to Holder(s) that have not obtained BMA Approval will (i) be issued into escrow (along with any
dividends, distributions or other consideration received in respect of the Worldwide shares), and
(ii) will be released from escrow, along with any dividends, distributions or other consideration
received, to such Holder(s) on such later date when BMA Approval is obtained. Holders(s) that have
not obtained BMA Approval may transfer the right to receive such shares held in escrow to a valid
transferee (as permitted
22
pursuant to the Shareholders’ Agreement, but not subject to the right of
first offer set forth therein). In the event BMA Approval is not obtained for the Holder or a
valid transferee within three months following the Effective Date such undistributed shares of
Worldwide shall be reallocated and distributed to the Holders of Allowed PIK Loan Unsecured Claims
that have received BMA Approval on a Pro Rata basis;
(j) (m) execute the Shareholders’
Agreement, the Equity Escrow Agreement and the Registration Rights
Agreement;
(k) (n) execute the Amendment Agreement and
the Amended and Restated PIK Loan Credit Agreement, such amendments shall have become effective,
and distribute the Tranche A Extended PIK Loan and the Tranche B Extended PIK Loan to the Holders
of PIK Loan Unsecured Claims on a Pro Rata basis;
(l) (o) $4.5 million of the $89.5 million
cash dividend received by the Debtor in accordance with Section 5.3(d) of this Plan will be
retained by the Debtor for the payment of fees and expenses allocable to the Debtor, Worldwide or
Travelport NewCo in connection with the transactions contemplated hereby, with any unused amount
being applied to reduce the Tranche B Extended PIK Loan as soon as practicable after the Effective
Date; and
(m) (p) OpCo and the other Debtor-affiliates
to the OpCo Credit Facility to execute the OpCo Credit Facility Amendment and such amendment shall
have become effective (each of the foregoing (a) —
(pm) collectively, the “Conditions”).
On or promptly following the Effective Date, the Shareholder Party or its
designee(s) shall offer to promptly purchase up to $40 million aggregate principal amount of the
Tranche A Extended PIK Loan from all of the holders thereof at par on a Pro Rata basis, on terms
consistent with the form of assignment and assumption agreement to be attached to the Amended and
Restated PIK Loan Credit Agreement (the “Agreement to
Purchase”). Also following the Effective Date, the Subscription Agreement, the
New Sub Escrow and Security Agreement and the New Sub Guarantee shall be entered into pursuant to
the terms of the Restructuring Support Agreement.
Travelport Limited shall (i) use all reasonable commercial efforts to diligently
pursue a Favorable Ruling beginning promptly after the Effective Date, (ii) not take actions that
would impair its ability to consummate the Transfer, including making any investments that would
result in inadequate investment capacity under the Indentures to consummate the Transfer and (iii)
consummate the Transfer on or before five (5) business days after the Permitted Transfer
Date.
23
In accordance with the Restructuring Support Agreement (including the amended term
sheet), the Subscription Agreement, the New Sub Escrow and Security Agreement, the New Sub
Guarantee and the Agreement to Purchase shall not be required to be executed and/or effective on or
prior to the Effective Date or otherwise as a condition or prerequisite to the consummation of the
PIK Loan Restructuring.
5.4 Reinstatement Of Equity Interests And The Common Stock Issuance. The reinstatement of Equity
Interests by the Reorganized Debtor and the Common Stock Issuance, the Additional Share
Distribution and the shares issued pursuant to the Management Incentive Plan are authorized without
the need for any further corporate action (other than standard Worldwide corporate governance
approval) or further notice to or action, order, or approval of the Bankruptcy Court or any other
entity except for those expressly required pursuant to this Plan; provided, however
that the Common Stock Issuance is subject to BMA Approval as described herein. OnExcept as
otherwise provided for herein, on the Effective Date, Equity Interests in the Reorganized
Debtor shall be retained and the Common Stock Issuance, consisting of the Effective Date Common
Stock Distribution and the Effective Date Common Stock Escrow
Distribution shall be made to the
Holders of PIK Loan Unsecured Claims and the Equity Escrow
Agent, as applicable.
All shares issued in the Common Stock Issuance, the Additional Share Distribution, and
pursuant to the Management Incentive Plan shall be duly authorized, validly issued and, if
applicable, fully paid and non-assessable.
5.5 Equity Escrow Distribution[Reserved]. Pursuant to Section 3.3 hereof, and as is also
described in the Shareholders’ Agreement and the Equity Escrow Agreement, the Equity Escrow Agent
shall make the Post-Effective Date Common Stock Distribution to Holders of PIK Loan Unsecured
Claims on a Pro Rata basis in accordance with the Post-Effective Date Common Stock Distribution
Schedule subject to the occurrence of a Liquidity Event as described in Section 5.6
hereof..
5.6 Liquidity Event[Reserved]. As is also described in the Equity Escrow Agreement, upon the
occurrence of a Liquidity Event, the Equity Escrow Agent will cease the Post-Effective Date Common
Stock Distribution, and any shares of Worldwide still held by the Equity Escrow Agent thereafter
shall be repurchased by Travelport NewCo for no additional consideration, and all dividends,
distributions and other consideration received in respect of such shares shall be returned to
Travelport NewCo; provided, however, in the event a Subject IPO or a Subject
Transaction is not consummated as set forth in this Section 5.6, the Equity Escrow Agent shall
resume the Post-Effective Date Common Stock Distribution in accordance with the Post-Effective Date
Common Stock Distribution Schedule.
24
5.7 Section 1145 And Other Exemptions. Pursuant to section 1145 of the Bankruptcy Code, the offering,
issuance and distribution of any securities contemplated by this Plan and any and all settlement
agreements incorporated herein, including shares issued in the Common Stock Issuance, the
Post-Effective Date Common Stock Distribution, the Additional Share Distribution and pursuant to
the Management Incentive Plan shall be exempt from, among other things, the registration
requirements of section 5 of the Securities Act of 1933 (as now in effect or hereafter amended) and
any other applicable law requiring registration prior to the offering, issuance, distribution or
sale of securities.
5.8 Additional Share Distribution. Pursuant to Section 3.3 hereof, the Disbursing Agent shall make a
Pro Rata distribution of the Additional Shares to the Holders of PIK Loan Unsecured Claims in
accordance with Section 3.3 hereof (the “Additional Share Distribution”); provided
that the total amount of the Additional Shares issued shall be reduced to the extent
necessary, in the reasonable opinion of tax counsel, in order to prevent an “ownership change”
within the meaning of section 382(g) of the IRC,
25
with respect to Worldwide, prior to the
consummation of a sale, merger, amalgamation or IPO transaction (an “Ownership Change”). To the
extent the full amount of the Additional Shares is not issued pursuant to the preceding sentence,
(i) the Holders of PIK Loan Unsecured Claims will be issued such shares that have not yet been
issued or receive an amount of Cash equal to the fair market value of such shares upon the earlier
of the first date on which such shares can be issued without causing an Ownership Change or the
consummation of a sale, merger, amalgamation or IPO transaction, respectively, unless, solely in
the case of the issuance of the Additional Shares (and not in the case of payment of Cash), in the
reasonable opinion of tax counsel, it would cause an Ownership Change; and (ii) until such time as
all of the Additional Shares are issued or payment in Cash with respect to such shares is made, in
each case pursuant to clause (i) above, Worldwide shall use its best reasonable efforts to prevent
any “owner shift” or “equity structure shift” within the meaning of section 382(g) of the IRC with
respect to Worldwide. In the event that the Majority Shareholder takes any action, directly or
indirectly, to cause an Ownership Change, the Additional Shares will be promptly issued as
described above.
5.9 Treatment Of The Second Lien OpCo Term Loan, The Tranche A Extended PIK Loan And The Tranche B
Extended PIK Loan. The Debtor, the Reorganized Debtor and Worldwide shall, and by accepting
distributions pursuant to this Plan each Holder of an Allowed PIK Loan Unsecured Claim receiving
distributions pursuant to this Plan shall be deemed to have agreed to, (i) treat each of the
Tranche A Extended PIK Loan, the Tranche B Extended PIK Loan and the Second Lien OpCo Term Loan as
debt for U.S. federal income tax purposes and (ii) not take any position on any U.S. federal, state
or local income or franchise tax return or take any other reporting position that is inconsistent
with the treatment of the Tranche A Extended PIK Loan, the Tranche B Extended PIK Loan and the
Second Lien OpCo Term Loan as debt for U.S. federal income tax purposes.
5.10 Treatment Of The Post-Effective Date Common Stock Distribution And The Additional Share
Distribution. If a portion (the “Imputed Interest Potion”) of any Post-Effective Date Common Stock
Distribution orthe Additional Share Distribution (collectively, the “Unreleased Worldwide
Stock Distributions”) is recharacterized as imputed interest under the IRC pursuant to section 483
thereof or otherwise, the Debtor, the Reorganized Debtor and Worldwide shall, and by accepting
distributions pursuant to this Plan each Holder of an Allowed PIK Loan Unsecured Claim receiving
distributions pursuant to this Plan shall be deemed to have agreed to, (i) for all U.S. federal,
state and local income tax purposes, treat the Imputed Interest Portion as paid first in the form
of any Cash or property other than shares of Worldwide that are part of such Unreleased Worldwide
Stock Distribution, and thereafter, to the extent necessary, a portion of the shares of Worldwide
distributed in such Unreleased Worldwide Stock Distribution (such portion, the “Imputed Interest
Shares”); (ii) treat any Imputed Interest Shares as separate shares (and not as a portion of each
Worldwide share that is part of such Unreleased Worldwide Stock Distribution); and (iii) not take
any position on any U.S. federal, state or local income or franchise tax return or take any other
reporting position that is inconsistent with the treatment of the Imputed Interest Portion and the
Imputed Interest Shares as provided in this Section 5.10.
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5.11 Management Incentive Plan. The post-Effective Date Management Incentive Plan shall be implemented
by the New Board of Worldwide subject to the terms of the Restructuring Support Agreement.
5.12 Corporate Action. Each of the matters provided for under this Plan involving the corporate
structure of the Debtor or the Reorganized Debtor or any corporate action to be taken by or
required of the Debtor or the Reorganized Debtor shall be deemed to have occurred and be effective
as provided herein, and shall be authorized, approved and, to the extent taken prior to the
Effective Date, ratified in all respects without any requirement of further action by stockholders,
members, creditors, directors, or managers of the Debtor or the Reorganized Debtor.
5.13 Preservation Of Certain Causes Of Action. In accordance with section 1123(b)(3) of the Bankruptcy
Code, the Reorganized Debtor shall retain and may (but is not required to) enforce all Retained
Actions. After the Effective Date, the Reorganized Debtor, in its sole and absolute discretion,
shall have the right to bring, settle, release, compromise, or enforce such Retained Actions (or
decline to do any of the foregoing), without further approval of the Bankruptcy Court. The
Reorganized Debtor or any successors, in the exercise of their sole discretion, may pursue such
Retained Actions so long as it is in the best interests of the Reorganized Debtor or any successors
holding such rights of action. The failure of the Debtor to specifically list any claim, right of
action, suit, proceeding or other Retained Action in this Plan does not, and will not be deemed to,
constitute a waiver or release by the Debtor or the Reorganized Debtor of such claim, right of
action, suit, proceeding or other Retained Action, and unless any causes of action against an
entity are expressly waived, relinquished, exculpated, released, compromised or settled in this
Plan or a Bankruptcy Court order, the Reorganized Debtor expressly reserves the right to pursue
such claims, rights of action, suits, proceedings and other Retained Actions in its sole discretion
and, therefore, no preclusion doctrine, collateral estoppel, issue preclusion, claim preclusion,
estoppel (judicial, equitable, or otherwise) or laches will apply to such claim, right of action,
suit, proceeding, or other Retained Action upon, after, or as a consequence of the Confirmation or
consummation of this Plan. In accordance with section 1123(b)(3) of the Bankruptcy Code, any
claim, right of action, suit, proceeding or other Retained Action that the Debtor may hold against
any entity shall vest in the Reorganized Debtor. The Reorganized Debtor, through its authorized
agents or representatives, shall retain and may exclusively enforce any and all such claims, rights
of action, suits, proceedings or other Retained Actions. The Reorganized Debtor reserves and shall
retain the foregoing causes of action notwithstanding the rejection or repudiation of any Executory
Contract during the Chapter 11 Case or pursuant to this Plan.
5.14 Effectuating Documents; Further Transactions. The Debtor and the Reorganized Debtor, and their
respective officers and designees, are authorized to execute, issue, deliver, file, or record such
contracts, securities, instruments, releases, indentures, and other agreements or documents, and
take such actions as may be necessary or appropriate to effectuate and further evidence the terms
and conditions of this Plan, or to otherwise comply with applicable law, without further notice to
or action, order, or approval of the Bankruptcy Court or any other entity except for those
expressly required pursuant to this Plan.
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5.15 Exemption From Certain Transfer Taxes And Recording Fees. Pursuant to section 1146(a) of the
Bankruptcy Code, any transfers from the Debtor to the Reorganized Debtor or to any other Person or
entity pursuant to this Plan, or any agreement regarding the transfer of title to or ownership of
the Debtor’s real or personal property will not be subject to any document recording tax, stamp
tax, conveyance fee, sales tax, intangibles or similar tax, mortgage tax, stamp act, real estate
transfer tax, mortgage recording tax, Uniform Commercial Code filing or recording fee, or other
similar tax or governmental assessment, and the Confirmation Order will direct the appropriate
state or local governmental officials or agents to forego the collection of any such tax or
governmental assessment and to accept for filing and recordation any of the foregoing instruments
or other documents without the payment of any such tax or governmental assessment.
5.16 Further Authorization. The Debtor and the Reorganized Debtor shall be entitled to seek such
orders, judgments, injunctions, and rulings as they deem necessary to carry out the intentions and
purposes, and to give full effect to the provisions, of this Plan.
5.17 Dissolution Of Creditors’ Committee. The Debtor does not anticipate a Creditors’ Committee
will be formed in the Chapter 11 Case because general unsecured creditors are Unimpaired under this
Plan. Notwithstanding this, a Creditors’ Committee, if appointed, shall continue in existence
until the Effective Date to exercise those powers and perform those duties specified in section
1103 of the Bankruptcy Code and shall perform such other duties as it may have been assigned by the
Bankruptcy Court prior to the Effective Date. On the Effective Date, the Creditors’ Committee, if
appointed, shall be dissolved and the Creditors’ Committee’s members shall be deemed released of
all their duties, responsibilities, and obligations in connection with the Chapter 11 Case or this
Plan and its implementation, and the retention or employment of the Creditors’ Committee’s
attorneys, accountants, professionals, and other agents shall terminate, except with respect to (a)
all Professional Fee Claims and (b) any appeals of the Confirmation Order.
ARTICLE VI
PROVISIONS GOVERNING DISTRIBUTIONS
6.1 Allowed Claims And Interests. Notwithstanding any provision herein to the contrary, the Debtor or
the Reorganized Debtor shall make distributions only to Holders of Allowed Claims. A Holder of a
Disputed Claim shall receive only a distribution on account thereof when and to the extent that
such Holder’s Disputed Claim becomes an Allowed Claim.
6.2 Distributions For Claims Allowed As Of The Effective Date. Except as otherwise provided in this
Plan or as ordered by the Bankruptcy Court, distributions to be made on account of Claims that are
Allowed Claims as of the Effective Date shall be made on the Effective Date. Any payment or
distribution required to be made
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under this Plan on a day other than a Business Day shall be made
on the next succeeding Business Day.
6.3 Payments And Distributions On Disputed Claims. Distributions made after the Effective Date to
Holders of Claims that are not Allowed Claims as of the Effective Date but which later become
Allowed Claims shall be deemed to have been made on the Effective Date.
6.4 Special Rules For Distributions To Holders Of Disputed Claims. Notwithstanding any provision
otherwise in this Plan and except as otherwise agreed to by the relevant parties: (a) no partial
payments and no partial distributions shall be made with respect to a Disputed Claim until all such
disputes in connection with such Disputed Claim have been resolved by settlement or Final Order,
and (b) any entity that holds both an Allowed Claim and a Disputed Claim shall not receive any
distribution on the Allowed Claim unless and until all objections to the Disputed Claim have been
resolved by settlement or Final Order and the Disputed Claim has been Allowed.
6.5 Interest And Penalties On Claims. Unless otherwise specifically provided for in this Plan or the
Confirmation Order, or required by applicable bankruptcy law, postpetition interest and penalties
shall not accrue or be paid on any Claims and no Holder of a Claim shall be entitled to interest
and penalties accruing on or after the Petition Date through the date such Claim is satisfied in
accordance with the terms of this Plan.
6.6 Delivery Of Distributions And Undeliverable Or Unclaimed Distributions.
(a) Delivery Of Distributions In General
Except as otherwise provided herein, the Disbursing Agent shall make distributions to Holders
of Allowed Claims at the address for each such Holder as indicated on the Reorganized Debtor’s
records as of the date of any such distribution; provided that the method of
delivery of such distributions shall be determined at the discretion of the Reorganized Debtor.
(b) Fractional Shares
No fractional shares will be issued or distributed in the Common Stock Issuance, the
Additional Share Distribution or pursuant to the Management Incentive Plan under this Plan. The
actual distribution of shares in the Common Stock Issuance, the Additional Share Distribution and
pursuant to the Management Incentive Plan will be rounded to the next higher or lower number as
follows: (i) fractions less than one-half (1/2) shall be rounded to the next lower whole number and
(ii) fractions equal to or greater than one-half (1/2) shall be rounded to the next higher whole
number. The total number of shares to be distributed in the Common Stock Issuance, the Additional
Share Distribution and
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pursuant to the Management Incentive Plan will be adjusted as necessary to
account for such rounding.
(c) Minimum Distributions
Notwithstanding anything herein to the contrary, the Disbursing Agent shall not be required to
make distributions or payments of Cash of less than the amount of $50 and shall not be required to
make partial distributions or payments of fractions of dollars. Whenever any payment or
distribution of a fraction of a dollar under this Plan would otherwise be called for, the actual
payment or distribution will reflect a rounding of such fraction to the nearest whole dollar, with
half dollars or less being rounded down.
(d) Means Of Cash Payment
Payments of Cash made pursuant to this Plan shall be in U.S. dollars and shall be made, at the
option and in the sole discretion of the Reorganized Debtor, by (a) checks drawn on or (b) wire
transfer from a domestic bank selected by the Reorganized Debtor. Cash payments to foreign
creditors may be made, at the option of the Reorganized Debtor, in such funds and by such means as
are necessary or customary in a particular foreign jurisdiction.
(e) Undeliverable Distributions And Unclaimed Property
In the event that any distribution to any Holder is returned as undeliverable, no distribution
to such Holder shall be made unless and until the Disbursing Agent has determined the then current
address of such Holder, at which time such distribution shall be made to such Holder without
interest; provided, however, that such distributions shall be deemed unclaimed
property under section 347(b) of the Bankruptcy Code at the expiration of one year from the
Effective Date. After such date, all unclaimed property or interests in property shall revert to
the Reorganized Debtor (notwithstanding any applicable federal or state escheat, abandoned, or
unclaimed property laws to the contrary), and the Claim of any Holder to such property or interest
in property shall be discharged and forever barred.
6.7 Withholding And Reporting Requirements. In connection with this Plan and all distributions
thereunder, the Reorganized Debtor shall comply with all withholding and reporting requirements
imposed by any federal, state, local, or foreign taxing authority, and all distributions hereunder
shall be subject to any such withholding and reporting requirements. The Reorganized Debtor shall
be authorized to take any and all actions that may be necessary or appropriate to comply with such
withholding and reporting requirements.
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6.8 Setoffs. Except as otherwise set forth herein, the Reorganized Debtor may, pursuant to section 553
of the Bankruptcy Code or applicable non-bankruptcy laws, but shall not be required to, set off
against any Claim, the payments or other distributions to be made pursuant to this Plan in respect
of such Claim, or claims of any nature whatsoever that the Debtor or the Reorganized Debtor may
have against the Holder of such Claim; provided, however, that neither the failure
to do so nor the allowance of any Claim hereunder shall constitute a waiver or release by the
Reorganized Debtor of any such claim that the Debtor or the Reorganized Debtor may have against
such Holder.
ARTICLE VII
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
AND UNEXPIRED LEASES
7.1 Assumption Of Executory Contracts And Unexpired Leases. On the Effective Date, all Executory
Contracts or Unexpired Leases of the Debtor shall be deemed assumed in accordance with the
provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, except those Executory
Contracts or Unexpired Leases that have previously expired or terminated pursuant to their own
terms. An Executory Contract or Unexpired Lease that is deemed to be assumed pursuant to the
foregoing sentence shall be referred to as an “Assumed Contract.”
Entry of the Confirmation Order by the Bankruptcy Court shall constitute findings by the
Bankruptcy Court that (a) the Reorganized Debtor has properly provided for the cure of any defaults
that might have existed, (b) each assumption is in the best interest of the Reorganized Debtor, its
Estate, and all parties in interest in the Chapter 11 Case and (c) the requirements for assumption
of any Executory Contract or Unexpired Lease to be assumed had been satisfied. Except as otherwise
provided in the following sentence, all cure payments under any Assumed Contract would be made by
the Reorganized Debtor on the Effective Date or as soon as practicable thereafter. In the event of
a dispute, cure payments required by section 365(b)(1) of the Bankruptcy Code shall be paid upon
entry of a Final Order resolving such dispute.
ARTICLE VIII
CONFIRMATION AND CONSUMMATION OF THE PLAN
8.1 Conditions To Confirmation. The following are conditions precedent to Confirmation of this Plan
each of which must be satisfied unless waived in accordance with Section 8.3 of this Plan.
(a) The Bankruptcy Court shall have approved the Disclosure Statement in form and substance
reasonably satisfactory to the Debtor, the Requisite Consenting Lenders and the Shareholder Party.
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(b) The Confirmation Order, this Plan and all exhibits and annexes to each of this Plan and
the Confirmation Order shall be in form and substance reasonably satisfactory to the Debtor, the
Requisite Consenting Lenders and the Shareholder Party.
8.2 Conditions To Effective Date. The Debtor shall request that the Confirmation Order include a
finding by the Bankruptcy Court that, notwithstanding Bankruptcy Rule 3020(e), the Confirmation
Order shall take effect immediately upon its entry. The following are conditions precedent to the
occurrence of the Effective Date, each of which must be satisfied or waived in accordance with
Section 8.3 of this Plan:
(a) The Confirmation Order, with this Plan and all exhibits and annexes to each, in form and
substance reasonably satisfactory to the Debtor, the Requisite Consenting Lenders and the
Shareholder Party, shall have been entered by the Bankruptcy Court and shall be a Final Order and
shall, among other things, provide that the Debtor and the Reorganized Debtor are authorized to
take all actions necessary or appropriate to enter into, implement, and consummate the PIK Loan
Restructuring and other agreements or documents created in connection with this Plan.
(b) All documents related to, provided for therein, or contemplated by the PIK Loan
Restructuring, including the PIK Loan Restructuring Documents, in form and substance reasonably
satisfactory to the Debtor, the Requisite Consenting Lenders and the Shareholder Party, shall have
been executed and delivered, and all conditions precedent thereto shall have been satisfied (other
than the occurrence of the Effective Date); provided, however, this condition shall not include
any documents related to the Subscription Agreement, the New Sub Escrow and Security Agreement, the
New Sub Guarantee, the Agreement to Purchase, or efforts to get a Favorable Ruling.
(c) All authorizations, consents, and regulatory approvals required, if any, in connection
with the consummation of this Plan shall have been obtained.
(d) Worldwide and the Debtor shall have amended their organizational documents as required by
the Bankruptcy Code and as necessitated by this Plan and the transactions contemplated thereby, in
form and substance reasonably satisfactory to the Requisite Consenting Lenders.
(e) BMA Approval shall have been given to (i) each of the Consenting Lenders and (ii) Holders
of no less than 70% of the PIK Loan Unsecured Claims that have completed and submitted the
documents required by the BMA to the BMA.
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(f) All actions, documents and agreements necessary to implement this Plan and the PIK Loan
Restructuring shall be in form and substance reasonably satisfactory to the Debtor, the Requisite
Consenting Lenders and the Shareholder Party and shall have been effected or executed as
applicable, including but not limited to the Conditions; provided, however, this condition
shall not include any documents related to the Subscription Agreement, the New Sub Escrow and
Security Agreement, the New Sub Guarantee, the Agreement to Purchase, or efforts to get a Favorable
Ruling.
(g) All documents related to the Subscription Agreement, the New Sub Escrow and
Security Agreement and the New Sub Guarantee, in the forms to be attached to the Amended and
Restated PIK Loan Credit Agreement, shall be in form and substance reasonably acceptable to the
Debtor, the Requisite Consenting Lenders and the Shareholder Party.
(h)
(g) The Debtor shall have sufficient Cash to make all required payments to be made
on the Effective Date.
(i)
(h) Execution by the Shareholder Party and Blackstone of Mutual Releases.
(j)
(i) Travelport Limited (and its direct or indirect owners) shall have taken all
action required for Travelport Limited to be treated as a disregarded entity under the IRC.
(k)
(j) Worldwide and its direct or indirect owners shall not have taken any action,
or omitted to take any action, prior to the Effective Date, if such action or omission would cause
Worldwide to no longer be treated as a corporation under the IRC.
(l)
(k) Worldwide shall have made a representation to the Requisite Consenting Lenders
as to its capitalization on the Effective Date, and shall hold no assets other than its interests
in the Debtor, and shall have, and represent that it has, no liabilities (other than obligations
under the Shareholders’ Agreement).
(m)
(l) The Debtor or OpCo shall have reimbursed the Initial Consenting Lenders and
the Shareholder Party, without the need to file a fee application with the Bankruptcy Court, for
the reasonable fees and expenses of each party’s respective select legal counsels and financial
advisors, pursuant to the terms of the Restructuring Support Agreement.
33
(n) The Shareholder Party shall have affirmed, pursuant to documentation reasonably
satisfactory to the Initial Consenting Lenders, that it or its designee(s) shall offer to purchase
and have the necessary resources to purchase, on or promptly following the Effective Date, at least
$40 million aggregate principal amount of the Tranche A Extended PIK Loan from all of the holders
thereof at par on a pro rata basis, on terms consistent with the form of assignment and assumption
agreement to be attached to the Amended and Restated PIK Loan Credit Agreement.
8.3 Waiver Of Conditions. Each of the conditions to the Effective Date set forth herein may be waived in whole or in part
by the Person who is entitled to satisfaction of that condition, without any notice to parties in
interest or the Bankruptcy Court and without a hearing. The failure to satisfy or waive any
condition to the Effective Date may be asserted by the Debtor, the Requisite Consenting Lenders or
the Shareholder Party (or as otherwise provided in the Restructuring Support Agreement) regardless
of the circumstances giving rise to the failure of such condition to be satisfied. The failure of
the Debtor, the Requisite Consenting Lenders and the Shareholder Party to exercise any of the
foregoing rights shall not be
deemed a waiver of any other rights, and each such right shall be deemed an ongoing right that may
be asserted at any time.
ARTICLE IX
EFFECT OF PLAN CONFIRMATION
9.1 Binding Effect. This Plan shall be binding upon and inure to the benefit of the Debtor, its Estate, all present
and former Holders of Claims and Interests, and their respective successors and assigns, including
but not limited to the Reorganized Debtor.
9.2 Revesting Of Assets. Except as otherwise explicitly provided in this Plan, on the Effective Date, all property
comprising the Estate (including Retained Actions, but excluding property that has been abandoned
pursuant to an order of the Bankruptcy Court) shall revest in the Reorganized Debtor, free and
clear of all Claims, Liens, charges, encumbrances, rights and Interests of creditors and equity
security holders. As of the Effective Date, the Reorganized Debtor may continue its business and
use, acquire, and dispose of property and settle and compromise Claims or Interests without
supervision of the Bankruptcy Court, free of any restrictions of the Bankruptcy Code or Bankruptcy
Rules, other than those restrictions expressly imposed by this Plan or the Confirmation Order.
9.3 Releases And Related Matters
(a) Releases By Holders Of Claims And Interests
To the maximum extent permitted by applicable law, as of the Confirmation Date (but subject to
the occurrence of the Effective Date), for good and
34
valuable consideration, the adequacy of which
is hereby confirmed, each Holder of a Claim or Interest that affirmatively votes in favor of this
Plan hereby forever releases, waives, and discharges all claims, obligations, suits, judgments,
damages, demands, debts, rights, causes of action, and liabilities, whatsoever against the Released
Parties, arising under or in connection with or related to the Debtor, the Estate, the conduct of
the Debtor’s business, the Chapter 11 Case, this Plan (other than the rights under this Plan and
the documents that comprise the Plan Supplement, contracts, instruments, releases, indentures, and
other agreements or documents delivered hereunder or contemplated hereby and thereby) or the
Reorganized Debtor, whether liquidated or unliquidated, fixed or contingent, matured or unmatured,
known or unknown, foreseen or unforeseen, then existing or thereunder arising, in law, equity, or
otherwise, that are based in whole or in part on any act, omission, transaction,
event, or other occurrence taking place on or prior to the Effective Date in any way relating
to the Debtor, the Estate, the conduct of the Debtor’s business, the Chapter 11 Case, this Plan or
the Reorganized Debtor.
(b) Releases By The Debtor, Its Estate And The Reorganized Debtor
As of the Confirmation Date (but subject to the occurrence of the Effective Date), for good
and valuable consideration, the adequacy of which is hereby confirmed, the Debtor, the Reorganized
Debtor and any Person seeking to exercise the rights of the Estate, including, without limitation,
any successor to the Debtor or any estate representative appointed or selected pursuant to section
1123(b)(3) of the Bankruptcy Code shall be deemed to forever release, waive, and discharge the
Released Parties of all claims, obligations, suits, judgments, damages, demands, debts, rights,
causes of action and liabilities which the Debtor or the Estate is entitled to assert, whether
known or unknown, liquidated or unliquidated, fixed or contingent, foreseen or unforeseen, matured
or unmatured, existing or hereafter arising, in law, equity, or otherwise, based in whole or in
part upon any act or omission, transaction, or occurrence taking place on or prior to the Effective
Date in any way relating to the Debtor, the Estate, the conduct of the Debtor’s business, the
Chapter 11 Case, this Plan or the Reorganized Debtor with respect to each of the Released Parties;
provided, however, that there shall be no such release, waiver or discharge on
account of claims or obligations in respect of the rights and obligations under this Plan, the
transaction documents, the documents that comprise the Plan Supplement, and the contracts,
instruments, releases, and other agreements or documents delivered hereunder or contemplated hereby
and thereby.
9.4 Discharge Of The Debtor
(a) Except as otherwise provided herein or in the Confirmation Order, (x) all consideration
distributed under this Plan shall be in exchange for, and in full and final satisfaction,
settlement, discharge, and release of, all Claims, Interests and causes
35
of action of any nature
whatsoever against the Debtor, including any interest accrued on Claims or Interests from and after
the Petition Date, whether known or unknown, liabilities of, Liens on, obligations of, rights and
Interests in the Debtor or its assets or properties and, (y) regardless of whether any property
shall have been abandoned by order of the Bankruptcy Court, retained, or distributed pursuant to
this Plan on account of such Claims, upon the Effective Date, the Debtor shall be deemed discharged
and released under section 1141(d)(1)(A) of the Bankruptcy Code from any and all Claims, including,
but not limited to, demands and liabilities that arose before the Effective Date, and all debts of
the kind specified in section 502 of the Bankruptcy Code, whether or not (i) a proof of claim based
upon such debt is filed or deemed filed under section 501 of the Bankruptcy Code, (ii) a Claim
based upon such debt is Allowed under section 502 of the Bankruptcy Code, (iii) a
Claim based upon such debt is or has been disallowed by order of the Bankruptcy Court, or (iv)
the Holder of a Claim based upon such debt accepted this Plan.
(b) As of the Effective Date, except as provided in this Plan or the Confirmation Order, all
Persons shall be precluded from asserting against the Debtor or the Reorganized Debtor, any other
or further Claims, debts, rights, causes of action, claims for relief, liabilities, or Equity
Interests relating to the Debtor based upon any act, omission, transaction, occurrence, or other
activity of any nature that occurred prior to the Effective Date. Except as otherwise provided
herein, any default by the Debtor or its affiliates with respect to any Claim that existed before
or on account of the filing of the Chapter 11 Case shall be deemed cured on the effective date.
Except as provided in this Plan or the Confirmation Order, the Confirmation Order shall be a
judicial determination of the discharge of all such Claims and other debts and liabilities against
the Debtor, pursuant to sections 524 and 1141 of the Bankruptcy Code, and such discharge shall void
any judgment obtained against the Debtor at any time, to the extent that such judgment relates to a
discharged Claim.
9.5 Compromises And Settlements. Pursuant to Bankruptcy Rule 9019(a), the Debtor may compromise and settle various Claims (a)
against it and (b) that it has against other Persons. The Debtor expressly reserves the right
(with Bankruptcy Court approval, following appropriate notice and opportunity for a hearing) to
compromise and settle Claims against it and claims that it may have against other Persons up to and
including the Effective Date. After the Effective Date, such right shall pass to the Reorganized
Debtor as contemplated in Section 9.2 of this Plan, without any need for Bankruptcy Court approval.
9.6 Injunction
(a) Except as provided in this Plan or the Confirmation Order, as of the Effective Date, all
Persons that have held, currently hold, may hold, or allege that they hold, a Claim, Interest,
obligation, suit, judgment, damage, demand, debt, right, cause of action, or liability that is
released, terminated, exculpated or discharged under this Article IX, along with their respective
current and former employees, agents, officers, directors, managers, principals, affiliates,
36
shareholders, and members, are permanently enjoined from taking any of the following actions
against the Released Parties or their property on account of any such released, terminated or
discharged Claim, Interest, obligation, suit, judgment, damage, demand, debt, right, cause of
action, or liability: (i) commencing or continuing, in any manner or in any place, any action or
other proceeding; (ii) enforcing, attaching, collecting, or recovering in any manner any judgment,
award, decree, or order; (iii) creating, perfecting, or enforcing any Lien or encumbrance; (iv)
asserting a setoff, right of subrogation, or recoupment of any kind against any debt, liability, or
obligation due to any released Person; or (v) commencing or continuing any action, in each such
case in any manner, in any place, or against any Person that
does not comply with or is inconsistent with the provisions of this Plan or the Confirmation
Order.
(b) The rights afforded in this Plan and the treatment of all Claims and Interests herein
shall be in exchange for and in complete satisfaction of all Claims and Interests of any nature
whatsoever, including any interest accrued on Claims from and after the Petition Date, against the
Debtor or any of its assets, property or Estate. Except as otherwise provided in this Plan or the
Conformation Order, on the Effective Date, all such Claims against the Debtor shall be fully
released and discharged, and the Interests shall be cancelled.
(c) Except as otherwise provided in this Plan or the Confirmation Order, all Persons shall be
precluded from asserting against the Debtor, the Debtor’s Estate, the Reorganized Debtor, each of
their respective successors and assigns, and each of their assets and properties, any other Claims
or Interests based upon any documents, instruments or any act or omission, transaction or other
activity of any kind or nature that occurred before the Effective Date.
(d) Without limiting the effect of the foregoing provision of this Section 9.6 upon any
Person, by accepting distributions pursuant to this Plan, each Holder of an Allowed Claim receiving
distributions pursuant to this Plan shall be deemed to have specifically consented to the
injunctions set forth in this Section 9.6.
9.7 Exculpation And Limitation Of Liability
(a) Except as otherwise provided in this Plan or the Confirmation Order, none of the Released
Parties shall have or incur, and each Released Party is hereby released and exculpated from, any
liability to any Person or any of their respective agents, employees, representatives, advisors,
attorneys, affiliates, shareholders, or members, or any of their successors or assigns, for any act
or omission, whether occurring prior to, on or following the Petition Date, in connection with,
relating to, or arising out of, the Chapter 11 Case, the Disclosure Statement, the transactions
contemplated by or described in this Plan or related
37
documents, the formulation, negotiation, or
implementation of this Plan, the pursuit of Confirmation of this Plan, the Confirmation of this
Plan, the consummation of this Plan, or the administration of this Plan or the property to be
distributed under this Plan, except for acts or omissions that are the result of gross negligence
or willful misconduct. The Debtor, the Reorganized Debtor and their respective affiliates, agents,
directors, officers, employees, advisors and attorneys have, and upon Confirmation of this Plan
shall be deemed to have, participated in good faith and in compliance with the applicable
provisions of the Bankruptcy Code with regard to the
solicitation and distribution of the securities pursuant to this Plan, and, therefore, are
not, and on account of such distributions shall not be, liable at any time for the violation of any
applicable law, rule or regulation governing the solicitation of acceptances or rejections of this
Plan or such distributions made pursuant to this Plan.
(b) Notwithstanding any other provision of this Plan, no Person or any of their respective
agents, employees, representatives, advisors, attorneys, affiliates, shareholders, or members, or
any of their successors or assigns, shall have any right of action against the Released Parties for
any act or omission, whether occurring prior to, on or following the Petition Date, in connection
with, relating to, or arising out of, the Chapter 11 Case, the Disclosure Statement, the
transactions contemplated by or described in this Plan or related documents, the formulation,
negotiation, or implementation of this Plan, the pursuit of Confirmation of this Plan, the
Confirmation of this Plan, the consummation of this Plan, or the administration of this Plan or the
property to be distributed under this Plan, except for acts or omissions that are the result of
gross negligence or willful misconduct.
9.8 Indemnification Obligations. Except as otherwise provided in this Plan or the Confirmation Order, in satisfaction and
compromise of the Indemnitees’ Indemnification Rights: (a) all Indemnification Rights except those
held by (i) Persons who are Released Parties and who are included in either the definition of
“Insured Persons” or the “Insureds” in any of the policies providing the D&O Insurance and (ii) the
Shareholder Party shall be released and discharged on and as of the Confirmation Date;
provided that the Indemnification Rights excepted from the release and discharge
shall remain in full force and effect on and after the Confirmation Date and shall not be modified,
reduced, discharged, or otherwise affected in any way by the Chapter 11 Case; (b) the Debtor or
Reorganized Debtor, as the case may be, covenant to use commercially reasonable efforts to cause
OpCo to purchase and maintain D&O Insurance providing coverage for those Persons described in
clause (a)(i) of this Section 9.8 whose Indemnification Rights are not being released and
discharged on and as of the Confirmation Date, for a period of six years after the Confirmation
Date insuring such parties in respect of any claims, demands, suits, causes of action, or
proceedings against such Persons based upon any act or omission related to such Person’s service
with, for, or on behalf of the Debtor or the Reorganized Debtor in at least the scope and amount as
currently maintained by the Debtor (the “Insurance Coverage”); and (c) the Debtor or the
Reorganized Debtor, as the case may be, hereby indemnify such Persons referred to in subclause (b)
above to the extent of, and agree to pay for, any deductible or retention
38
amount that may be
payable in connection with any claim covered by either under the foregoing Insurance Coverage or
any prior similar policy.
9.9 Term Of Bankruptcy Injunction Or Stays. Unless otherwise provided in this Plan or in the Confirmation Order, all injunctions or stays in
effect in the Chapter 11 Case pursuant to sections 105 or 362 of the Bankruptcy
Code or any order of the Bankruptcy Court, and extant on the Confirmation Date (excluding any
injunctions or stays contained in this Plan or the Confirmation Order) shall remain in full force
and effect until the Effective Date. All injunctions or stays contained in this Plan or the
Confirmation Order shall remain in full force and effect in accordance with their terms.
9.10 Entire Agreement. Except as otherwise indicated, this Plan and the executed or final versions of the documents and
agreements contained in the Plan Supplement supersede all previous and contemporaneous
negotiations, promises, covenants, agreements, understandings, and representations on such
subjects, all of which have become merged and integrated into this Plan.
ARTICLE X
RETENTION OF JURISDICTION
10.1 Retention Of Jurisdiction. Pursuant to sections 105(c) and 1142 of the Bankruptcy Code and notwithstanding entry of the
Confirmation Order and the occurrence of the Effective Date, the Bankruptcy Court shall retain
exclusive jurisdiction (unless otherwise indicated) over all matters arising out of, and related
to, the Chapter 11 Case and this Plan to the fullest extent permitted by law, including, among
other things, jurisdiction to:
(a) resolve any matters related to the assumption, assumption and assignment, or rejection of
any Executory Contract or Unexpired Lease to which the Debtor is a party or with respect to which
the Debtor or Reorganized Debtor may be liable and to hear, determine, and, if necessary, liquidate
any Claims arising therefrom;
(b) decide or resolve any motions, adversary proceedings, contested or litigated matters, and
any other matters and grant or deny any applications involving the Debtor that may be pending on
the Effective Date (which jurisdiction shall be non-exclusive as to any such non-core matters);
(c) enter such orders as may be necessary or appropriate to implement or consummate the
provisions of this Plan and all contracts, instruments, releases, and other agreements or documents
created in connection with this Plan, the Disclosure Statement, or the Confirmation Order;
39
(d) resolve any cases, controversies, suits, or disputes that may arise in connection with the
consummation, interpretation, or enforcement of this Plan or
any contract, instrument, release, or other agreement or document that is executed or created
pursuant to this Plan, or any entity’s rights arising from or obligations incurred in connection
with this Plan or such documents, provided, however, that the Bankruptcy Court
shall not have exclusive jurisdiction over matters arising out of, or related to, the PIK Loan
Restructuring Documents;
(e) modify this Plan before or after the Effective Date pursuant to section 1127 of the
Bankruptcy Code or modify the Disclosure Statement, the Confirmation Order, or any contract,
instrument, release, or other agreement or document created in connection with this Plan, the
Disclosure Statement, or the Confirmation Order, or remedy any defect or omission or reconcile any
inconsistency in any Bankruptcy Court order, this Plan, the Disclosure Statement, the Confirmation
Order, or any contract, instrument, release, or other agreement or document created in connection
with this Plan, the Disclosure Statement, or the Confirmation Order, in such manner as may be
necessary or appropriate to consummate this Plan;
(f) hear and determine all applications for compensation and reimbursement of expenses of
Professionals under this Plan or under sections 330, 331, 503(b), and 1129(a)(4) of the Bankruptcy
Code; provided, however, that from and after the Effective Date the payment of fees
and expenses of the Reorganized Debtor, including Professional Fee Claims, shall be made in the
ordinary course of business and shall not be subject to the approval of the Bankruptcy Court;
(g) issue injunctions, enter and implement other orders, or take such other actions as may be
necessary or appropriate to restrain interference by any entity with consummation, implementation,
or enforcement of this Plan or the Confirmation Order;
(h) adjudicate controversies arising out of the administration of the Estate or the
implementation of this Plan;
(i) hear and determine causes of action by or on behalf of the Debtor or the Reorganized
Debtor;
(j) enter and implement such orders as are necessary or appropriate if the Confirmation Order
is for any reason or in any respect modified, stayed, reversed, revoked, or vacated, or
distributions pursuant to this Plan are enjoined or stayed;
40
(k) determine any other matters that may arise in connection with or relate to this Plan, the
Disclosure Statement, the Confirmation Order, or any contract, instrument, release, or other
agreement or document created in connection with this Plan,
the Disclosure Statement, or the Confirmation Order, provided, however, that
the Bankruptcy Court shall not have exclusive jurisdiction over matters arising out of, or related
to, the PIK Loan Restructuring Documents;
(l) enforce all orders, judgments, injunctions, releases, exculpations, indemnifications, and
rulings entered in connection with the Chapter 11 Case;
(m) hear and determine such other matters as may be provided in the Confirmation Order or as
may be authorized under the Bankruptcy Code; and
(n) enter an order closing the Chapter 11 Case.
10.2 Failure Of Bankruptcy Court To Exercise Jurisdiction. If the Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction or is
otherwise without jurisdiction over any matter, including matters set forth in Section 10.1 of this
Plan, the provisions of this Article X shall have no effect upon and shall not control, prohibit,
or limit the exercise of jurisdiction by any other court having jurisdiction with respect to such
matter.
ARTICLE XI
ALLOWANCE AND PAYMENT OF
CERTAIN ADMINISTRATIVE CLAIMS
CERTAIN ADMINISTRATIVE CLAIMS
11.1 Professional Fee Claims
(a) Final Fee Applications. All final requests for Professional Fee Claims shall be filed no
later than sixty (60) after the Effective Date. After notice and a hearing in accordance with the
procedures established by the Bankruptcy Code and prior orders of the Bankruptcy Court, the Allowed
amounts of such Professional Fee Claims shall be determined by the Bankruptcy Court.
(b) Payment of Interim Amounts. Subject to the Holdback Amount, on the Effective Date, the
Debtor or the Reorganized Debtor shall pay all amounts owing to Professionals for all outstanding
amounts relating to prior periods through the Effective Date. In order to receive payment on the
Effective Date for unbilled fees and expenses incurred through such date, no later than two (2)
days prior to the Effective Date, the Professionals shall estimate fees and expenses due for
periods that have not been billed
41
as of the Effective Date and shall deliver such estimate to
counsel for the Debtor. Within
fifteen (15) days after the Effective Date, a Professional receiving payment for the estimated
period shall submit a detailed invoice covering such period.
(c) On the Effective Date, the Debtor or the Reorganized Debtor shall pay to the Disbursing
Agent, in order to fund the Holdback Escrow Account, Cash equal to the aggregate Holdback Amount
for all Professionals for whom a deposit was made. The Disbursing Agent shall maintain the
Holdback Escrow Account in trust for the Professionals with respect to whom fees have been held
back. Such funds shall not be considered property of the Reorganized Debtor. The remaining amount
of Professional Fee Claims owing to the Professionals shall be paid to such Professionals by the
Disbursing Agent from the Holdback Escrow Account when such claims are finally allowed by the
Bankruptcy Court. When all Professional Fee Claims have been paid in full, amounts remaining in
the Holdback Escrow Account, if any, shall be paid to the Reorganized Debtor.
(d) Upon the Effective Date, any requirement that Professionals comply with sections 327
through 331 of the Bankruptcy Code in seeking retention or compensation for services rendered after
such date will terminate, and the Reorganized Debtor shall employ and pay Professionals in the
ordinary course of business (including the reasonable fees and expenses incurred by Professionals
in preparing, reviewing, prosecuting or addressing any issues with respect to final fee
applications).
11.2 Other Administrative Claims. All other requests for payment of an Administrative Claim (other than as set forth in Section
11.1 of this Plan) must be filed with the Bankruptcy Court and served on counsel for the Debtor no
later than thirty (30) days after the Effective Date. Unless the Debtor or the Reorganized Debtor
object to an Administrative Claim by the Claims Objection Deadline, such Administrative Claim shall
be deemed Allowed in the amount requested. In the event that the Debtor or the Reorganized Debtor
objects to an Administrative Claim, the Bankruptcy Court shall determine the Allowed amount of such
Administrative Claim. Notwithstanding the foregoing, no request for payment of an Administrative
Claim need be filed with respect to an Administrative Claim (a) which is paid or payable by the
Debtor in the ordinary course of business or (b) the payment of which has been approved by the
Bankruptcy Court.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Effectuating Documents And Further Transactions. The Debtor and the Reorganized Debtor shall be authorized to execute, deliver, file, or record
such contracts, instruments, releases, and other agreements or documents and take such actions as
may be necessary or appropriate to effectuate, implement, and further
evidence the terms and conditions of this Plan, including, without limitation, (a) the PIK Loan
Cash Distribution, (b) the Second Lien OpCo Term Loan (pursuant to the New Sub
Investment
42
12.2 Reservation Of Rights. Except as expressly set forth in this Plan, this Plan shall have no force or effect unless the
Bankruptcy Court shall have entered the Confirmation Order. None of the filing of this Plan, any
statement or provision contained in this Plan, or the taking of any action by the Debtor with
respect to this Plan or the Disclosure Statement, shall be or shall be deemed to be an admission or
waiver of any rights of the Debtor with respect to the Holders of Claims or Interests prior to the
Effective Date.
12.3 Corporate Action. Prior to, on, or after the Effective Date (as appropriate), all matters expressly provided for
under this Plan and the PIK Loan Restructuring that would otherwise require approval of the
stockholders or directors of the Debtor or the Reorganized Debtor shall be deemed to have occurred
and shall be in effect prior to, on, or after the Effective Date (as appropriate) pursuant to the
applicable general corporation or other applicable law of the jurisdiction in which the Debtor or
the Reorganized Debtor is incorporated without any requirement of further action by the
stockholders or directors of the Debtor or the Reorganized Debtor.
12.4 Payment Of Statutory Fees. All fees payable pursuant to section 1930 of title 28, United States Code, as determined by the
Bankruptcy Court, shall be paid for each quarter (including any fraction thereof) until the first
to occur of the Chapter 11 Case being converted, dismissed, or closed.
12.5 Amendment Or Modification Of This Plan. Subject to section 1127 of the Bankruptcy Code and, to the extent applicable, sections 1122,
1123, and 1125 of the Bankruptcy Code, the Debtor reserves the right to alter, amend, or modify
this Plan, at any time prior to or after the Confirmation Date but prior to the substantial
consummation of this Plan; provided, however, that the Debtor shall not be entitled
to alter, amend, or modify this Plan without the prior consent of the Requisite Consenting Lenders
and the Shareholder Party, except as provided in the Restructuring Support Agreement. If the
Debtor alters, amends, or modifies this Plan in accordance with the foregoing sentence, a Holder of
a Claim or Interest that has accepted this Plan shall be deemed to have accepted this Plan, as
altered, amended or modified, if the proposed alteration, amendment or modification does not
materially and adversely change the treatment of the Claim or Interest of such Holder.
12.6 Severability Of Plan Provisions. If, prior to the Confirmation Date, any term or provision of this Plan is determined by the
Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power,
upon the request of the Debtor, to alter and interpret such term or provision to make it valid or
enforceable to the maximum extent practicable, consistent with the original purpose of the term or
provision held to be invalid, void, or unenforceable, and such term or provision
43
shall then be
applicable as altered or interpreted. Notwithstanding any such holding, alteration, or
interpretation, the remainder of the terms and provisions of this Plan shall remain in full force
and effect and shall in no way be affected, impaired, or invalidated by such holding, alteration,
or interpretation.
The Confirmation Order shall constitute a judicial determination and shall be deemed to
provide that each term and provision of this Plan, as it may have been altered or interpreted in
accordance with the foregoing, is: (a) valid and enforceable pursuant to its terms; (b) integral to
this Plan and may not be deleted or modified without the Debtor’s consent; and (c) nonseverable and
mutually dependent.
12.7 Successors And Assigns. This Plan shall be binding upon and inure to the benefit of the Debtor, and its successors and
assigns, including, without limitation, the Reorganized Debtor. The rights, benefits, and
obligations of any entity named or referred to in this Plan shall be binding on, and shall inure to
the benefit of, any heir, executor, administrator, successor or assign, affiliate, officer,
director, agent, representative, attorney, beneficiaries, or guardian, if any, of each entity.
12.8 Revocation, Withdrawal, Or Non-Consummation. The Debtor, subject to the terms of the Restructuring Support Agreement in all respects,
reserves the right to revoke or withdraw this Plan at any time prior to the Confirmation Date and
to file other plans of reorganization. If the Debtor revokes or withdraws this Plan, or if
Confirmation or consummation of this Plan does not occur, then (a) this Plan shall be null and void
in all respects, (b) any settlement or compromise embodied in this Plan (including the fixing or
limiting to an amount any Claim or Class of Claims), assumption of Executory Contracts or Unexpired
Leases effected by this Plan, and any document or agreement executed pursuant to this Plan shall be
deemed null and void, and (c) nothing contained in this Plan, and no acts taken in preparation for
consummation of this Plan, shall (i) constitute or be deemed to constitute a waiver or release of
any Claims by or against, or any Interests in, the Debtor or any other Person, (ii) prejudice in
any manner the rights of the Debtor or any Person in any further proceedings involving the Debtor,
or (iii) constitute an admission of any sort by the Debtor or any other Person.
12.9 Notice. All notices, requests, and demands to or upon the Reorganized Debtor to be effective shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when actually delivered or, in the case of notice by facsimile
transmission, when received and telephonically confirmed, addressed as follows:
44
TRAVELPORT HOLDINGS LIMITED 22 Elm Place Rye, New York 10580 Telephone: (973) 939-1620 Fax: (914) 967-0128 Att’n: Eric J. Bock |
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036-6522 Telephone: (212) 735-3000 Fax: (212) 735-2000 Att’n: Jay M. Goffman, Esq. Att’n: J. Eric Ivester, Esq. |
|
| Attorneys for Travelport Holdings Limited |
After the Effective Date, the Reorganized Debtor has authority to send a notice to entities
that to continue to receive documents pursuant to Bankruptcy Rule 2002, that they must file a
renewed request to receive documents pursuant to Bankruptcy Rule 2002. After the Effective Date,
the Reorganized Debtor is authorized to limit the list of entities receiving documents pursuant to
Bankruptcy Rule 2002 to those entities who have filed such renewed requests.
12.10 Governing Law. Except to the extent that the Bankruptcy Code, the Bankruptcy Rules or other federal law is
applicable, or to the extent that an Exhibit or schedule to this Plan provides otherwise, the
rights and obligations arising under this Plan shall be governed by, and construed and enforced in
accordance with, the laws of New York without giving effect to the principles of conflicts of law
of such jurisdiction.
12.11 Tax Reporting And Compliance. The Reorganized Debtor is hereby authorized, on behalf of the Debtor, to request an expedited
determination under section 505(b) of the Bankruptcy Code of the tax liability of the Debtor for
all taxable periods ending after the Petition Date through, and including, the Effective Date.
12.12 Exhibits. All Exhibits to this Plan are incorporated and are a part of this Plan as if set forth in full
herein.
12.13 Filing Of Additional Documents. On or before the date of filing of the Plan Supplement, the Debtor shall file such agreements
and other documents as may be necessary or appropriate to effectuate and further evidence the terms
and conditions of this Plan.
12.14 Conflicts. In the event that provisions of the Disclosure Statement and provisions of this Plan conflict,
the terms of this Plan shall govern.
12.15 Waiver Or Estoppel. Each Holder of a Claim or an Interest shall be deemed to have waived any right to assert any
argument, including the right to argue that its Claim or Interest should be Allowed in a certain
amount, in a certain priority, secured or not subordinated by virtue of an agreement made with the
Debtor or its counsel or any other entity, if such agreement was not disclosed in this Plan, the
Disclosure Statement, or papers filed with the Bankruptcy Court prior to the Confirmation Date.
45
Remainder of Page Left Intentionally Blank
46
Dated: Rye, New York
September21,28, 2011
September
| TRAVELPORT HOLDINGS LIMITED |
||||
| By: | /s/ |
|||
| Name: | ||||
| Title: | Executive Vice
President,
|
|||
47
EXHIBIT B
TO
AMENDMENT NO. 2 TO
DISCLOSURE STATEMENT OF
TRAVELPORT HOLDINGS LIMITED
DISCLOSURE STATEMENT OF
TRAVELPORT HOLDINGS LIMITED
AMENDED TERM SHEET
(Marked version)
(Marked version)
Restructuring Term Sheet
The terms set forth below do not constitute a binding agreement and are solely for the purpose of
outlining the principal terms of a potential restructuring of the Holdco PIK Loans of Travelport
Holdings Limited (“Holdco”) and covenants in the Opco Credit Facility of Travelport LLC
(“Opco”). Any final agreement is subject to execution of definitive documentation that is
mutually acceptable to the parties. This term sheet is intended solely to facilitate discussions
and is a confidential settlement communication which may not be relied upon or introduced into
evidence in any legal proceeding.
| Restructuring of Holdco PIK Loans | ||
Second Lien Opco Term Loan
|
► Opco will issue a new term loan in an aggregate principal amount of $342.5 million (consisting of a $207.5
million Tranche B Loan and a $135 million Tranche A Loan) on the terms set forth below |
|
| • | Maturity: December 1, 2016 | ||
| • | Interest Rate: LIBOR + 6.00%, payable in cash or PIK as required under “Second Lien PIK Toggle” below on a cumulative quarterly basis. | ||
| • | Security / Seniority: (a) The Second Lien Opco Term Loan shall be secured on a second priority basis by substantially the same assets securing the existing Opco Credit Facility (but in no event on any assets that do not secure the Opco Credit Facility), and shall be guaranteed, on a secured second priority basis, by the same entities that guarantee the Opco Credit Facility (but in no event by any entity that does not guarantee the Opco Credit Facility), to the extent practicable. (b) Travelport (as defined below) shall use commercially reasonable efforts to ensure that, to the extent permitted by applicable law and subject to no material adverse tax, regulatory or legal consequences and to the extent the same is pledged to support the Opco Credit Facility on a first lien basis, the obligations and guarantees under the Second Lien Opco Term Loan will be secured by the pledge of (i) 100% of the equity interests of each direct wholly owned foreign subsidiary of Travelport (to the extent not already subject to a 100% pledge), and (ii) 65% of the issued and outstanding voting equity interests of any foreign subsidiary that is directly owned by any Guarantor (other than Travelport) and by 100% of the issued and outstanding non-voting equity interests of each such direct wholly owned foreign subsidiary (and together constituting 100% of the economic equity interests of such subsidiary). (c) In addition, Travelport and its Restricted Subsidiaries will use commercially reasonable best efforts to cause each of its Restricted Subsidiaries that are not required to provide guarantees or liens and pursuant to clause (a) or (b) above to provide guarantees and liens (to lenders under the Opco Credit Facility on a first priority basis and to lenders of the Second Lien Opco Term Loan on a second priority basis) to the extent permitted under applicable law and subject to there being no material adverse tax, regulatory or legal consequences therefrom if (i) the total assets of such Restricted Subsidiary exceed $2.5 million as of the date of the most recent financial information prepared for such Restricted Subsidiary and (ii) there are minority equity holders at such Restricted Subsidiary or pledges or liens on the assets of such Restricted Subsidiary or any other arrangement that would prevent the economic value of such Restricted Subsidiary from being available to Opco’s lenders in an Insolvency Proceeding (as defined below) of Opco. Commercially reasonable best efforts shall include appropriate amendments to charters and/or the interposition of intermediate holding companies in furtherance of the foregoing. | ||
| • | Covenants / Events of Default: The Second Lien Opco Term Loan shall have substantially the same covenants and events of default as the existing Opco Credit Facility, as the same is amended in connection with the transactions described herein, except no financial maintenance covenants. Other baskets will be set with 30% cushions (excluding the debt incurrence covenant). | ||
| • | Voluntary Prepayments: The Second Lien Opco Term Loan may be paid prior to maturity at par at all times. Voluntary prepayments on the Second Lien Opco Term Loan may only be made after the First Lien Loans have been paid in full and there are no commitments or letters of credit outstanding under the Opco Credit Facility (unless fully collateralized). | ||
| • | Mandatory Prepayments: Mandatory prepayments on the Second Lien Opco Term Loan shall not be permitted until the First Lien Loans have been paid in full and there are no commitments or letters of credit outstanding under the Opco Credit Facility (unless fully collateralized). |
1
Restructuring of Holdco PIK Loans
| • | Voting: Any Second Lien Opco Tranche A Term Loan held by the Majority Shareholder Entity, an affiliate of the Majority Shareholder Entity or any investor in the Majority Shareholder Entity (other than Investment Funds (as defined below)) will not be counted in determination of the outcome of any vote of the holders. | ||
| • | “Investment Funds” shall means an affiliate of the Majority Shareholder Entity that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course and with respect to which the Majority Shareholder Entity does not, directly or indirectly, actually direct or cause the direction of the investment policies of such entity. |
Distribution of Cash and Second Lien
Opco Term Loan
|
► On or before the final consummation of the transactions described herein (the “Closing Date”), Opco will
sell $342.5 million aggregate principal amount of Second Lien Opco Tranche A and Tranche B Term Loans to Travelport
Limited (“Travelport”) in exchange for a subordinated promissory note issued by Travelport on terms reasonably
acceptable to the Lockup Parties (as defined below). |
|||||||
► On or before the Closing Date, Travelport will dividend $89.5 million of cash and $207.5 million of the
Second Lien Opco Tranche B Term Loan to Holdco as a restricted payment. |
||||||||
► On |
||||||||
► “Permitted Transfer Date” shall mean the earlier of (i) the date on which the Favorable Ruling
Condition (as defined below) is satisfied or (ii) the date on which Travelport, in its absolute and sole
discretion, at any time prior to the satisfaction of the Favorable Ruling Condition elects to enter into and cause
the New Unrestricted Subsidiary to enter into the Subscription Agreement. |
||||||||
► “Favorable Ruling Condition” shall mean that a court of competent jurisdiction has entered a judgment
(a “Favorable Ruling”) that none of the transactions related to the $135 million of Second Lien Opco Tranche A Term
Loan following its issuance that are contemplated by the RSA and the Restructuring Termsheet violate or give rise
to an event of default under the indentures (the “Indentures”) for the existing notes (the “Existing Notes”) and
that such Favorable Ruling has become a final order, in full force and effect without reversal, modification or
stay, not subject to a pending motion for reconsideration, revocation, reversal, modification, stay or appeal and
the period for an appeal having expired; provided, however, that if the Favorable Ruling has not become a final
order because a notice of appeal has been timely filed and the parties are not stayed or enjoined from taking
certain action contemplated hereby including executing the Subscription Agreement and consummating the Transfer,
the condition requiring a final order shall be only be deemed satisfied if Travelport determines in its sole and
absolute commercially reasonable discretion that the effect of any appeal or other related proceeding would not be
adverse to the business, operations, property, condition (financial or otherwise) or prospects of Travelport or
its affiliates. The Favorable Ruling Condition may be waived by Travelport in its absolute and sole
discretion. |
||||||||
► Travelport will use all reasonable commercial efforts to diligently pursue a Favorable Ruling beginning
promptly after the Closing Date and will not take actions that would impair its ability to consummate the Transfer,
including making any investments that would result in inadequate investment capacity under the Indentures to
consummate the Transfer. |
||||||||
Guaranty by New Unrestricted
Subsidiary; Escrow Arrangement
|
► On the
|
|||||||
2
Restructuring of Holdco PIK Loans
(who will be chosen by the Requisite Consenting Lenders and reasonably
acceptable to Holdco) will hold the Second Lien Opco Term Loan for the benefit of the Tranche A Extended Holdco PIK
Loan holders. |
||||||||
Intercreditor Agreement
|
► The administrative agent and collateral agent under the Second Lien Opco Term Loan will enter into an
Intercreditor Agreement with the administrative agent and collateral agent under the Opco Credit Facility which
shall provide for a “silent second lien”. “Silent” provisions to include first lien control of all aspects of a
bankruptcy, including consent to amount and terms of any priming loans, use of cash collateral and sale of
collateral (through 363 sale, plan or otherwise). The Intercreditor Agreement shall provide for (i) an explicit
waiver of second-lien right to object to sale of collateral (or manner of sale, including bid procedures) in an
Insolvency Proceeding and consent of second-lien lenders to any 363 sale (or sale procedures) approved by the first
lien lenders, (ii) a waiver by second lien lenders of their right to assert any rights as an unsecured lender if
they are prohibited from exercising the same rights as secured lenders (including objections to 363 sales), (iii) a
no competing DIP facility from second lien lenders provision (unless DIP facility takes out first lien in its
entirety or consented to by a majority of first lien lenders), (iv) an explicit agreement of second lien lenders
not to contest the enforceability of any provision of the Intercreditor Agreement, (v) to the extent permitted by
applicable law, no second lien lender will sponsor or agree to fund or otherwise facilitate or support or vote for
any restructuring plan of any obligor that does not pay the first lien lenders in full in cash without the consent
of a majority of the first lien lenders, (vi) no second lien lender will raise or support any objections to a
restructuring plan of any obligor on the basis that such plan provides the first lien lenders with an excessive
interest rate on any reorganization debt, and (vii) an “X-Clause”, provided that any securities retained by second
lien lenders must be PIK/no amortization/no cash payment entitlement of any sort prior to cash payment in full of
any securities received by the first lien lenders and such “X-Clause” shall not apply in the case of any plan where
the first lien lenders have voted to reject the restructuring plan but have been crammed up or crammed down. In
addition to the foregoing, the Intercreditor Agreement shall contain provisions substantially in the form set forth
on
Exhibit A. |
|||||||
Cash Paydown of Holdco PIK Loan
|
► On the Closing Date, $85 million of the $89.5 million cash dividend to Holdco will be used to paydown, on a
pro rata basis, the existing Holdco PIK Loan. |
|||||||
Agreement to Purchase
|
► By executing the RSA, TDS Investor (as defined herein) agrees that on or promptly following the Closing
Date, it or Travelport NewCo shall offer to promptly purchase up to $40 million aggregate principal amount of
Tranche A Extended Holdco PIK Loans from all of the holders thereof at par on a pro rata basis, on terms consistent
with the form of assignment and assumption agreement to be attached to the Amended and Restated PIK Credit
Agreement. |
|||||||
Cash for Payment of Expenses of Holdco
|
► $4.5 million of the $89.5 million cash
dividend to Holdco will be retained by Holdco for the
payment of fees and expenses allocable to Holdco,
Worldwide (as defined below) or NewCo (as defined
below) in connection with the transactions
contemplated hereby, with any unused amount being
applied to reduce the Tranche B Extended Holdco PIK
Loans as soon as practicable after the Closing Date. |
|||||||
Exchange of Holdco PIK Loan
|
► Holdco PIK Loan Holders will agree to exchange on the Closing Date with Holdco, on a pro rata basis, Holdco
PIK Loans, at par, for a portion of the Second Lien Opco Term Loan, in an aggregate principal amount of $207.5
million. |
|||||||
Extension
|
► The remaining Holdco PIK Loans (estimated at $422.5 million as of September 30, 2011), including any
additional accretion through the Closing Date, will be extended on the terms set forth below (collectively,
“Extended Holdco PIK Loans”). |
| ► Tranche A Extended Holdco PIK Loans |
| • | Principal Amount: $135 million | ||
| • | Maturity: September 30, 2012 (Change from March 27, 2012), or if the |
3
Restructuring of Holdco PIK Loans
| Permitted Transfer Date or related Transfer have not occurred by such date, the maturity will automatically be extended to December 1, 2016. Any Extended Holdco PIK Loans held by an affiliate of the Majority Shareholder Entity or any investor in the Majority Shareholder Entity (other than Investment Funds) will not be counted in determination of the outcome of any vote of the holders. | |||
| • | Interest Rate: LIBOR + 6.00% PIK on a cumulative quarterly basis (Change from LIBOR + 8.0%) | ||
| • | Voluntary Prepayments: Prepayable at par at all times | ||
| • | Priority: Will rank junior in right of repayment to the Tranche B Extended Holdco PIK Loans (other than as provided above under the heading “Guaranty by New Unrestricted Subsidiary; Escrow Arrangement”) | ||
| • | Mandatory Paydown: Same as existing agreement | ||
| • | Mandatory Repayment: |
||
| • | Voting/Consent: Prior to the Transfer, the Borrower will not consent to any amendment to the Second Lien Opco Tranche A Term Loan that is materially adverse to the lenders or would disproportionately impact the Second Lien Opco Tranche A Term Loan. | ||
| • | Representations, Covenants and Events of Default: Same as existing agreement, except as set forth herein and as required to consummate the transaction. |
| ► | Tranche B Extended Holdco PIK Loans |
| • | Principal Amount: All remaining amounts (estimated at approximately $287.5 million as of September 30, 2011), including any additional accretion through the Closing Date | ||
| • | Maturity: December 1, 2016 (Change from March 27, 2012) | ||
| • | Interest Rate: LIBOR + 13.5% PIK on a cumulative quarterly basis (Change from LIBOR + 8.0%) | ||
| • | Voluntary Prepayments: Prepayable at par at all times | ||
| • | Priority: Will rank senior in right of payment to the Tranche A Extended Holdco PIK Loans (other than as provided above under the heading “Guaranty by New Unrestricted Subsidiary; Escrow Arrangement”) | ||
| • | Mandatory Paydown: Same as existing agreement | ||
| • | Representations, Covenants and Events of Default: Same as existing agreement, except as set forth herein and as required to consummate the transaction. | ||
| Affiliates: Any Extended Holdco PIK Loans held by an affiliate of the Majority Shareholder Entity or any
investor in the Majority Shareholder Entity (other than Investment Funds) will not be counted in determination of
the outcome of any vote of the holders. The agreement governing the |
|||
4
Restructuring
of Holdco PIK Loans
Opco Indenture Capacity Utilized for Restricted Payment |
► $297 million of $297 million aggregate total capacity for restricted payments. |
|
Opco Indenture Capacity Utilized for Investment |
► $135 million of $155 million of aggregate total capacity for investments as per section 4.07(b)(7) and
Permitted Investments definition (clause 8 and 13) of the indentures. |
|
Consent Fee to Holdco PIK Loan Holders
|
► None |
|
Conversion of Second Lien Opco Term
Loan
|
► Upon a one-time request (a “Request”) given no earlier than 30 days and no later than 60 days after the
Closing Date by the holders of not less than a majority of the Second Lien Opco Term Loans, excluding those held by
Travelport or the New Unrestricted Subsidiary, which Request will be irrevocable, Opco will consummate,
within 30 days of the Request, a conversion (the “Bond Conversion”) of the Second Lien Opco Term Loan for newly
issued private-for-life bonds (the “Second Lien Opco Bonds”) to be governed by an indenture that contains
substantially the same covenants, representations, events of default and remedies as the Second Lien Opco Term
Loan, plus such provisions as are necessary to comply with the TIA. |
|
► Upon the commencement of the Bond Conversion, the OpCo shall provide notice of the Bond Conversion to each
Second Lien Opco Term Loan lender and the loans held by such lenders shall be converted to the Second Lien Opco
Bonds on the Consummation Date (as defined below), unless a lender (other than Travelport or the New
Unrestricted Subsidiary) notifies Opco in writing within 3 business days of the commencement of the Bond
Conversion of its intent to not participate in the Bond Conversion (the “Opt-out Notice”). No later than 5
business days of the commencement of the Bond Conversion (the “Consummation Date”), the Bond Conversion shall be
consummated and the Borrower shall convert all loans that were not the subject of an Opt-out Notice and all loans
held by Travelport and the New Unrestricted Subsidiary into Second Lien Opco Bonds. |
||
► The Second Lien Opco Term Loan and the related security agreements will provide that upon the consummation
of the Bond Conversion the restrictive covenants and related events of default and the security interest in
collateral will fall away in any remaining Second Lien Opco Term Loan that has not been converted and such Second
Lien Opco Term Loan will no longer be secured or have the benefit of customary restrictive covenants or related
events of default. The Second Lien Opco Bonds will be secured by and shall have the benefit of all collateral,
guarantees and other credit support that was applicable to the Second Lien Opco Term Loan. |
||
Required Participation
|
► 100%; provided however, if the contemplated restructuring (the “Restructuring”) cannot be completed on a
fully consensual basis by September |
|
Equity Participation
|
► The Holdco PIK Loan Holders will receive as partial consideration for the Restructuring, and the
transactions contemplated thereby, their pro rata share of 40% (such amount, together with any additional shares
issued in accordance with the provisions below, the “New Equity Shares,” and such holders, together with their
transferees, successors and assigns as permitted under the terms set forth in this term sheet, in their capacity as
holders of the New Equity Shares, the “New Equity Holders”) of the fully diluted issued and outstanding equity of
Travelport Worldwide Limited (“Worldwide”), the direct parent of Holdco, on the Closing Date (such issued and
outstanding equity, the “Worldwide Shares”, subject, pro rata together with all other outstanding shares, to
dilution by newly issued equity to active members of management under a management incentive |
| 1 | As used herein, “Required Consents” shall mean the consent, in the form of an executed counterpart of the Holdco Restructuring Support Agreement among Holdco, Worldwide, TDS Investor (as defined below) and the consenting lenders thereto or executed joinder agreement in the form attached thereto (the “RSA”) as “Exhibit B”, (a) with respect to a Plan, of persons holding at least two-thirds (2/3) in value of the Holdco PIK Loans and constituting more than one-half (1/2) in number of the Holdco PIK Loan Holders, and (b) with respect to a Scheme of Arrangement, of persons holding at least three-quarters (3/4) in value of the PIK Loans. |
5
Restructuring of Holdco PIK Loans
| plan (the “Management
Shares”), on terms approved by the board of directors of Worldwide and at least one independent director designated
by the New Equity Holders, of up to 5% of the Worldwide Shares on a fully diluted basis). On the Closing Date,
|
|||
| |
| |
6
Restructuring of Holdco PIK Loans
| 4 | |
| |
| 4 |
7
Restructuring of Holdco PIK Loans
| Transaction”), permits the
New Equity Holders to hold equity directly in the public company in an appropriate proportion (taking into account
(x) the dilution attributable to such IPO Transaction, (y) the equity disposed of in such IPO
Transaction |
|||
| 4 | In connection with the Restructuring, the New Equity Holders, the Blackstone Funds (as defined below), the Majority Shareholder Entity (as defined below), Worldwide and NewCo will execute and deliver a shareholders agreement (the “Shareholders Agreement”) in form and substance reasonably satisfactory to a majority of the New Equity Holders, which agreement and/or the organizational documents of Worldwide shall provide for, among other things: |
| • | Every 12 months following the Closing Date, Travelport agrees to allow and to aid the independent board member or members appointed by the New Equity Holders to review in good faith the restricted payment capacity of Travelport with which to cause the repayment of the Extended Holdco PIK Loan and based on those findings Travelport will use its commercially reasonable efforts to utilize any such availability for the purpose of causing the repurchase or repayment, pro rata, of any outstanding Extended Holdco PIK Loans, subject to the fiduciary duties of the directors of Travelport and its subsidiaries and any existing contractual obligations. | ||
| • | New Equity Holder Approval Rights: The Required Approval (as defined below) will be required for the following actions by Worldwide (and other entities, to the extent such entities are referred to below) after the Closing Date: |
| § | Any sale of all or substantially all of the assets of Worldwide and its direct or indirect subsidiaries, taken as a whole, or any merger, amalgamation, consolidation or any other change of control transaction that would result in the Majority Shareholder no longer directly or indirectly owning or having voting control over the majority of the issued and outstanding equity interest of Worldwide, Holdco, or any Upper Tier Entity (as defined below) or any IPO of Worldwide or Holdco, provided that the New Equity Shares then held by the New Equity Holders constitute at least 35% of the Worldwide Shares, excluding the Management Shares. | ||
| § | Any transaction between any of Worldwide or its direct or indirect subsidiaries on the one hand and any entity that is an “Affiliate” of Worldwide or any Upper Tier Entity on the other hand that is less favorable than a comparable transaction conducted with an unrelated party on an arm’s length basis, except for (i) any transaction after the Closing Date pursuant to the terms of any agreement to which Worldwide or any of its direct or indirect subsidiaries is party or is bound that was entered into prior to execution of the RSA by the Lockup Parties, and the details of which have been disclosed (at Worldwide’s option, on a confidential basis) to the Lockup Parties, or to their counsel, or publicly disclosed, prior to their execution of the RSA, (ii) any transaction or series of transactions approved by the majority of members of the board of directors of Worldwide and at least one independent director designated by the New Equity Holders, (iii) any transaction or series of transactions in which Worldwide obtains a letter from an independent financial advisor stating that such transaction is fair from a financial point of view or that the terms of such |
8
Restructuring of Holdco PIK Loans
| transaction are not less favorable than those that would have been obtained in a comparable transaction conducted with an unrelated party on an arm’s length basis, (iv) the payment of reasonable and customary fees paid to, and indemnities provided for the benefit of, officers directors, employees or consultants, (v) equity issuances to, retirements and repurchases of equity from, any director, officer, employee or consultant under the terms of any compensation plan approved by the board of directors, and (vi) payments or loans (or cancellation of loans) to employees or consultants and entering into employment agreements, severance arrangements, stock options plans and other similar arrangements with such employees or consultants which arrangements, if they involve executive officers, have been approved by the board of directors, in each case, in the ordinary course of business. “Affiliate” means, with respect to any Person, any other Person that directly, or indirectly, through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified, and shall be deemed to include each Person or “group” (within the meaning of Section 13(d)(3) or Section l4(d)(2) of the Exchange Act, Rule 16a-l(2) under the Exchange Act or any successor provision of any of these provisions) that, directly or indirectly, through one or more intermediaries, beneficially owns (within the meaning of Section 13(d)(3) or Section l4(d)(2) of the Exchange Act, Rule 16a-l(2) under the Exchange Act or any successor provision of any of these provisions) or Controls 5% or more of the voting stock of the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. Notwithstanding anything herein to the contrary, no New Equity Holder shall be deemed to be an Affiliate of Worldwide or any Upper Tier Entity or an Affiliate of any other Person that would be deemed to be an Affiliate of the Worldwide or any Upper Tier Entity pursuant to this definition. | |||
| § | Any action by Worldwide or any of its subsidiaries that, if taken by a corporation formed under the General Corporation Law of the State of Delaware, would require stockholder approval (unless otherwise agreed in the Shareholders Agreement in which case the Shareholders Agreement shall govern) and that would disproportionately and adversely affect the New Equity Holders in their capacity as shareholders only and not as creditors. | ||
| § | Any authorization to issue, or issuance of, any new equity securities of any subsidiary of Worldwide (unless such shares are issued (i) other than to the Majority Shareholder or an affiliate thereof, for fair market value, determined in the good faith judgment of the board of directors of Worldwide or (ii) to the existing immediate parent company of the entity issuing the shares). | ||
| § | Any reclassification of any outstanding securities of Worldwide that would disproportionately and adversely affect the New Equity Holders, in their capacity as shareholders only and not as creditors. | ||
| § | Any redemption, dividend or distribution in respect of any shares of Worldwide that is not made pro rata (excluding redemptions in the ordinary course of business pursuant to agreements with officers, directors and employees upon their termination of service). | ||
| § | Any amendment of constituent documents and related agreements of Worldwide or any of its subsidiaries in a manner that would have a disproportionate and adverse effect on the New Equity Holders in their capacity as shareholders only and not as creditors, or that would directly or indirectly modify or impair any of the approval rights set forth herein. |
| § | “Required Approval” means either (i) the approval of the New Equity Holders holding at least majority of the New Equity Shares voting on such matter, provided that such majority of the New Equity Shares consists of at least 37.5% of the New Equity Shares then held by New Equity Holders; or (ii) in the event that there is confidential information that is required to be disclosed to the New Equity Holders, (x) the approval of New Equity Holders holding at least a majority of New Equity Shares of those New Equity Holders who affirmed their confidentiality obligations under the Shareholders Agreement and voted on such matter and (y) the approval of one of the independent directors designated by the New Equity Holders. In addition, notwithstanding anything to the contrary herein, with respect to each transaction that constitutes a sale of all or substantially all of the assets of Worldwide and its direct or indirect |
9
Restructuring of Holdco PIK Loans
subsidiaries, taken as a whole, or a merger, amalgamation, consolidation or
other change of control transaction that would require the approval of the New Equity Holders described in the
first bullet in the section entitled “New Equity Holder Approval Rights”, the following provisions shall apply: if
the Required Approval is not given for such transaction and (i) the Lockup Parties, together, hold 50% or less of
the New Equity Shares then held by the New Equity Holders or (ii) each Lockup Party, individually, holds less than
75% of the Worldwide Shares to which it was entitled hereunder (including shares held in escrow) then, if (x) the
board of directors, including one independent director designated by the New Equity Holders approved such
transaction (and no independent director rejects such transaction), the Majority Shareholder may proceed with such
transaction giving effect to the tag-along rights described herein to those New Equity Holders who approved the
transaction, but without giving effect to the drag-along rights described herein or (y) the board of directors
approves the transaction but at least one independent director rejects the transaction, then the Majority
Shareholder may proceed with such transaction so long as they give effect to tag-along rights described herein and
do not give effect to the drag-along rights described herein. |
||||||
• To the extent that any portion of the Holdco PIK Loans, the New Equity Shares or the Second Lien
Opco Term Loan or the Second Lien Opco Bonds are held by the Majority Shareholder and any affiliate thereof, such
holdings shall not be considered in any determination as to whether the holders of the Holdco PIK Loans, the New
Equity Shares or the Second Lien Opco Term Loan or the Second Lien Opco Bonds have provided their consent to any
amendment, modification or action contemplated hereunder or under any of the Restructuring Documents or otherwise. |
||||||
• At such time as the New Equity Shares then held by the New Equity Holders constitute less than 5%
of the Worldwide Shares (excluding the Management Shares) and either of the Lockup Parties has transferred to an
unaffiliated person any of the New Equity Shares to which it was entitled hereunder (including shares held in
escrow), the New Equity Holders shall no longer have the approval rights described under this “New Equity Holder
Approval Rights” section. |
||||||
• Other Approval Rights: |
||||||
§ Worldwide will
not issue any new equity securities (other than in connection with the management incentive
plan) unless (i) such equity securities are issued for fair market value, determined in the good faith judgment of
the board of directors of Worldwide after obtaining a valuation from a third party financial expert, (ii) at least
one director designated by the New Equity Holders shall vote in favor of such issuance and (iii) such equity
security issuances in either one or a series of transactions would not result in the Majority Shareholder no longer
directly or indirectly owning or having voting control of the majority of the issued and outstanding Worldwide
Shares. “Blackstone Funds” is defined as, collectively, Blackstone Family Investment Partnership (Cayman) V-SMD
L.P.; Blackstone Family Investment Partnership (Cayman) V L.P.; Blackstone Participation Partnership (Cayman) V
L.P.; Blackstone Capital Partners (Cayman) V L.P.; Blackstone Capital Partners (Cayman) V-A L.P.; BCP (Cayman) V-S
L.P.; BCP V Co-Investors (Cayman) L.P. and each of their successors or assigns with respect to their interests in
any Upper Tier Entity. “Majority Shareholder” is defined as, collectively, the Blackstone Funds; TCV VI (Cayman),
L.P.; TCV Member Fund (Cayman), L.P.; OEP TP, Ltd. and any person which directly or indirectly controls, is
controlled by or is under common control with each such entity. |
||||||
§ The approval of the holders of at least 75% of the New Equity Shares then held by New Equity Holders and
the approval of the Lockup Parties will be required to change (i) the classification of Worldwide as a corporation
under the Code or (ii) the classification of any direct or indirect subsidiary of Worldwide under the Code in any
way that would result in a person other than Worldwide to be treated as this issuer of the Holdco PIK Loan and the
Second Lien Opco Term Loan for U.S. federal income tax purposes. |
||||||
• Board Rights: The New Equity Holders will have the following rights: |
||||||
§ The New Equity Holders initially will have the right to designate |
10
Restructuring of Holdco PIK Loans
and unaffiliated with and unassociated with any Holdco PIK Loan Holder, (iii) initially selected by the Lockup Parties
and (iv) subject to approval of Travelport, not to be unreasonably withheld or delayed; however, if Travelport
rejects 2 consecutive proposed directors then, as to all proposed directors for such designation thereafter,
Travelport will have 10 business days to consent and can only reject the candidate on the basis of (x) reasonable
competitive concerns, (y) reasonable confidentially concerns or (z) adverse material financial impact. Equity
holders of Worldwide will covenant to nominate and elect |
||||||||||||
§ The Shareholders Agreement will terminate upon an IPO of Worldwide or any Upper Tier Entity (other than
provisions with respect to registration rights described below) or sale of 100% of equity interest of Worldwide or
any Upper Tier Entity (by sale, amalgamation or merger). |
||||||||||||
§ The number of directors on the board of Worldwide, Holdco and Travelport shall be |
||||||||||||
§ For notice of any board meeting to be valid, each of the director designees of the New Equity Holders shall
be given customary, timely notice reasonably in advance of such board meeting and shall be provided, unless waived,
a: |
||||||||||||
§ Seven-day window in which to schedule a regular board meeting |
||||||||||||
§ 48-hour window in which to schedule an emergency board meeting |
||||||||||||
§ Telephonic attendance at board meetings will be allowed. |
||||||||||||
§ Any action taken by the board by written consent, without a meeting, will require approval of at least one
director designated by the New Equity Holders. |
||||||||||||
§ In the event that (i) Worldwide issues shares, (ii) New Equity Holders exercise tag-along as set forth
under “Restrictions on Transfer — Tag-Along Rights” below or (iii) New Equity Holders transfer New Equity Shares
to the Purchaser (as defined below) as set forth under “Restrictions on Transfer — Right of First Offer” below,
and, as a result, the percentage of shares then held by the New Equity Holders is reduced (other than as a result
of the issuance of the Management Shares), the New Equity Holder’s board representation shall be adjusted according
to the following schedule: |
||||||||||||
§ So long as New Equity Shares then held by the New Equity Holders constitute 20% or more of the Worldwide
Shares (excluding the Management Shares), the New Equity Holders shall retain the right to appoint two directors |
||||||||||||
§ So long as New Equity Shares then held by the New Equity Holders constitute at least 10% and less than 20%
of the Worldwide Shares (excluding the Management Shares), the New Equity Holders shall retain the right to appoint
one director |
||||||||||||
§ Once the New Equity Shares then held by the New Equity Holders constitute less than 10% of the Worldwide
Shares (excluding the Management Shares), the New Equity Holders shall not have the right to appoint any director |
||||||||||||
§ At least one of the directors designated by the New Equity Holders must also be designated as a member of
each committee of the boards. |
||||||||||||
§ Worldwide, as the sole shareholder of Holdco, will, to the extent legally permitted to do so, cause Holdco
to appoint to its board of directors the board members designated by the New |
11
Restructuring of Holdco PIK Loans
Equity Holders under the terms and
conditions set forth above. Holdco, as the sole shareholder of Travelport, will, to the extent legally permitted to
do so, cause Travelport to appoint to its board of directors the board members designated by the New Equity Holders
under the terms and conditions set forth above. |
||||||||||||
|
• Restrictions on Transfers: |
||||||||||||
|
§ Dispositions: The New Equity Shares are freely transferable, subject to a Right of First Offer (below),
except the following transfers will be prohibited: |
||||||||||||
§ Transfers that would violate applicable securities laws |
||||||||||||
§ Transfers to competitors and their affiliates |
||||||||||||
§ Transfers by New Equity Holders that would bring the total number of New Equity Holders above 250 holders,
as determined under Section 12(g) of the Exchange Act |
||||||||||||
§ Transfers that would violate any regulatory restrictions applicable to Worldwide, including the
requirements of the Bermudan Monetary Authority |
||||||||||||
In addition: |
||||||||||||
§ All transferees will be required to execute the Shareholders Agreement |
||||||||||||
|
§ No transfer that would require registration under the U.S. securities laws will be permitted |
||||||||||||
§ Lock-up: Angelo, Gordon & Co. and Q Investments (collectively, the “Lockup Parties”) will agree not to
sell, transfer or dispose of any New Equity Shares held by either of them or their respective affiliates (other
than with respect to New Equity Shares held by swap participants) for a period of three-months beginning on the
Closing Date if the Lockup Parties or such affiliates have sole legal and beneficial ownership of, investment and
voting discretion over, and full authority to dispose of or act with respect to, such New Equity Shares. |
||||||||||||
§ Tag-along right: After the Closing Date, the New Equity Holders individually shall have the right, but not
the obligation, to participate pro rata in, and such participation rights are triggered upon, any offer for shares
or equity interests held directly or indirectly by the Majority Shareholder of (i) Worldwide or (ii) any Upper Tier
Entity. If the equity subject to this provision is of an Upper Tier Entity and such entity owns property or assets
other than a direct or indirect interest in Worldwide, the value of the New Equity Shares will be determined by
obtaining a valuation of such property or assets from two separate financial experts, one selected by each of (i)
the Majority Shareholder and (ii) one of the independent directors appointed by the New Equity Holders. If the two
valuations differ by less than 10% then the average of the two valuations will be used. If the two valuations
differ by more than 10%, a third financial expert will be selected by the two previously selected financial experts
and the valuation used will be the one closest to the appraisal obtained from the third financial expert. The
transaction giving rise to the tag-along rights shall be subject to approval rights, if any, set forth under “New
Equity Holder Approval Rights” above. |
||||||||||||
§ “Upper Tier Entity” means NewCo, the Majority Shareholder Entity or any entity formed above Worldwide and
below the Majority Shareholder Entity. |
||||||||||||
§ “Majority Shareholder Entity” means TDS Investor, or, if the Majority Shareholder holds its equity interest
in Worldwide indirectly through an entity other than TDS Investor, such entity. |
||||||||||||
§ The Majority Shareholder will not have the right to tag-along on any sale of any of the New Equity Shares. |
||||||||||||
§ Preemptive Right: The New Equity Holders can participate ratably in new share issuance based on the
shareholdings at the time of such issue (subject to customary exceptions to be agreed). |
||||||||||||
§ Drag-along right: The Majority Shareholder has the right to compel a sale of the New Equity
Shares pro rata and such sale is triggered upon acceptance by the Majority Shareholder of an offer to purchase at
least a majority of shares or equity interest of Worldwide or an Upper Tier Entity; provided that such transfer is
to a non-affiliated party |
12
Restructuring of Holdco PIK Loans
and all shareholders are treated equally in the transaction (which, for the avoidance of
doubt, shall not include any payment of customary and bona fide advisory fees paid to certain shareholders for
actual services rendered pursuant to (i) an agreement entered into by such shareholder and Worldwide which
agreement has been approved pursuant to the New Equity Holder Approval Rights described above or (ii) an agreement
entered into by such shareholder and an Upper Tier Entity which agreement has been approved by the board of
directors of Worldwide (including at least one independent director designated by the New Equity Holders)). If the
equity subject to this provisions is the equity of an Upper Tier Entity and such entity owns property or assets
other than a direct or indirect interest in Worldwide, the value of the New Equity Shares will be determined by
obtaining a valuation of such property or assets from two separate financial experts, one selected by each of (i)
the Majority Shareholder and (ii) one of the independent directors appointed by the New Equity Holders. If the two
valuations differ by less than 10% then the average of the two valuations will be used. If the two valuations
differ by more than 10%, a third financial expert will be selected by the two previously selected financial experts
and the valuation used will be the one closest to the appraisal obtained from the third financial expert. The
transaction giving rise to the drag-along rights shall be subject to approval rights, if any, set forth under “New
Equity Holder Approval Rights” above. |
||||||||||||
§ Right of First Offer: In the event that any New Equity Holder offers, or intends to offer, to transfer the
New Equity Shares held by it (the “Transfer Shares”) to any person (other than another New Equity Holder or an
affiliate of any New Equity Holder), then such New Equity Holder will, prior to consummation of any such transfer
or proposed transfer, give to NewCo notice thereof not less than ten business days prior to such offer, and NewCo
or its designated affiliate (the “Purchaser”) shall have the right to offer to purchase the Transfer Shares at a
price specified by it within ten days of receipt of notice of such proposed transfer. The New Equity Holders may
only sell the Transfer Shares to a third party within 30 days of receipt of the Purchaser’s offer to purchase for a
price at least 2% greater than that offered by the Purchaser without first offering such Transfer Shares to the
Purchaser. If no such sale is consummated within such 30 day period, then no offer of sale by an New Equity Holder
may be effected without again complying with the provisions hereof. |
||||||||||||
• Other Items: |
||||||||||||
§ Registration Rights: Customary piggy-back rights upon or following an IPO. |
||||||||||||
§ Information Rights: New Equity Holders shall receive substantially the same information as currently
provided to the Holdco PIK Loan Holders. Additional information rights substantially similar to the information
provided under the existing shareholder agreement of TDS Investor (Cayman) GP Ltd., including such information
rights with respect to Worldwide and its direct and indirect subsidiaries, in each case, subject to confidentiality
and privilege, shall be provided to any New Equity Holder that holds at least: |
||||||||||||
§ 1.0% of the issued and outstanding shares of Worldwide, if the New Equity Shares then held by the New
Equity Holders constitute at least 15% of the Worldwide Shares (excluding the Management Shares) |
||||||||||||
§ 1.5% of the issued and outstanding shares of Worldwide, if the New Equity Shares then held by the New
Equity Holders constitute at least 25% of the Worldwide Shares (excluding the Management Shares) |
||||||||||||
§ 2.0% of the issued and outstanding shares of Worldwide, if the New Equity Shares then held by the New
Equity Holders constitute at least 35% of the Worldwide Shares (excluding the Management Shares) |
||||||||||||
§ Additional Payment: Under the Transaction Monitoring and Fee Agreement (as amended or modified from time to
time, the “Management Agreement”), dated as of August 23, 2006, among Opco, Blackstone Management Partners V, TCV
VI Management L.L.C. |
13
Restructuring of Holdco PIK Loans
(together
with Blackstone Management Partners V L.L.C., the “Initial
Advisors” and together
with OEP TP, Ltd (“OEP”) (pursuant to the Investment and Cooperation Agreement, dated as of December 7, 2006,
among TDS Investor, Worldwide and OEP), the “Advisors”), the Advisors provide certain monitoring, advisory and
consulting services for which Opco pays certain transaction and advisory fees, including upon an initial public
offering or change of control transaction. The New Equity Holders will be entitled to receive 25% of any amount
that is permitted to be paid to the Advisors as a lump sum (i) under the Management Agreement upon an initial
public offering or change of control and (ii) pursuant to the credit agreements and other loan documents. |
||||||||||||
Fees and Expenses
|
► Opco or Holdco shall reimburse the reasonable fees and expenses of select legal counsels and financial
advisors of the Lockup Parties and shall provide a reasonable retainer on terms reasonably acceptable to the Lockup
Parties with respect thereto upon the execution of the RSA and, if so requested, shall enter into customary
retainer agreements with counsel to the Lockup Parties. |
|||||||||||
Releases
|
► All parties to the Restructuring shall give and receive standard agreed-upon mutual releases to the maximum
extent permitted by applicable law. |
|||||||||||
Management Incentive Plan
|
► An appropriate amount of newly issued equity securities will be allocated toward a management incentive
plan to be issued to active members of management on terms approved by the board of directors of Worldwide and at
least one independent director designated by the New Equity Holders (which will not exceed 5% of the aggregate
fully diluted equity). |
|||||||||||
Condition Precedent to Consummation of the Restructuring
|
► Satisfaction of all necessary requirements of the covenant relief under Opco Credit Facility. |
|||||||||||
► Satisfactory cushion above 2.0x fixed charge coverage ratio required to utilize the Restricted Payment
basket capacity. |
||||||||||||
► Delivery to the board of directors of Travelport solvency opinions in each relevant jurisdiction on the
terms and conditions set forth in the RSA. |
||||||||||||
► Execution and delivery by 100% of the Holdco PIK Loan Holders of the Loan Documents (as defined below) and
other documents reasonably necessary to effectuate the Restructuring or the occurrence of the effective date of any
plan of reorganization or scheme of arrangement that may be confirmed or approved as applicable. |
||||||||||||
► Travelport (and its direct or indirect owners) will have taken all action required for Travelport to be
treated as a disregarded entity under the Code. |
||||||||||||
► Holdco and Opco represent that Worldwide is treated as a corporation under the Code. Worldwide and its
direct or indirect owners will not take any action, or omit to take any action, prior to the Closing Date, if such
action or omission would cause Worldwide to no longer be treated as a corporation under the Code. |
||||||||||||
► Worldwide will hold no assets other than interest in Holdco and will have, and represent that it has, no
liabilities (other than obligations under the Shareholders Agreement); and will represent as to its
capitalization on the Closing Date. |
||||||||||||
►
TDS Investor (Cayman) L.P. (“TDS Investor”), the direct parent of Worldwide, will have formed Travelport
NewCo (“NewCo”) and will have transferred its 100% interest in Worldwide to NewCo in exchange for 100% of the
equity of NewCo. |
||||||||||||
► BMA Approval shall have been given to no fewer than 70% of Holdco PIK Loan Holders that have completed and
submitted the documents required by the BMA to the BMA. |
||||||||||||
► TDS Investor will have
affirmed that it or its designee will offer to purchase and have the necessary
resources to purchase, on or promptly following the Closing Date, at least $40 million aggregate principal amount
of Tranche A Extended Holdco PIK Loans. |
||||||||||||
Legal Opinions
|
► Existence, power, due authorization and execution and delivery by Bermuda counsel. |
|||||||||||
► Each of the Tranche A Extended PIK Loan, Tranche B Extended PIK Loan and Second Lien Opco |
| Fees and expenses of the Majority Shareholder to be reimbursed under the Transaction and Monitoring Fee Agreement. |
14
Restructuring of Holdco PIK Loans
Term Loan (the “Loan Documents”) constitutes the valid and binding obligation of each loan party, enforceable
against such loan party in accordance with its terms under New York
law. |
||||||||||||
► In the case of the Tranche A Extended PIK Loan and the Second Lien Opco Term Loan, customary secured
transaction opinions, which will not include “true sale” or insolvency-related opinions. |
||||||||||||
► The opinions will contain assumptions that neither the execution, delivery nor the performance of the Loan
Documents nor the transactions contemplated thereby violate any contracts or agreements to which the loan parties
are a party. |
15
Amendments under Opco Credit Facility
Total Leverage Ratio
|
► The Total Leverage Ratio covenant test will be set to
8.0X until June 30, 2013, then 7.75X until December 31, 2013,
then 7.50X until December 31, 2014 and 7.25X through maturity of
the Extended Term Loans. |
|
First Lien Leverage Ratio
|
► Add a first lien leverage ratio calculated as the ratio
of the outstanding amount of First Lien Loans to Consolidated
EBITDA. The First Lien Leverage Ratio covenant test will be set
at 4.0X until June 30, 2013, then 3.85X until December 31, 2013,
then 3.7X until December 31, 2014 and 3.5X through maturity of
the Extended Term Loans. |
|
Consolidated EBITDA
|
► Delete add-back of net cost savings projected by Borrower
(clauses (a)(xi) and (xii) of definition of Consolidated EBITDA),
limit restructuring charges under clauses (vi) and (ix) of
definition of Consolidated EBITDA to $35 million annually (and
clarify that clause (v) of definition of Consolidated EBITDA may
not be used for expenses that could have qualified under clauses
(vi) and (ix) of definition of Consolidated EBITDA) and calculate
EBITDA net of United EBITDA (as defined below). “United EBITDA”
shall mean $60 million until end of Q1 2012 and declining by $15
million each quarter thereafter until December 31, 2012. |
|
Collateral
|
► Additional post-closing collateral arrangements will
include control agreements on domestic bank accounts with
materiality thresholds to be determined. The additional
guarantees and collateral described above under “Second Lien Opco
Term Loan — Security/Seniority” will also apply to the first
lien facilities. |
|
Mandatory Prepayments
|
► During the 12 month period commencing on the Closing Date
and the subsequent 12 month period, Opco shall make payments
(such payments, “Mandatory Bond Prepayments”) in an aggregate
amount equal to $20 million to purchase/retire (through open
market purchases, tenders and/or redemptions, at Opco’s
discretion) Senior Notes of Opco (other than in the case of
ratable redemptions, from persons other than 5% shareholders or
affiliates of 5% shareholders) at prices no greater than par plus
any redemption premium, and accrued and unpaid interest. Opco
shall not be required to make Mandatory Bond Prepayments in the
event that the Chief Financial Officer of Opco delivers a
certificate, which states that making such Mandatory Bond
Prepayments is reasonably likely to result in a violation of the
Minimum Liquidity Covenant during the following 12 month period. |
|
► If, at the end of any fiscal year, the First Lien
Leverage Ratio is above or equal to 3.6X until December 31, 2013,
3.45X until December 31, 2014 and 3.25X through maturity of the
Extended Term Loans, Opco shall apply 100% of Excess Cash Flow
(instead of 50% of Excess Cash Flow as currently provided in
Section 2.05(b) of the Opco Credit Facility and after giving
effect to any Mandatory Bond Prepayments made during such fiscal
year) to repayment of First Lien Loans on a pro rata basis, so
long as making such payment does not result in a breach of the
Minimum Liquidity Covenant. |
||
► If, at the end of any fiscal year, the First Lien
Leverage Ratio is below 3.6X until December 31, 2013, 3.45X until
December 31, 2014 and 3.25X through maturity of the Extended Term
Loans, Opco shall apply 50% of Excess Cash Flow for such fiscal
year (and after giving effect to any Mandatory Bond Prepayments
made during such fiscal year) to prepay the First Lien Loans
pursuant to Section 2.05(b) of the Opco Credit Facility on a pro
rata basis and shall apply the remaining 50% of Excess Cash Flow
(and after giving effect to any Mandatory Bond Prepayments made
during such fiscal year) to either (x) repayment of First Lien
Loans on a pro rata basis, or (y) purchase/retirement (through
open market purchases, tenders and/or redemptions, at Opco’s
discretion) of Senior Notes of Opco (other than in the case of
ratable redemptions, from persons other than 5% shareholders or
affiliates of 5% shareholders) at prices no greater than par plus
any redemption premium, and accrued and unpaid interest, so long
as making such payment does not result in a breach of the Minimum
Liquidity Covenant. |
||
Incremental Facility
|
► Section 2.14 (Incremental Credit Extensions) to be
deleted. |
|
Extension of Revolving
Loans
|
► The maturity date of the Revolving Loans to be extended
to April 28, 2014. Interest rate on the extending revolving
loans will increase from L+275 basis points to L+450 basis
points. Commitment fee on the extending revolving loans will
increase from 50 basis points to 75 basis points. |
16
Amendments under Opco Credit Facility
Second Lien Opco Term Loan |
► Consent to permit a Second Lien Opco Term Loan secured on
a second priority basis by substantially the same assets securing
the Opco Credit Facility. |
|
Second Lien PIK Toggle
|
► If the First Lien Leverage Ratio is above or equal to
3.0X, Opco shall not pay cash interest to holders of Second Lien
Opco Term Loans. If the First Lien Leverage Ratio is below
3.0X, Opco may pay cash interest to holders of Second Lien Opco
Term Loans so long as before and after giving effect to such
payment no Default or Event of Default has occurred and is
continuing under the Opco Credit Facility. |
|
Minimum Liquidity Covenant |
► Add a covenant requiring minimum cash of $75 million
(excluding restricted cash which currently is approximately $137
million) at the end of each fiscal quarter; provided that if the
Revolving Credit Commitments are less than $125 million then
there will be a dollar for dollar reduction until the minimum
cash requirement is $70 million. |
|
Restricted Payments
|
► Restricted Payments capacity increased to $297 million
(matching capacity in indentures) to allow Opco to dividend the
Second Lien Opco Term Loan and cash in the amount of $89.5
million to Holdco as described above. |
|
Limitations on Prepayments |
► Restrictions on prepayments (Section 7.13) will be
expanded to prohibit prepayments of the Second Lien Opco Term
Loans. |
|
Opco Credit Facility Baskets |
► The general basket for investments will be reset to $20
million (built up by cash proceeds of new equity investments).
No restricted payments to be made other than to pay normal
expenses etc and from cash proceeds of new equity investments.
Eliminate ability to form or invest in new unrestricted
subsidiaries, and to make investments in the New Unrestricted
Subsidiary after the Closing Date (except for the
Transfer). |
|
Limitations on
Guarantees of Holdco
Indebtedness
|
► Holdings and its Restricted Subsidiaries shall not be
permitted to directly or indirectly guarantee Holdco PIK Loans,
it being understood that the guarantee of the New Unrestricted
Subsidiary of the Holdco PIK Loans does not constitute an
indirect guarantee of the Holdco PIK Loans. |
|
Consent Fee
|
► 400 basis points to consenting term loan and non-extended
synthetic letter of credit facility lenders; 200 basis points to
consenting revolving lenders; 200 basis points to extending
revolving lenders. |
|
Required Participation
|
► Consent from the holders of more than 50% of the
commitments and loans under the Opco Credit Facility. |
|
Condition Precedent
|
► Receipt of requisite consent of Holdco PIK Loan Holders
to effectuate the extension of Holdco PIK Loans out-of-court or
in a pre-packaged bankruptcy is a condition precedent to the
effectiveness of an amendment to the Opco Credit Facility. |
17
EXHIBIT A
If, in connection with an Insolvency Proceeding, a First Lien Deficiency Claim exists and any
Second Priority Secured Party receives a distribution (whether in cash or in-kind) solely on
account of its Second Lien Deficiency Claim out of property not constituting Collateral or
otherwise not subject to Section 4.2, Section 6.2 or Section 6.8 of the Intercreditor Agreement
(such amount, the “Turnover Proceeds”), then such Second Priority Secured Party’s interest
in such Turnover Proceeds shall be subject and subordinate to the First Lien Deficiency Claim until
such First Lien Deficiency Claim shall have been paid in full, and, subject to the immediately
following proviso, such Second Priority Secured Party shall segregate and hold in trust such
Turnover Proceeds for the benefit of the First Priority Secured Parties and shall forthwith pay
over such Turnover Proceeds in the form received to the First Priority Administrative Agent for
application to the First Lien Deficiency Claim until the First Lien Deficiency Claim shall have
been paid in full; provided that, to the extent, and only to the extent, required by the last
paragraph of Section 4.09 of the Senior Note Documents, each Second Priority Secured Party hereby
agrees that (i) its Second Lien Deficiency Claim shall be subject and subordinate to the Senior
Note Obligations to the extent and in the same manner as its Second Lien Deficiency Claim is
subject and subordinate to the First Lien Deficiency Claim under this paragraph, (ii) it shall,
subject to the preceding provisions of this paragraph, segregate and hold in trust Turnover
Proceeds for the benefit of the holders of the Senior Note Obligations and (iii) it shall, subject
to the preceding provisions of this paragraph, forthwith pay over Turnover Proceeds in the form
received to the trustee(s) under the Senior Note Documents. The First Lien Secured Parties and the
Second Lien Secured Parties agree that the foregoing shall not be deemed to restrict the Second
Priority Secured Parties from acquiring or repaying and discharging in full (other than out of
Turnover Proceeds) the First Lien Deficiency Claim. For the avoidance of doubt, nothing in this
paragraph shall otherwise impact the rights of the First Priority Secured Parties or the Second
Priority Secured Parties to the Collateral, the proceeds of Collateral or any property or
distribution contemplated by Section 4.2, Section 6.2 or Section 6.8 of Intercreditor Agreement.
DEFINITIONS:
Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such
terms in an intercreditor agreement to be entered into by and among, inter alia, the agents on
behalf of the First Priority Secured Parties and the agents on behalf of the Second Priority
Secured Parties (the “Intercreditor Agreement”)
“First Lien Deficiency Claim” shall mean that portion, if any, of the First Priority Claims
that are unsecured claims under Section 506(a)(i) of the Bankruptcy Code with such determination to
be made based upon the value of all of the Collateral securing the First Priority Claims
irrespective of whether the Obligor that has pledged such Collateral is a debtor in the Insolvency
Proceeding.
“Insolvency Proceeding” means (a) any voluntary or involuntary case or proceeding under the
Bankruptcy Code with respect to any Obligor as a debtor, (b) any other voluntary or involuntary
insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding with respect to any Obligor as a debtor or with
respect to any substantial part of their respective assets, (c) any liquidation, dissolution,
reorganization or winding up of any Obligor, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (d) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of any Obligor.
“Obligor” means Holdco, Opco and each of their Subsidiaries that is obligated under any
First Priority Document or Second Priority Document.
“Second Lien Deficiency Claim” shall mean that portion, if any, of the Second Priority
Claims that are unsecured claims under Section 506(a)(i) of the Bankruptcy Code with such
determination to be made based upon the value of all of the Collateral securing the Second Priority
Claims irrespective of whether the Obligor that has pledged such Collateral is a debtor in the
Insolvency Proceeding.
“Senior Note Documents” means the (i) Indenture, dated as of August 23, 2006, by and among
Travelport LLC, the guarantors listed herein and the Bank of Nova Scotia Trust Company of New York,
as amended by Supplemental Indenture No. 1, dated as of January 11, 2007, between Warpspeed Sub
Inc. and The Bank of Nova Scotia Trust Company of New York and Supplemental Indenture No. 2, dated
as of March 13, 2007, among Travelport LLC, TDS Investor (Luxembourg) S.à.r.l., Travelport Inc.,
Orbitz Worldwide, Inc., Travelport Holdings, Inc. and The Bank of Nova Scotia Trust Company of New
York and (ii) Indenture, dated as of August 18, 2010, by and among Travelport Limited, Travelport
LLC, Travelport Inc., the guarantors named therein, and The Bank of Nova Scotia Trust Company of
New York.
“Senior Note Obligations” means, in connection with any Insolvency Proceeding, the unpaid
principal amount, plus any accrued but unpaid interest thereon, of any of the Senior Dollar
Floating Rate Notes due 2014, Senior Euro Floating Rate Notes due 2014, 97/8% Senior Dollar Fixed
Rate Notes due 2014 and 9% Senior Notes Due 2016 issued under the applicable Senior Note Document
as in effect on the date hereof.
18
EXHIBIT C
TO
AMENDMENT NO. 2 TO
DISCLOSURE STATEMENT OF
TRAVELPORT HOLDINGS LIMITED
DISCLOSURE STATEMENT OF
TRAVELPORT HOLDINGS LIMITED
AMENDMENT AGREEMENT
(Marked pages only)
(Marked pages only)
Exhibit
C
FIRST AMENDMENT AND RESTATEMENT AGREEMENT, dated as of [•], 2011
(collectively with the Exhibits and Schedules attached hereto, this
“Amendment”), to the CREDIT AGREEMENT, dated as of March 27, 2007 (as
amended thereafter but prior to the Restatement Effective Date (as defined
below), the “Existing Credit Agreement”), among TRAVELPORT HOLDINGS
LIMITED, a company incorporated under the laws of Bermuda (the
“Borrower”), CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative
Agent, each lender from time to time party thereto (collectively, the
“Lenders” and individually, a “Lender”) and UBS SECURITIES LLC and LEHMAN
COMMERCIAL PAPER INC., as Co-Syndication Agents.
A. The Borrower has issued indebtedness under the Existing Credit Agreement.
B. The maturity of the indebtedness outstanding under the Existing Credit Agreement requires
the restructuring of the indebtedness of the Borrower and certain of its direct and indirect
subsidiaries, including without limitation Travelport LLC.
C. In connection with the financial restructuring of the Borrower, to be consummated
out-of-court or in connection with a Chapter 11 Plan (as defined in the Restated Credit Agreement
(as defined below)) as contemplated by the RSA (as defined in the Restated Credit Agreement (as
defined below)) the Borrower has requested an amendment to the Existing Credit Agreement pursuant
to which (a) certain of the Existing Loans (as defined below) shall be repaid, exchanged or
converted (in a manner that extends the maturity date for repayment thereof) in accordance with the
terms of this Amendment, and (b) certain other provisions of the Existing Credit Agreement will be
amended as set forth herein, and the Lenders are willing to consent thereto, in each case, on the
terms and subject to the conditions set forth herein.
D. In connection therewith and to induce the Lenders to agree to such amendments (including
such extensions of maturity), Travelport Limited shall make extensions of credit to Travelport LLC
under and pursuant to the terms of the Second Lien Credit Agreement (as defined in the Restated
Credit Agreement (as defined below)) on or prior to the Restatement Effective Date (as defined
below).
E. In order to effect the foregoing, the Borrower and the other parties hereto desire to
amend and restate, as of the Restatement Effective Date, the Existing Credit Agreement, on the
terms and subject to the conditions set forth herein.
Accordingly, in consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Existing
Administrative Agent (as defined below), the Successor Administrative Agent
(as defined below) and the Lenders party hereto hereby agree as follows:
(iv) Immediately prior to or concurrently with the Restatement Effective Date, each
Lender holding an Existing Loan, after giving effect to the prepayment described in clause
(iii) above, shall exchange at par its Pro Rata Share of principal amount of Existing Loans
in an aggregate outstanding principal amount (for the avoidance of doubt, including
capitalized interest) of $207,500,000 and shall receive in return therefor an amount equal
to the equivalent ratable share of Second Lien Tranche
AB Loans in an aggregate outstanding
original principal amount of $207,500,000 (the “Exchange”). Upon the consummation of the
Exchange, any Existing Loans exchanged pursuant to this clause (iv) shall be automatically
and immediately cancelled and terminated.
(v) On the Restatement Effective Date, each Lender holding an Existing Loan, after
giving effect to the Exchange described in clause (iv) above, shall convert at par its Pro
Rata Share of $135,000,000 of principal amount of Existing Loans into an equivalent ratable
share of $135,000,000 of original principal amount of Extended Tranche A Loans (the
“Tranche A Conversion”).
(vi) On the Restatement Effective Date, each Lender holding an Existing Loan, after
giving effect to the Tranche A Conversion described in clause (v) above and the
transactions described in clauses (iii) and (iv) above, shall convert at par its Pro Rata
Share of the balance of the Exchange Amount into an equivalent ratable share of an equal
original principal amount of Extended Tranche B Loans (the “Tranche B Conversion” and,
together with the Tranche A Conversion, the “Conversion”).
(vii) Prior to the Restatement Effective Date, TDS Investor (Cayman) L.P., the direct
parent of the Borrower’s direct parent, Travelport Worldwide Limited (“Travelport
Worldwide”), will have formed a new Bermuda exempted company, which in turn shall become
the direct parent of Travelport Worldwide.
(b) It is understood and agreed that, after giving effect to the Conversion, with respect to
each Lender, the aggregate principal amount of Extended Tranche A Loans and Extended Tranche B
Loans of such Lender is set forth on Schedule 2.01A opposite the name of such Lender. The records
of the Administrative Agent with respect to the matters set forth on Schedule 2.01A shall be
conclusive and binding on the Lenders, absent manifest error.
(c) None of transactions set forth in this Section 3 shall be deemed to be a conversion of any
Existing Loan into a Loan of a different Type or with a different Interest Period or, except to the
extent expressly set forth in this Section 3 with respect to the prepayment described in Section
3(a) and the Exchange, a payment or prepayment of any Existing Loan, and the parties hereto hereby
agree that no breakage or similar costs will accrue solely as a result of the transactions
contemplated by this Section 3.
(d) Notwithstanding anything to the contrary herein, in the Existing Credit Agreement or in
the Restated Credit Agreement, the Borrower may make the prepayments,
3
Exchange and Conversion described in this Section 3 without premium or penalty, and the
Administrative Agent and each of the Lenders waive prior notice thereof and any requirements as to
minimum prepayment amounts set forth in the Existing Credit Agreement or the Restated Credit
Agreement.
SECTION 4. Concerning the Administrative Agent.
(a) The Lenders party hereto hereby acknowledge (and waive all
notice requirements in respect of) the resignation of Credit Suisse AG, Cayman Islands Branch (the
“Existing Administrative Agent”), as Administrative Agent under the Existing Credit Agreement and
the other Loan Documents, such resignation to be effective as of the date hereof. In connection
therewith, the Lenders party hereto hereby appoint Wells Fargo Bank, National Association (“Wells
Fargo”) as the successor Administrative Agent under the Restated Credit Agreement and the other
Loan Documents (in such capacity, the “Successor Administrative Agent”); and the Lenders party
hereto waive any requirement that such successor agent be a Lender), and Wells Fargo hereby accepts
such appointment. The Borrower hereby consents to such appointment, which shall be effective in all
respects as of the date hereof.
(b) The Successor Administrative Agent hereby succeeds to and
becomes vested with all the rights, powers, privileges and duties of the Existing Administrative
Agent, in its capacity as Administrative Agent under the Existing Credit Agreement and the other
Loan Documents, and the Existing Administrative Agent is hereby discharged from its duties and
obligations under the Existing Credit Agreement and the other Loan Documents.
(c) In furtherance of the foregoing, it is understood and
agreed that the Existing Administrative Agent shall not be required to take any action or exercise
any right, power or privilege (including, without limitation, the exercise of any rights or
remedies) under the Loan Documents after the date hereof.
(d) The parties hereby agree and acknowledge that, from and after the
date hereof, Wells Fargo shall be, and shall be deemed to be, the Administrative Agent under the
Restated Credit Agreement and the other Loan Documents. In furtherance of the foregoing, all
defined terms referencing Credit Suisse AG, Cayman Islands Branch, as the Administrative Agent in
the Existing Credit Agreement or any other Loan Documents shall be deemed to have been amended to
refer to Wells Fargo, as the Administrative Agent thereunder.
(e) Notwithstanding this Amendment and the appointment of the
Successor Administrative Agent effected pursuant hereto, the parties hereto hereby agree that the
provisions of Article IX of the Existing Credit Agreement and Sections 10.04 and 10.05 of the
Existing Credit Agreement shall continue in effect for the benefit of the Existing Administrative
Agent in respect of any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent and any actions taken or omitted to be taken by it under or in connection with
this Amendment. In furtherance of the foregoing, the Borrower, the Successor Administrative Agent
and the Lenders party hereto hereby
4
acknowledge and agree that (i) any action taken or omitted to be taken by the Existing
Administrative Agent, its sub-agents and its and their Agent-Related Persons under or in connection
with this Amendment, including pursuant to any request or instruction made by or on behalf of the
Successor Administrative Agent, and any reasonable and documented out-of-pocket costs and expenses
incurred by the Existing Administrative Agent, its sub-agents and its and their Agent-Related
Persons in connection therewith, shall be entitled to all the benefits of the exculpatory
provisions of Article IX of the Existing Credit Agreement, (ii) the Existing Administrative Agent,
its sub-agents and its and their Agent-Related Persons will continue to constitute Indemnitees for
all purposes of the Loan Documents, including Section 10.05 of the Existing Credit Agreement and
(iii) any amounts owed to the Existing Administrative Agent under this Amendment or under the Loan
Documents in its capacity as the Existing Administrative Agent shall constitute “Obligations” for
all purposes of the Restated Credit Agreement and the other Loan Documents and shall be entitled to
the priority currently afforded thereto by the terms of the Loan Documents.
(f) Each of the parties hereto acknowledges and agrees that
notwithstanding anything to the contrary contained herein or in any other Loan Document, the
Successor Administrative Agent shall have no obligation, liability or responsibility for any of the
acts or omissions of the Resigning Administrative Agent, its sub-agents and its and their
Agent-Related Persons under, pursuant to or in connection with the Existing Credit Agreement or any
other Loan Document.
SECTION 5. SECTION 4.Representations and
Warranties. The Borrower hereby represents and warrants to each other party hereto
that:
(a) The execution, delivery and performance by the Borrower of this Amendment, and the
consummation of the transactions contemplated hereby, are within its corporate or other powers,
have been duly authorized by all necessary corporate or other organizational action, and do not and
will not (i) contravene the terms of any of the Borrower’s Organization Documents, (ii) conflict
with or result in any breach or contravention of, or the creation of any Lien under (other than as
permitted by Section 7.10 of the Restated Credit Agreement), or require any payment to be made
under (A) any Contractual Obligation to which the Borrower is a party or which affects the Borrower
or the properties of the Borrower or any of its Subsidiaries, or (B) any material order,
injunction, writ or decree of any Governmental Authority or any arbitral award to which the
Borrower or any of its properties is subject, or (iii) violate any material Law; except with
respect to any conflict, breach, contravention or payment (but not creation of Liens) referred to
in clause (ii)(A), to the extent that such conflict, breach, contravention or payment could not
reasonably be expected to have a Material Adverse Effect.
(b) This Amendment has been duly executed and delivered by the Borrower. This Amendment
constitutes, and, on and after the amendment and restatement of the Existing Credit Agreement on
Restatement Effective Date, the Restated Credit Agreement will constitute, a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms,
except as such enforceability may be limited by
5
Debtor Relief Laws, fraudulent transfer, preference or similar laws and by general principles of
equity.
(c) After giving effect to the Restated Credit Agreement, no Default has occurred and is
continuing.
SECTION 6. SECTION 5.
Effectiveness. This Amendment shall become effective on and as of the date
on which each of the following conditions precedent is satisfied (such date, the “Restatement
Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the Borrower and/or Travelport Guarantor, as applicable, each in form and
substance reasonably satisfactory to the Administrative Agent and its legal counsel and to the
Requisite Consenting Lenders (as defined in the RSA):
| (i) | executed counterparts of this Amendment from the Borrower and each lender party to the Existing Credit Agreement; | ||
| (ii) | |||
| (iii) | |||
| (iv) |
6
| the shareholders or members) of such Person approving and authorizing the execution, delivery and performance of this Amendment, the other Loan Documents and Travelport Guarantor Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary, director, counsel, attorney or other Responsible Officer as being in full force and effect without modification or amendment; (iv) if applicable in the jurisdiction of incorporation, organization or formation, as applicable, of such Person, a good standing, status or similar certificate from the applicable governmental authority of such Person’s jurisdiction of incorporation, organization or formation, each dated the Restatement Effective Date or a recent date prior thereto; and (v) other certificates of Responsible Officers of such Person as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment, the other Loan Documents and, as applicable, the Travelport Guarantor Loan Documents. |
(b) The Administrative Agent shall have received copies of opinions from Skadden, Arps, Slate,
Meagher & Flom LLP, New York counsel to the Borrower, and from Conyers Dill & Pearman, Bermuda
counsel to the Borrower, each such opinion addressed to the Administrative Agent and each Lender
and addressing due authorization, execution and delivery of this Amendment and enforceability of
the Restated Credit Agreement.
(c) The Existing Administrative Agent and the Successor Administrative
Agent shall have received all fees and other amounts due and payable to it, and each Initial
Consenting Lender (as defined in the RSA) shall have received all fees and other amounts due and
payable to it under the RSA or the Chapter 11 Plan, as applicable, in connection with this
Amendment and invoiced before the Restatement Effective Date, including reimbursement or payment of
all reasonable and documented out of pocket expenses (including reasonable fees, disbursements and
other charges of counsel) required to be reimbursed or paid by the Borrower in connection with the
Amendment.
(d) The representations and warranties of the Borrower contained in Article V of the Restated
Credit Agreement and in Section 45 of this Amendment shall be true and correct
in all material respects on the Restatement Effective Date; provided that, to the extent that such
representations and warranties specifically refer to an earlier date, they shall be true and
correct in all material respects as of such earlier date; provided, further that, any
representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or
similar language shall be true and correct in all respects on such respective dates.
(e) After giving effect to the Restated Credit Agreement, no Default shall exist, or would
result from consummation of the Transaction.
7
(f) The Borrower shall have delivered to the Administrative Agent fully executed copies of the
Second Lien Credit Agreement and the other documents governing the Second Lien Credit Facilities
that are to be executed and delivered on or prior to the Restatement Effective Date, each in form
and substance reasonably satisfactory to the Administrative Agent. The Second Lien Credit
Facilities shall be in full force and effect and the Second Lien Loans shall have been issued by
Opco to Travelport to Opco in exchange for the
Travelport Intercompany Note.
(g) Prior to or concurrently with the Restatement Effective Date:
(i) Travelport shall have (i)
contributedreceived the Second Lien
Tranche BA Loans in an aggregate
principal amount of $135,000,000 to Travelport Guarantor as a capital
contribution,135,000,000, (ii) made a cash dividend in
the amount of $89,500,000 to the Borrower and (iii) distributed Second Lien Tranche
AB Loans in an aggregate principal amount
of $207,500,000 to the Borrower;
(ii) the Borrower shall have made the repayments of Existing Loans as described in
Section 3(a)(iii); and
(iii) the Exchange shall have been consummated.
(h) The Borrower shall have delivered to the Administrative Agent (x) evidence reasonably
satisfactory to the Administrative Agent that a new bankruptcy-remote Subsidiary (“Travelport
Guarantor”) of Travelport has been formed and (y) copies of all Organization Documents of
Travelport Guarantor, each in form and substance reasonably satisfactory to the Required Extended
Tranche A Lenders. As of the Restatement Effective Date, Travelport Guarantor shall be in good
standing and existing under the laws of the jurisdiction of its organization and its Organization
Documents shall be in full force and effect.
(i) Concurrently with the effectiveness of the Restated Credit Agreement, (i) the Borrower
shall have delivered to the Administrative Agent fully executed copies of the
Shareholders Agreement, and Registration Rights Agreement and
Equity Escrow Agreement, each in form and substance reasonably satisfactory to a
majority of the New Restatement Date Holders, and (ii) the
Shareholders Agreement, and Registration Rights Agreement and
Equity Escrow Agreement shall be in full force and effect and (iii) the
Shareholders’ Agreement will be executed by Blackstone Management Partners L.L.C. (formerly known
as Blackstone Management Partners V L.L.C.) only with respect to the provisions related to the
additional payment to be made to the New Equity Holders in connection with certain lump sum amounts
otherwise payable to Blackstone Management Partners L.L.C. (formerly known as Blackstone Management
Partners V L.L.C.) fees by under the Transaction Monitoring and Fee Agreement, dated as of August
23, 2006, among Opco, Blackstone Management Partners L.L.C. (formerly known as Blackstone
Management Partners V L.L.C.) and, TCV VI Management L.L.C. (as amended or modified from time to
time) and the tax treatment of same.
8
(j) The Administrative Agent shall have received a form UCC-1 financing statement, naming
Travelport Guarantor as debtor and the Administrative Agent as secured party, in proper form for
filing with the Secretary of State of the State of Delaware.
(k) Concurrently with the effectiveness of the Restated Credit Agreement, Travelport Worldwide
shall have issued 1540% of its fully diluted
common shares directly to the Lenders under the terms set forth in the RSA, with an
additional 25% of its fully diluted shares being issued to a third party escrow account as set
forth in the Escrow Agreement as required by the RSA.
(l) The Fourth Amendment and Restatement Agreement, dated as of • , 2011 in a form consistent
with the RSA, to the Third Amended and Restated Credit Agreement, dated as of August 23, 2006,
among Travelport LLC, Travelport limited, Waltonville Limited, UBS AG, Stamford Branch, UBS Loan
Finance LLC, the lender parties thereto, Credit Suisse Securities (USA) LLC and the other parties
thereto shall be in full force and effect.
(m) Travelport Worldwide shall (1) hold no assets other than Equity Interests in Borrower and
(2) have no liabilities other than its obligations under the Shareholders’ Agreement, and a
Responsible Officer of Parent shall certify that clauses (1) and (2) above of this subsection (m)
are true and correct.
(n) If the Chapter 11 Plan is effective by its terms, Blackstone Capital
Partners (Cayman) V L.P.; Blackstone Capital Partners (Cayman) V-A L.P.; BCP (Cayman) V-S L.P.;
Blackstone Family Investment Partnership (Cayman) V L.P.; Blackstone Family Investment Partnership
(Cayman) V-SMD L.P.; Blackstone Participation Partnership (Cayman) V L.P.; and BCP V Co-Investors
(Cayman) L.P. and each of their successors and assigns with respect to their interests in TDS
Investor (Cayman) L.P., and TDS Investor (Cayman) L.P. shall execute and deliver mutual releases in
a form consistent with the RSA and as set forth in the Chapter 11 Plan.
(o) The RSA shall be in full force and effect.
(p) The Chapter 11 Plan shall be effective, if necessary.
(q) The Lenders shall have received all customary documentation and other information
reasonably requested by the Lenders and required by bank regulatory authorities under applicable
“know your customer” and anti-money laundering rules and regulations, including the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001) the “PATRIOT Act”).
(r) TDS Investor (Cayman), L.P. shall have affirmed, pursuant
to documentation reasonably satisfactory to the Required Lenders, that it or its designee(s) will
offer to purchase and have the necessary resources to purchase, on or promptly following the
Restatement Effective Date, at least $40,000,0000 aggregate principal amount of Extended Tranche A
Loans from all of the holders thereof at par on a pro rata
9
basis, on terms consistent with the form of assignment and assumption agreement to be
attached to the Restated Credit Agreement.
SECTION 7. SECTION 6. Effect of this
Amendment; Certain Authorizations. (a) Except as expressly set forth herein, including in the
Restated Credit Agreement, this Amendment (i) shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the Agents, or the Lenders
under the Existing Credit Agreement or any other Loan Document, and (ii) shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Existing Credit Agreement or any other Loan Document, all of which are ratified
and affirmed in all respects and shall continue in full force and effect as amended and restated by
the Restated Credit Agreement. Nothing herein shall be deemed to entitle the Borrower to a consent
to, or a waiver, amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Restated Credit Agreement or any other Loan
Document in similar or different circumstances.
(b) On and after the Restatement Effective Date, each reference in the Existing Credit
Agreement or the Restated Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or
words of like import, and each reference to the Existing Credit Agreement in any other Loan
Document, shall be deemed to be a reference to the Restated Credit Agreement as amended and
restated hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Existing
Credit Agreement, the Restated Credit Agreement and the other Loan Documents.
(c) The Lenders party hereto hereby authorize the Required Lenders to enter into such
amendment or amendments to the Restated Credit Agreement or any other Loan Document as shall be
appropriate, in the judgment of the Required Lenders, to give effect to the transactions
contemplated hereby (including the Conversion) or to cure any ambiguity, omission, defect or
inconsistency relating to effectuation of the transactions contemplated hereby.
(d) Each Lender party hereto (i) acknowledges that it has made its own analysis and decision
to enter into this Amendment, the Restated Credit Agreement and the other Loan Documents being
executed or agreed to in connection herewith, and that neither the Administrative Agent or any of
its officers, directors, employees, agents or attorneys-in-fact has made any express or implied
representation or warranty, or shall be deemed to have any responsibility or duty, with respect to
the completeness, sufficiency or performance thereof, and (ii) by delivering its signature page to
this Amendment shall be deemed to have acknowledged receipt of, and consented to and approved, each
Loan Document, each Travelport Guarantor Loan Document and each other document required to be
delivered to, or be approved by or satisfactory to, the Administrative Agent on the Restatement
Effective Date pursuant to the terms hereof.
(e) The Borrower reserves the right to alter, amend, or
modify this Amendment, at any time prior to the Restatement Effective Date, however, the Borrower
shall not be entitled to alter, amend, or modify this Amendment without the consent of (i)
10
the Required Lenders and (ii) effected Lenders if the proposed alteration, amendment or
modification materially and adversely changes the treatment of such Lender.
SECTION 8. SECTION 7. Counterparts.
This Amendment may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument. Delivery by
electronic transmission of an executed counterpart of a signature page to this Amendment shall be
effective as delivery of an original executed counterpart of this Amendment.
SECTION 9. SECTION 8. Governing Law.
(a) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AMENDMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS
AMENDMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AMENDMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH PARTY HERETO IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
SECTION 10. SECTION 9. Headings.
Section headings used herein are for convenience of reference only, are not part of this Amendment
and shall not affect the construction of, or be taken into consideration in interpreting, this
Amendment.
[Remainder of page intentionally left blank]
11
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Existing Administrative Agent, |
||||
| by | ||||
| Name: | ||||
| Title: | ||||
| by | ||||
| Name: | ||||
| Title: | ||||
13
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Successor Administrative Agent, |
||||
| by | ||||
| Name: David Bergstrom | ||||
| Title: Vice President | ||||
| Name of Lender: | ||||
| by | ||||
| Name: | ||||
| Title: | ||||
| For any Person requiring a second signature block: | ||||
| by | ||||
| Name: | ||||
| Title: | ||||
EXHIBIT A
TO
AMENDMENT AGREEMENT
AMENDED AND RESTATED PIK LOAN CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as
of [•], 2011,
among
TRAVELPORT HOLDINGS LIMITED,
as Borrower,
as Borrower,
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Administrative Agent,
THE LENDERS PARTY HERETO,
UBS SECURITIES LLC and
LEHMAN COMMERCIAL PAPER INC.,
as Co-Syndication Agents,
LEHMAN COMMERCIAL PAPER INC.,
as Co-Syndication Agents,
CREDIT SUISSE SECURITIES (USA) LLC and
UBS SECURITIES LLC,
as Co-Lead Arrangers,
UBS SECURITIES LLC,
as Co-Lead Arrangers,
and
CREDIT SUISSE SECURITIES (USA) LLC
UBS SECURITIES LLC
LEHMAN BROTHERS INC.
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
GOLDMAN SACHS CREDIT PARTNERS L.P.
J.P. MORGAN SECURITIES INC. and
MORGAN STANLEY SENIOR FUNDING INC.,
as Joint Bookrunners
UBS SECURITIES LLC
LEHMAN BROTHERS INC.
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
GOLDMAN SACHS CREDIT PARTNERS L.P.
J.P. MORGAN SECURITIES INC. and
MORGAN STANLEY SENIOR FUNDING INC.,
as Joint Bookrunners
Section 10.10 Interest Rate Limitation |
132 | |||
Section 10.11 Counterparts |
133 | |||
Section 10.12 Integration |
133 | |||
Section 10.13 Survival of Representations and Warranties |
133 | |||
Section 10.14 Severability |
133 | |||
Section 10.15 GOVERNING LAW |
133 | |||
Section 10.16 WAIVER OF RIGHT TO TRIAL BY JURY |
134 | |||
Section 10.17 Binding Effect |
134 | |||
Section 10.18 Judgment Currency |
134 | |||
Section 10.19 Lender Action |
135 | |||
Section 10.20 USA PATRIOT Act |
135 |
| SCHEDULES | ||
2.01A
|
Extended Tranche A Loans and Extended Tranche B Loans | |
10.02
|
Administrative Agent’s Office, Certain Addresses for Notices | |
A
|
New Equity Holders | |
| EXHIBITS | ||
| Form of | ||
A
|
Committed Loan Notice | |
B
|
Extended Tranche A Note | |
C
|
Extended Tranche B Note | |
D
|
Assignment and Assumption | |
E
|
Escrow Agreement | |
F
|
Guaranty | |
G
|
Subscription Agreement | |
iv
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT (this
“Agreement”), dated as of [•], 2011, among
TRAVELPORT HOLDINGS LIMITED, a company incorporated under
the laws of Bermuda (the “Borrower”), Credit Suisse AG, Cayman Islands
BranchWELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent,
each lender from time to time party hereto (collectively, the “Lenders”) and UBS SECURITIES LLC and
LEHMAN COMMERCIAL PAPER INC., as Co-Syndication Agents.
PRELIMINARY STATEMENTS
The Borrower, Credit Suisse AG, Cayman Islands Branch, as the
Administrative
Agentadministrative agent thereunder, the lenders
party thereto and the other financial institutions and Persons party thereto have previously
entered into a Credit Agreement, dated as of March 27, 2007 (as amended thereafter but prior to the
Restatement Effective Date (as defined below), the “Original Credit Agreement”).
The maturity of the indebtedness outstanding under the Original Credit
Agreement requires the restructuring of the indebtedness of the Borrower and certain of its
direct and indirect subsidiaries, including without limitation Travelport LLC.
On the Restatement Effective Date, at the request of the Borrower in connection with the
financial restructuring of the Borrower to be consummated out-of-court or in connection with a
Chapter 11 Plan as contemplated by the RSA, (a) the Original Credit Agreement has been amended and
restated in the form of this Agreement, (b) certain Existing Loans (as defined below) have been
repaid as set forth in the First Amendment and Restatement Agreement (as defined below), (c) the
Exchange (as defined below) has been consummated pursuant to the First Amendment and Restatement
Agreement and (d) all other Existing Loans, after giving effect to the prepayments and the Exchange
described above, have been converted to Extended Tranche A Loans or Extended Tranche B Loans
pursuant to the First Amendment and Restatement Agreement. In connection therewith and to induce
the Lenders to agree to such amendment and restatement, Travelport Limited has agreed to make, and
has made, extensions of credit to Travelport LLC under and pursuant to the terms of the Second Lien
Credit Agreement (as defined below) on or prior to the Restatement Effective Date.
From and after the Restatement Effective Date, the Extended Tranche A Loans and the Extended
Tranche B Loans shall be governed in all respects by the terms and conditions of this Agreement.
1
“Adjusted LIBO Rate” shall mean, with respect to any Eurocurrency Rate Loan for any Interest
Period, an interest rate per annum equal to the LIBO Rate in effect for such Interest Period
multiplied by a fraction (expressed as a decimal), the numerator of which is one (1.00) and the
denominator of which is one (1.00) minus the applicable Statutory Reserves for such Interest
Period.
“Administrative Agent” means Credit SuisseWells Fargo Bank, National
Association (as defined below), in its capacity as administrative agent under the Loan
Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 10.02, or such other address or account as the
Administrative Agent may from time to time notify the Borrower and the Lenders.
“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly,
through one or more intermediaries, Controls or is Controlled by or is under common Control with
the Person specified, and shall be deemed to include each Person or “group” (within the meaning of
Section 13(d)(3) or Section l4(d)(2) of the Exchange Act, Rule 16a-l(2) under the Exchange Act or
any successor provision of any of these provisions) that, directly or indirectly, through one or
more intermediaries, beneficially owns (within the meaning of Section 13(d)(3) or Section l4(d)(2)
of the Exchange Act, Rule 16a-l(2) under the Exchange Act or any successor provision of any of
these provisions) or Controls 10% or more of the voting stock of the Person specified. “Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person whether through the ability to exercise voting power, by
contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
Notwithstanding anything herein to the contrary, for purposes of this Agreement, the other Loan
Documents and the Travelport Guarantor Loan Documents, no New Equity Holder shall be deemed, solely
by reason of its holdings of Equity Interests of the Borrower (or any of its direct or indirect
parent companies) issued in connection with the Transaction to be an Affiliate of the Borrower or
an Affiliate of any other Person that would be deemed to be an Affiliate of the Borrower pursuant
to this definition.
“Affiliated Lender” means (a) a Lender that is an Affiliate of the Borrower, a Permitted
Holder or an Affiliate of a Permitted Holder (other than Investment Funds), (b) a member of a “group” (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act or any successor provision) in which another member of such group is
an Affiliated Lender, or (c) a Permitted Holder. Notwithstanding anything herein to the contrary,
no New Equity Holder shall be deemed, solely by reason of its holdings of Equity Interests of the
Borrower (or any of its direct or indirect parent companies) issued in connection with the
Transaction to be an Affiliated Lender.
3
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.
“Base Rate” means, for any day, a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as
announced to the Borrower from time to time by Credit SuisseWells
Fargo as its “prime rate.” The “prime rate” is a rate set by Credit
SuisseWells Fargo based upon various factors, including Credit
Suisse’sWells Fargo’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in such rate announced by Credit
SuisseWells Fargo shall take effect at the opening of business on the day
specified in the announcement of such change.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Borrower” has the meaning specified in the introductory paragraph to this Agreement.
“Borrower Exception” has the meaning specified in Section 7.07(a).
“Borrower Materials” has the meaning specified in Section 10.02(a).
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the state where the
Administrative Agent’s Office with respect to Obligations under this Agreement is located and, if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan, any fundings,
disbursements, settlements and payments in respect of any such Eurocurrency Rate Loan, or any other
dealings to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate
Loan, means any such day on which dealings in deposits in Dollars are conducted by and between
banks in the London interbank eurodollar market.
“Capital Stock” means:
(a) in the case of a corporation, corporate stock;
(b) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
7
(ii) to maintain working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, or
(c) to purchase property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation against loss in respect thereof.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such
Person or of any agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
“Control” has the meaning specified in the definition of “Affiliate”.
“Conversion” has the meaning specified in Section 2.01(b)(iii).
“Covenant Suspension Event” has the meaning specified in Section 7.14(a).
“Credit Facilities” means, with respect to the Borrower or any of its Restricted Subsidiaries,
one or more debt facilities, including the Senior Credit Facilities and the Second Lien Credit
Facilities, or other financing arrangements (including commercial paper facilities or indentures)
providing for revolving credit loans, term loans, letters of credit or other long-term
indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and any amendments, supplements, modifications,
extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or
commercial paper facilities that replace, refund or refinance any part of the loans, notes, other
credit facilities or commitments thereunder, including any such replacement, refunding or
refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or
alters the maturity thereof (provided that such increase in borrowings is permitted under
Section 7.07) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and
whether by the same or any other agent, lender or group of lenders.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
15
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock, but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock.
“Equity Offering” means any public or private sale of common stock or Preferred Stock of the
Borrower or any of its direct or indirect parent companies (excluding Disqualified Stock), other
than:
(a) public offerings with respect to the Borrower’s or any direct or indirect parent company’s
common stock registered on Form S-8;
(b) issuances to any Subsidiary of the Borrower; and
(c) any such public or private sale that constitutes an Excluded Contribution.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is under
common control with the Borrower or any Restricted Subsidiary within the meaning of Section 414 of
the Code or Section 4001 of ERISA.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
the Borrower or any Restricted Subsidiary or any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any
Restricted Subsidiary or any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an
event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any Restricted Subsidiary or any ERISA
Affiliate.
20
“Escrow Agent” means the escrow agent party to the Escrow Agreement.
“Escrow Agreement” means the Escrow and Security Agreement executed
byamong Travelport Guarantor, the Administrative Agent and the Escrow
Agent, substantially in the form of Exhibit E, to be executed upon the terms and condition
set forth in the Subscription Agreement.
“Escrow Exchange” has the meaning specified in the Escrow Agreement.
“Escrow Trigger Event”
has the meaning specified in the Escrow Agreement.
“Escrowed Property” has the meaning specified in
the Escrow Agreement.
“Euro” means the lawful currency of the Participating Member States introduced in accordance
with EMU Legislation.
“Eurocurrency Rate” means, when used in reference to any Loan, a reference to whether such
Loan is bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the Eurocurrency
Rate.
“Event of Default” has the meaning specified in Section 8.01(a).
“Excess Proceeds” has the meaning specified in Section 7.08(c).
“Exchange” has the meaning specified in the First Amendment and Restatement Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.
“Excluded Contribution” means an “Excluded Contribution” under any Senior Notes Indenture or
the Senior Subordinated Notes Indenture.
21
Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Credit SuisseWells Fargo on
such day on such transactions as determined by the Administrative Agent.
“First Amendment” means the First Amendment dated as of December 4, 2008 among the Borrower,
the Administrative Agent and the Required Lenders.
“First Amendment and Restatement Agreement” means that certain First Amendment and Restatement
Agreement, dated as of [•], 2011, among the Borrower, the Administrative Agent and the Lenders
party thereto.
“First Amendment Effective Date” has the meaning specified in Section 4 of the First
Amendment.
“First Amendment Equity Contribution” means the common equity contribution (for no
consideration from the Borrower other than additional common Equity Interests in the Borrower) made
by the Parent to the Borrower of $35.0 million in cash and 9,120,378 shares of Orbitz pursuant to
the First Amendment; provided that any such shares of Orbitz may be replaced with cash at a price
per share equal to the greater of (a) $3.00 and (b) the volume weighted average trading price for
the previous 30 trading days prior to the date on which the First Amendment Equity Contribution is
made.
“Fixed Charge Coverage Ratio” means, with respect to any Person for any period, the ratio of
EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the
event that the Borrower or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires
or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit
facility unless such Indebtedness has been permanently repaid and has not been replaced) or issues
or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for
which the Fixed Charge Coverage Ratio is being calculated but prior to or simultaneously with the
event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Fixed Charge
Coverage Ratio Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or
extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred
Stock, as if the same had occurred at the beginning of the applicable four-quarter period.
For purposes of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations and disposed operations (as determined in accordance with
GAAP) that have been made by the Borrower or any of its Restricted Subsidiaries during the
four-quarter reference period or subsequent to such reference period and on or prior to or
simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a pro
forma basis assuming that all such Investments, acquisitions, dispositions,
23
“guarantee” means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including
letters of credit and reimbursement agreements in respect thereof), of all or any part of any
Indebtedness or other obligations.
“Guaranty”
means the Guaranty executed by Travelport Guarantor, substantially
in the form of Exhibit F, to be executed upon the terms and condition set forth in the
Subscription Agreement.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or pollutants, including petroleum or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under
any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement,
commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange
contract, currency swap agreement or similar agreement providing for the transfer or mitigation of
interest rate or currency risks either generally or under specific contingencies.
“High Yield Notes” means the Senior Notes and Senior Subordinated Notes.
“High Yield Notes Documentation” means the High Yield Notes, and all documents executed and
delivered with respect to the High Yield Notes, including the Senior Notes Indentures and the
Senior Subordinated Notes Indenture.
“incur” or “incurrence” has the meaning specified in Section 7.07(a).
“Indebtedness” means, with respect to any Person, without duplication:
(a) any indebtedness (including principal and premium) of such Person, whether or not
contingent:
(i) in respect of borrowed money;
26
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or
consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in
the good faith judgment of the Borrower, qualified to perform the task for which it has been
engaged.
“Information” has the meaning specified in Section 10.08.
“Interest Payment Date” means, (a) as to any Eurocurrency Rate Loan, the last day of each
Interest Period applicable to such Loan and the Maturity Date applicable to such Loan and (b) as to
any Base Rate Loan, the last Business Day of each March, June, September and December and the
Maturity Date applicable to such Loan.
“Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date
such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan
and ending on the date three months thereafter; provided that:]
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the end of such
Interest Period;
(c) no Interest Period shall extend beyond the Maturity Date applicable to such Loan; and
(d) the Interest Period for any Eurocurrency Rate Loan outstanding prior to the Restatement
Effective Date shall terminate on the Restatement Effective Date; provided that the provisions of
Section 3.05 shall not apply to this clause (d).
“Investment Fund” means an Affiliate of TDS Investor (Cayman) L.P. that is primarily
engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing,
holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the
ordinary course and with respect to which TDS Investor (Cayman) L.P. does not, directly or
indirectly, actually direct or cause the direction of the investment policies of such entity.
28
“Lender” has the meaning specified in the introductory paragraph to this
Agreement and their respective successors and assigns as permitted hereunder, each of which is
referred to herein as a “Lender.” “Lender” also means an Extended Tranche A Lender or Extended
Tranche B Lender, as the context may require.
“Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or
offices as a Lender may from time to time notify the Borrower and the Administrative
Agent.
“LIBO Rate” means, with respect to any Eurocurrency Rate Loan for any Interest Period, the
rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on
the date that is two Business Days prior to the commencement of such Interest Period by reference
to the British Bankers’ Association Interest Settlement Rates for deposits in Dollars (as set forth
by Bloomberg Information Service or any successor thereto or any other service selected by the
Administrative Agent which has been nominated by the British Bankers’ Association as an authorized
information vendor for the purpose of displaying such rates) for a period equal to such Interest
Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum
determined by the Administrative Agent to be the average of the rates per annum at which deposits
in Dollars are offered for such relevant Interest Period to major banks in the London interbank
market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on
the date that is two Business Days prior to the beginning of such Interest Period.
“Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge,
hypothecation, charge, security interest, preference, priority or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in the nature thereof,
any option or other agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction; provided that in no event shall an operating lease be deemed to constitute a
Lien.
“Loan” means each Extended Tranche A Loan or Extended Tranche B Loan, as the context may
require.
“Loan Documents” means, collectively, (i) this Agreement and (ii) the Notes.
“Management Incentive Plan” has the meaning specified in the Shareholders Agreement.
31
“Material Adverse Effect” means (a) a material adverse effect on the business, operations,
assets, liabilities (actual or contingent) or financial condition of the Borrower and its
Subsidiaries, taken as a whole, (b) a material adverse effect on the ability of the Borrower to
perform its respective payment obligations under any Loan Document or (c) a material adverse effect
on the rights and remedies of the Lenders or the Agents under any Loan Document.
“Maturity Date” means (a) with respect to the Extended Tranche A Loans, the earlier of (i)
September 30, 2012 and (ii) (or if the
Permitted Transfer Date or Travelport Guarantor Transfer have not occurred by such
date, December 1, 2016 and (ii) the date on which all Extended Tranche A Loans
shall become due and payable in full hereunder, whether by acceleration or otherwise, and (b) with
respect to the Extended Tranche B Loans, the earlier of (i) December 1, 2016 and (ii) the date on
which all Extended Tranche B Loans shall become due and payable in full hereunder, whether by
acceleration or otherwise.
“Maximum Rate” has the meaning specified in Section 10.10.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency
business.
“Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any Restricted Subsidiary or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan years, has made or
been obligated to make contributions.
“Net Income” means, with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends.
“Net Proceeds” means the aggregate cash proceeds received by the Borrower or any of its
Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon the sale or
other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of the
direct costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash
Consideration, including legal, accounting and investment banking fees, and brokerage and sales
commissions, any relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or deductions and any tax
sharing arrangements), amounts required to be applied to the repayment of principal, premium, if
any, and interest on Senior Indebtedness or Indebtedness of any Subsidiary required (other than
required by clause (i) of Section 7.08(b)) to be paid as a result of such transaction and any
deduction of appropriate amounts to be provided by the Borrower or any of its Restricted
Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset
disposed of in such transaction and retained by the Borrower or any of its Restricted Subsidiaries
after such sale or other disposition thereof, including pension and
32
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any Restricted Subsidiary or any ERISA Affiliate or
to which the Borrower or any Restricted Subsidiary or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer or other plan described in Section
4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) plan
years.
“Permitted Asset Swap” means the concurrent purchase and sale or exchange of Related Business
Assets or a combination of Related Business Assets and cash or Cash Equivalents between the
Borrower or any of its Restricted Subsidiaries and another Person; provided, that any cash or Cash
Equivalents received must be applied in accordance with Section 7.08.
“Permitted Holders” means each of the Investors who, on the
Original
IssueClosing Date, are holders of Equity
Interests of the Borrower (or any of its direct or indirect parent companies) and each of the
members of management of the Borrower (or its direct parent) who are holders of Equity Interests of
the Borrower (or any of its direct or indirect parent companies) pursuant to the Management
Incentive Plan and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act or any successor provision) of which any of the foregoing are members;
provided, that, in the case of such group and without giving effect to the existence of
such group or any other group, such Investors and members of management, collectively, have
beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Borrower
or any of its direct or indirect parent companies.
“Permitted Investments” means:
(a) any Investment in the Borrower or any of its Restricted Subsidiaries;
(b) any Investment in cash and Cash Equivalents or Investment Grade Securities;
(c) any Investment by the Borrower or any of its Restricted Subsidiaries in a Person that is
engaged in a Similar Business if as a result of such Investment:
(i) such Person becomes a Restricted Subsidiary; or
(ii) such Person, in one transaction or a series of related transactions, is merged
or consolidated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Borrower or a
Restricted Subsidiary,
35
“Permitted Transfer Date” shall mean the earlier of (i) the date on which the
Favorable Ruling Condition (as such term is defined in the Subscription Agreement) is satisfied or
(ii) the date on which Travelport, in its absolute and sole discretion, at any time prior to the
satisfaction of the Favorable Ruling Condition (as such term is defined in the Subscription
Agreement) elects to enter into and cause Travelport Guarantor to enter into the Subscription
Agreement.
“Person” means any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA),
other than a Foreign Plan, established by the Borrower or any Restricted Subsidiary or, with
respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
“Platform” has the meaning specified in Section 10.02(a).
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends
or upon liquidation, dissolution, or winding up.
“Pro Rata Share” means, with respect to each Lender at any time a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is the amount of the
Loans outstanding of the applicable Class or Classes of such Lender at such time and the
denominator of which is the aggregate Outstanding Amount of Loans of the applicable Class or
Classes at such time; provided that if all Loans have been repaid, then the Pro Rata Share of each
Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such
repayment; provided further that the Pro Rata Share of each Lender shall be determined based on the
Pro Rata Share of such Lender after giving effect to any assignments made pursuant to the terms
hereof.
“Public Lender” has the meaning specified in Section 10.02(a).
“Qualified Proceeds” means the fair market value of assets that are used or useful in, or
Capital Stock of any Person engaged in, a Similar Business.
“Qualifying IPO” means the issuance by the Borrower, the Parent or any direct or indirect
holding company of the Borrower of its Capital Stock in an underwritten primary public offering
(other than a public offering pursuant to a registration statement on Form S-8) pursuant to an
effective registration statement filed with the SEC in accordance with the Securities Act (whether
alone or in connection with a secondary public offering) or a London
41
Stock Exchange “listing” or similar public issuance on another major exchange which generates Net
Proceeds of at least $400 million.
“Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating
on the Loans publicly available, a nationally recognized statistical rating agency or agencies, as
the case may be, selected by the Borrower which shall be substituted for Moody’s or S&P or both, as
the case may be.
“Receivables Facility” means any of one or more receivables financing facilities as amended,
supplemented, modified, extended, renewed, restated or refunded from time to time, the Obligations
of which are non-recourse (except for customary representations, warranties, covenants and
indemnities made in connection with such facilities) to the Borrower or any of its Restricted
Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Borrower or any of its
Restricted Subsidiaries sells its accounts receivable to either (a) a Person that is not a
Restricted Subsidiary or (b) a Receivables Subsidiary that in turn sells its accounts receivable to
a Person that is not a Restricted Subsidiary.
“Receivables Fees” means distributions or payments made directly or by means of discounts with
respect to any accounts receivable or participation interest therein issued or sold in connection
with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any
Receivables Facility.
“Receivables Subsidiary” means any Subsidiary formed for the purpose of, and that solely
engages only in one or more Receivables Facilities and other activities reasonably related thereto.
“Refinancing Indebtedness” has the meaning specified in Section 7.07(b)(xiii).
“Refunding Capital Stock” has the meaning specified in Section 7.05(b)(ii).
“Register” has the meaning specified in Section 10.07(d).
“Registration
Rights Agreement” means the Registration Rights Agreement, dated [•], among
Parent, Travelport Intermediate Limited and the
shareholder parties therein.
“Related Business Assets” means assets (other than cash or Cash Equivalents) used or useful in
a Similar Business, provided that any assets received by the Borrower or a Restricted
Subsidiary in exchange for assets transferred by the Borrower or a Restricted Subsidiary shall not
be deemed to be Related Business Assets if they consist of securities of a
42
“Restricted Subsidiary” means, with respect to any Person at any time, any direct or indirect
Subsidiary of such Person (including any Foreign Subsidiary) that is not then an Unrestricted
Subsidiary; provided, however, that upon an Unrestricted Subsidiary of such Person
ceasing to be an Unrestricted Subsidiary of such Person, such Subsidiary shall be included in the
definition of “Restricted Subsidiary” with respect to such Person. Unless otherwise indicated,
references to “Restricted Subsidiary” herein shall refer to Restricted Subsidiaries of the
Borrower.
“Reversion Date” has the meaning specified in Section 7.14(c).
“RSA” means that certain Travelport Holdings Limited Restructuring Support Agreement and
attached term sheet dated as of September 17, 2011, as amended on September 28, 2011,
by and among the Borrower, Parent, TDS Investor (Cayman) L.P., Angelo, Gordon & Co. and
R2 Top Hat, Ltd.
“S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any
successor to its rating agency business.
“Same Day Funds” means immediately available funds.
“Sale and Lease-Back Transaction” means any arrangement providing for the leasing by the
Borrower or any of its Restricted Subsidiaries of any real or tangible personal property, which
property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to
a third Person in contemplation of such leasing.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.
“Second Commitment” has the meaning specified in Section 7.08(b).
“Second Lien Consummation Date” means “Consummation Date” (as defined in the Second Lien
Credit Agreement).
“Second Lien Credit Agreement” means the Second Lien Credit Agreement dated as of
[•], 2011 by and among Travelport, Waltonville
Limited, TDS Investor
(Luxembourg) S.a.r.l., Opco, the lenders party thereto in their capacities as lenders thereunder
and Credit Suisse AG, Cayman Islands BranchWells Fargo Bank,
National Association, as administrative agent, as amended, amended and restated,
supplemented or otherwise modified in accordance with the terms thereof.
44
“Senior Notes” means, collectively, the 2014 Senior Notes and the 2016 Senior Notes.
“Senior Notes Indentures” means, collectively, the 2014 Senior Notes Indenture and the 2016
Senior Notes Indenture.
“Senior Subordinated Notes” means, collectively, (a) $300,000,000 in aggregate principal
amount of Opco’s
117/8%
senior subordinated notes due 2016 and (b) €160,000,000 in aggregate principal amount
of Opco’s
107/8% senior euro fixed rate notes due 2016.
“Senior Subordinated Notes Indenture” means the Indenture for the Senior Subordinated Notes,
dated as of August 23, 2006.
“Settlement Date” means the date on which all Obligations under the Extended Tranche A Loans
are paid in full in cash or the Escrow Exchange is consummated pursuant to the terms of the Escrow
Agreement.
“Shareholders Agreement” means the
ShareholdersShareholders’ Agreement, dated
[•], 2011, among Parent, Travelport GuarantorIntermediate
Limited, TDS Investor (Cayman), L.P. and .,
the shareholder parties therein and as to certain provisions, Blackstone
Management Partners L.L.C. (formerly known as Blackstone Management Partners V L.L.C.), in the form
reasonably satisfactory to the Required Lenders.
“Significant Subsidiary” means any Restricted Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such regulation is in effect on the Restatement Effective Date.
“Similar Business” means any business conducted or proposed to be conducted by the Borrower
and its Restricted Subsidiaries on the Original Closing Date or any business that is similar,
reasonably related, incidental or ancillary thereto.
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that
on such date (a) the fair value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person, (b) the present fair salable value
of the assets of such Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or a transaction, for which such
Person’s property
would constitute an unreasonably small capital. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts
47
and circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
“SPC” has the meaning specified in Section 10.07(h).
“Sponsor Management Agreement” means the management agreements between certain of the
management companies associated with the Investors and Travelport, including the Transaction and
Monitoring Fee Agreement dated as of August 23, 2006 among Blackstone Management Partners
V, L.L.C.,. (formerly known as
Blackstone Management Partners V L.L.C.), TCV VI Management L.L.C. and TDS Investor
Corporation, as amended, modified, supplemented, restated or replaced from time to time, including
by the Transaction and Monitoring Fee Agreement Notice dated December 7, 2007 and the Transaction
and Monitoring Fee Agreement dated May 8, 2008.
“Statutory Reserves” means, for any Interest Period for any Eurocurrency Rate Loan in Dollars,
the average maximum rate at which reserves (including any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest Period under Regulation D by member
banks of the United States Federal Reserve System in New York City with deposits exceeding one
billion dollars against “Eurocurrency liabilities” (as such term is used in Regulation D).
Eurocurrency Rate Loans shall be deemed to constitute Eurocurrency liabilities and to be subject to
such reserve requirements without benefit of or credit for proration, exceptions or offsets which
may be available from time to time to any Lender under Regulation D.
“Subordinated
Indebtedness” means any Indebtedness (excluding any Indebtedness or other Obligations under the Loan Documents or the Travelport Guarantor Loan
Documents) of the Borrower which is by its terms subordinated in right of payment to the Loans.
“Subscription Agreement” means the Subscription Agreement to be entered into between
Travelport and Travelport Guarantor upon the terms and condition set forth therein, substantially
in the form of Exhibit G.
“Subsidiary” means, with respect to any Person:
(a) any corporation, association, or other business entity (other than a partnership, joint
venture, limited liability company or similar entity) of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time of determination
owned or controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof or is consolidated under GAAP with such Person
at such time; and
48
a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Taxes” has the meaning specified in Section 3.01(a).
“Total Assets” means the total assets of the Borrower and its
Restricted
Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Borrower or
such other Person as may be expressly stated.
“Total Outstandings” means the aggregate Outstanding Amount of
all Loans.
“Tranche A Conversion” has the meaning specified in Section
2.01(b)(ii).
“Tranche B Conversion” has the meaning specified in Section
2.01(b)(iii).
“Transaction” means, collectively, (a) the amendment and restatement of the Senior Credit
Facilities, (b) the execution and delivery of documentation governing the Second Lien Credit
Facilities and borrowings thereunder on or prior to the Restatement Effective Date, (c) the
formation of Travelport Guarantor, (d) the amendment and restatement of the Original Credit
Agreement pursuant to the First Amendment and Restatement Agreement, (e) the sale of the Second
Lien Loans in an aggregate principal amount of $342,500,000 to Travelport by Opco in exchange for
the Travelport Intercompany Note, (f) the contribution of the Second Lien Tranche A
Loans in an aggregate principal amount of $135,000,000 by Travelport to Travelport
Guarantor as a capital contributionTransfer upon the terms
and conditions set forth in the Subscription Agreement, (g) a cash dividend in the
amount of $89,500,000 from Travelport to the Borrower and the application of $85,000,000 thereof by
the Borrower to prepay Existing Loans hereunder, on a pro rata basis, on or prior to the
Restatement Effective Date, (h) the distribution of the Second Lien Tranche B Loans in an aggregate
principal amount of $207,500,000 by Travelport to the Borrower, and to the Lenders pursuant to the
Exchange, (i) the execution and delivery of the Guaranty and Escrow Agreement by Travelport
Guarantor upon the terms and conditions set forth in the Subscription
Agreement, (j) the execution and delivery of the Shareholders Agreement, the
Registration Rights Agreement and the Equity Escrow Agreement and the
issuance of Equity Interests of the Borrower (or any of its direct or indirect
parent companies) pursuant to the terms thereofof the
RSA, (k) the execution and delivery of the Subscription Agreement upon the
terms and condition set forth therein, (l) the consummation of any other transactions
incidental to any of the foregoing and (lm) the
payment of fees and expenses in connection with any such other transaction or any of the foregoing.
“Travelport” means Travelport Limited, a company incorporated under the laws of Bermuda.
50
“Travelport Entities” means Travelport and its Restricted
Subsidiaries.
“Travelport Exception” has the meaning specified in Section
7.07(a).
“Travelport Guarantor” means Travelport Guarantor LLC, a Delaware limited liability company.
“Travelport Guarantor Loan Documents” means, collectively, the Escrow and
Security Agreement and the Guaranty, the Subscription Agreement, the
certificate of formation and operating agreement of Travelport Guarantor.
“Travelport Guarantor Transfer” means the transfer of the note representing the
Second Lien Tranche A Loans in an aggregate principal amount of $135,000,000, plus accrued and
unpaid interest (and interest paid in kind) to Travelport Guarantor as an investment in exchange
for additional equity interest in Travelport Guarantor upon the terms and conditions set forth in
the Subscription Agreement.
“Travelport Intercompany Note” means that certain subordinated promissory note, dated as of
the Restatement Effective Date made by Travelport to Opco in an amount equal to the initial
principal amount of the loans made under the Second Lien Credit Facilities.
“Treasury Capital Stock” has the meaning specified in Section
7.05(b)(ii).
“Type” means its character as a Base Rate Loan or a
Eurocurrency Rate Loan.
“Unaffiliated Lender” means any Lender that is not an Affiliated Lender.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time
to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or
statute) of another jurisdiction, to the extent it may be required to apply to any item or items of
collateral.
“United States” and “U.S.” mean the United States of America.
“Unrestricted Subsidiary” means:
(a) any Subsidiary of the Borrower which at the time of determination is an Unrestricted
Subsidiary (as designated by the Borrower, as provided below); and
51
or (2) the Fixed Charge Coverage Ratio for the Travelport Entities would be greater than such ratio
for the Travelport Entities immediately prior to such designation,
in each case on a pro forma basis taking into account such designation.
Any such designation by the Borrower shall be notified by the Borrower to the Administrative
Agent by promptly filing with the Administrative Agent a copy of the resolution of the board of
directors of the Borrower or any committee thereof giving effect to such designation and an
Officer’s Certificate certifying that such designation complied with the foregoing provisions.
Until the Settlement Date, Travelport Guarantor shall be an Unrestricted Subsidiary and
neither the Borrower nor any of its Subsidiaries shall be permitted to designate Travelport
Guarantor to be a Restricted Subsidiary. Upon and after the Settlement Date, the Borrower shall be
permitted to designate Travelport Guarantor to be a Restricted Subsidiary pursuant to the
provisions set forth above in this definition of “Unrestricted Subsidiary.”
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the board of directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified
Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing:
(a) the sum of the products of the number of years from the date of determination to the date
of each successive scheduled principal payment of such Indebtedness or redemption or similar
payment with respect to such Disqualified Stock or Preferred Stock multiplied by the amount of such
payment; by
(b) the sum of all such payments.
“Wells Fargo” means Wells Fargo Bank, National Association, and its
successors.
“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the
outstanding Equity Interests of which (other than directors’ qualifying shares) shall at the time
be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
53
received by the Administrative Agent not later than 12:00 p.m. (New York, New York time) three (3)
Business Days prior to the requested date of any continuation of Eurocurrency Rate Loans or any
conversion of Base Rate Loans to Eurocurrency Rate Loans. Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent
of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of
the Borrower. Each conversion to or continuation of Eurocurrency Rate Loans shall be in a principal
amount of $2,500,000 or a whole multiple of $500,000 in excess thereof. Each conversion to Base
Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting a conversion of Loans from one Type to the other, or a continuation of
Eurocurrency Rate Loans, (ii) the requested date of the conversion or continuation, as the case may
be (which shall be a Business Day), (iii) the principal amount and Class of Loans to be converted
or continued, and (iv) the Type of Loans to which existing Loans are to be converted. If the
Borrower fails to specify a Type of Loan in a Committed Loan Notice or fails to give a timely
notice requesting a conversion or continuation, then the applicable Loans shall be made as, or
converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective
as of the last day of the Interest Period then in effect with respect to the applicable
Eurocurrency Rate Loans.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Pro Rata Share of the applicable Class of Loans, and if no
timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate Loans or
continuation described in Section 2.02(a).
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan unless the
Borrower pays the amount due, if any, under Section 3.05 in connection therewith. During the
existence of an Event of Default, the Administrative Agent or the Required Lenders may require that
no Loans may be converted to Eurocurrency Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of
such interest rate. The determination of the Eurocurrency Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in
Credit Suisse’sWells Fargo’s prime rate used in
determining the Base Rate promptly following such change.
(e) After giving effect to all conversions of Loans from one Type to the other, and all
continuations of Loans as the same Type, there shall not be more than eight (8) Interest Periods in
effect.
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any prepayment of the Loans pursuant to this Section 2.03(a)(iii) will be made at par;
provided, that if the amount of such proceeds to be applied to such prepayments under
this Section 2.03(a)(iii) is insufficient to prepay the Loans in their entirety, then the
proceeds shall be applied to prepay, first, the Extended Tranche B Loans on a pro rata
basis, and second, the Extended Tranche A Loans on a pro rata basis, in each case,
subject to Section 8.10.
Section 2.04 [Reserved].
Section 2.05 Repayment of Loans.
(a) The Borrower shall repay to the Administrative Agent for the ratable account of the
Extended Tranche A Lenders on the Maturity Date applicable to the Extended Tranche A Loans, the
aggregate principal amount of all Extended Tranche A Loans outstanding on such date (including any
principal resulting from capitalization of accrued interest on such date); provided that
such obligation to repay the Extended Tranche A Lenders on the Maturity Date
applicable to the Extended Tranche A Loans may be satisfied by the Escrow Exchange.
It is understood and agreed that the aggregate amount of Escrowed Property delivered to the
Extended Tranche A Lenders pursuant to the Escrow Exchange shall satisfy and fully discharge the
Obligations comprising the Outstanding Amount of the Extended Tranche A Loans owed to the Extended
Tranche A Lenders. The Extended Tranche A Lenders and the Borrower agree that if all outstanding
Obligations under the Extended Tranche A Loans are not paid in cash on the Maturity
Date applicable to the Extended Tranche A Loans,by September 30, 2012, and
the Permitted Transfer Date has occurred then the Escrow Exchange shall be consummated
pursuant to the terms of the Escrow Agreement. All Extended Tranche A Loans shall be repaid,
whether pursuant to this Section 2.05 or otherwise, in Dollars (subject to the proviso in the first
sentence above of this clause (a)).
(b) The Borrower shall repay to the Administrative Agent for the ratable account of the
Extended Tranche B Lenders on the Maturity Date applicable to the Extended Tranche B Loans, the
aggregate principal amount of all Extended Tranche B Loans outstanding on such date (including any
principal resulting from capitalization of accrued interest on such date). All Extended Tranche B
Loans shall be repaid, whether pursuant to this Section 2.05 or otherwise, in Dollars.
Section 2.06 Interest.
(a) Subject to the provisions of Section 2.06(b), (i) each Eurocurrency Rate Loan shall bear
interest on the outstanding principal amount thereof for each Interest Period at a rate per annum
equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate and (ii) each Base
Rate Loan shall bear interest on the outstanding principal amount thereof
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from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate.
(b) The Borrower shall pay interest on past due amounts hereunder at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.
(c) Accrued interest on each Loan shall be capitalized as of and added to principal on (i)
each Interest Payment Date, (ii) without duplication, on the date of any prepayment (on the amount
prepaid), (iii) at maturity (whether by acceleration or otherwise) and (iv) after maturity, on the
last Business Day of each month; provided that the Borrower may, at its election, pay any such
accrued interest in cash; provided, however, that such interest payment is made entirely in cash.
The Borrower may make such election three Business Days prior to the date such interest is payable
and shall deliver to the Administrative Agent at least three Business Days prior to the date such
interest is payable, a written notice setting forth that such interest payment will be made in the
form of cash (and if no such notice is given, the Borrower shall be deemed not to have elected to
pay such interest in cash, and such interest shall be capitalized on the date it is payable without
further action or notice by any party) and provided further that the Borrower shall elect that such
interest shall be paid in cash so long as such cash payment is permitted under the Senior Credit
Facilities.
Section 2.07 Fees. The Borrower shall pay to the Agents in cash such fees as shall
have been separately agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as
expressly agreed between the Borrower and the applicable Agent).
Section 2.08 Computation of Interest and Fees. All computations of interest for Base
Rate Loans when the Base Rate is determined by Credit
Suisse’sWells Fargo’s “prime rate” shall be made on the basis
of a year of three hundred and sixty-five/three hundred and sixty-six (365/366) days and actual
days elapsed. All other computations of fees and interest shall be made on the basis of a three
hundred and sixty (360) day year and actual days elapsed. Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same
day on which it is made shall, subject to Section 2.07(a), bear interest for one (1) day. Each
determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.
Section 2.09 Evidence of Indebtedness.
(a) The Loans made by each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and evidenced by one or more
entries in the Register maintained by the Administrative Agent, acting solely for purposes of
Treasury Regulation Section 5f.103-1(c), as agent for the Borrower, in each case in the ordinary
course of
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business. The accounts or records maintained by the Administrative Agent and each Lender shall be
prima facie evidence absent manifest error of the amount of the Loans made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Loans and the related Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note payable to such Lender, which shall evidence such Lender’s Loans in
addition to such accounts or records. Each Lender may attach schedules to its Note and endorse
thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect
thereto.
(b) Entries made in good faith by the Administrative Agent in the Register pursuant to Section
2.09(a), and by each Lender in its account or accounts pursuant to Section 2.09(a), shall be prima
facie evidence of the amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error;
provided that the failure of the Administrative Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.
Section 2.10 Payments Generally.
(a) All payments to be made by the Borrower shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. The Administrative Agent will, subject to Section
8.10, promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.
All payments received by the Administrative Agent after 2:00 p.m. (New York, New York
time) may in each case, in the Administrative Agent’s sole discretion, be deemed
received on the next succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be; provided that, if such extension would
cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next
succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
Payments hereunder shall be made in Same Day Funds; provided that Escrowed Property delivered
to the Extended Tranche A Lenders in connection with the Escrow Exchange shall be deemed to
constitute a payment in Same Day Funds for purposes of the Loan Documents.
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or a portion, as the case may be, of the assigning Lender’s outstanding Loans, (B) all obligations
of the Borrower owing to the assigning Lender relating to the Loans so assigned shall be paid in
full by the assignee Lender to such assigning Lender concurrently with such assignment and
assumption and (C) upon such payment and, if so requested by the assignee Lender, delivery to the
assignee Lender of the appropriate Note or Notes executed by the Borrower, the assignee Lender
shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender
hereunder with respect to such assigned Loans, except with respect to indemnification provisions
under this Agreement, which shall survive as to such assigning Lender.
(c) In the event that (i) the Borrower or the Administrative Agent has requested that the
Lenders consent to a departure or waiver of any provisions of the Loan Documents or agree to any
amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all
affected Lenders in accordance with the terms of Section 10.01 or all the Lenders with respect to a
certain Class of the Loans and (iii) the Required Lenders have agreed to such consent, waiver or
amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed
a “Non-Consenting Lender.”
Section 3.08 Survival. All of the Borrower’s obligations under this Article 3 shall survive
repayment of all other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO EFFECTIVENESS
Section 4.01 Restatement Effective Date. The effectiveness of this Agreement pursuant
to the First Amendment and Restatement Agreement is subject to the satisfaction of the conditions
set forth in the First Amendment and Restatement Agreement, and the occurrence of the Restatement
Effective Date.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agents and the Lenders on the Restatement
Effective Date that:
Section 5.01 Existence, Qualification and Power; Compliance with Laws. The Borrower
and each of its Subsidiaries (a) is a Person duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority to (i) own or lease its assets and carry on its business and (ii)
execute, deliver and perform its obligations under the Loan Documents and the executed
and delivered Travelport Guarantor Loan Documents to which it is a party, (c) is duly
qualified and in good standing under the Laws of each jurisdiction where its ownership, lease or
operation of
properties or the conduct of its business requires such qualification, (d) is in compliance
with all
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Laws, orders, writs, injunctions and orders and (e) has all requisite governmental licenses,
authorizations, consents and approvals to operate its business as currently conducted; except in
each case referred to in clause (c), (d) or (e), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.
Section 5.02 Authorization; No Contravention. The execution, delivery and performance
by the Borrower of this Agreement, and by the Borrower and Travelport Guarantor of each other Loan
Document and Travelport Guarantor Loan Document to which it is a party, and the consummation of the
Transaction, are within the Borrower’s and Travelport Guarantor’s corporate or other powers, have
been duly authorized by all necessary corporate or other organizational action, and at
the time of such execution, delivery and performance, do not and will not (a) contravene
the terms of the Borrower’s or Travelport Guarantor’s Organization Documents, (b) conflict with or
result in any breach or contravention of, or the creation of any Lien under (other than as
permitted by this Agreement), or require any payment to be made under (i) any Contractual
Obligation to which the Borrower or Travelport Guarantor is a party or affecting the Borrower or
Travelport Guarantor or the properties of the Borrower or any of its Subsidiaries or (ii) any
material order, injunction, writ or decree of any Governmental Authority or any arbitral award to
which the Borrower or Travelport Guarantor or their respective property is subject; or (c) violate
any material Law; except with respect to any conflict, breach or contravention or payment (but not
creation of Liens) referred to in clause (b)(i), to the extent that such conflict, breach,
contravention or payment could not reasonably be expected to have a Material Adverse Effect.
Section 5.03 Governmental Authorization; Other Consents. No material approval,
consent, exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in connection with (a) the
execution, delivery or performance by, or enforcement against, the Borrower of this Agreement or
at the time of such execution, delivery and performance by the Borrower and
Travelport Guarantor of any other Loan Document or Travelport Guarantor Loan Document, or for the
consummation of the Transaction on the terms and conditions set forth in the Loan
Documents and the Travelport Guarantor Loan Documents or (b) the exercise by the
Administrative Agent or any Lender of its rights under the Loan Documents or Travelport Guarantor
Loan Documents, except for (i) the approvals, consents, exemptions, authorizations, actions,
notices and filings which have been duly obtained, taken, given or made and are in full force and
effect and (ii) those approvals, consents, exemptions, authorizations or other actions, notices or
filings, the failure of which to obtain or make could not reasonably be expected to have a Material
Adverse Effect.
Section 5.04 Binding Effect. This Agreement and each other Loan Document and each
Travelport Guarantor Loan Document that has been executed and delivered as of the
Restatement Effective Date has been duly executed and delivered by the Borrower and
Travelport Guarantor. This Agreement and each other Loan Document and each executed and
delivered Travelport Guarantor Loan Document constitutes, a legal, valid and binding
obligation of the Borrower and
Travelport Guarantor, enforceable against the Borrower and Travelport Guarantor in accordance
with its terms, except as such enforceability may be limited by Debtor Relief Laws, fraudulent
transfer, preference or similar laws and by general principles of equity.
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future events. The period of time between the Suspension Date and the Reversion Date is referred to
in this Section 7.14 as the “Suspension Period”. Upon the occurrence of a Covenant Suspension
Event, the amount of Excess Proceeds from Net Proceeds shall be reset to zero.
(d) During any Suspension Period, the Borrower will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Lease-Back Transaction; provided, however, that the Borrower
or any Restricted Subsidiary may enter into a Sale and Lease-Back Transaction if (i) the Borrower
or such Restricted Subsidiary could have incurred a Lien to secure the Indebtedness attributable to
such Sale and Lease-Back Transaction pursuant to Section 7.10 without equally and ratably securing
the Loans pursuant to Section 7.10; and (ii) the consideration received by the Borrower or such
Restricted Subsidiary in that Sale and Lease-Back Transaction is at least equal to the fair market
value of the property sold and otherwise complies with Section 7.08; provided, further, that the
foregoing provisions shall cease to apply on and subsequent to the Reversion Date following such
Suspension Period.
(e) Notwithstanding the foregoing, in the event of any such reinstatement, no action taken or
omitted to be taken by the Borrower or any of its Restricted Subsidiaries with respect to the
Suspended Covenants during a Suspension Period will give rise to a Default or Event of Default
under this Agreement with respect to the Loans; provided that (i) with respect to Restricted
Payments made after such reinstatement, the amount of Restricted Payments made will be calculated
as though Section 7.05 had been in effect prior to, but not during, the Suspension Period; and (ii)
all Indebtedness incurred, or Disqualified Stock issued, during the Suspension Period will be
classified to have been incurred or issued pursuant to Section 7.07(b)(iii).
(f) The Borrower shall deliver promptly to the Administrative Agent an Officer’s Certificate
notifying it of any such occurrence under this Section 7.14.
Section 7.15 Modification of Related Documents. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to:
(a) consent or agree to any amendment, modification or change to any material term or
condition in any Related Document or, prior to the Travelport Guarantor Transfer, the
Second Lien Credit Agreement and the Subscription Agreement in any way related to the Second Lien
Tranche A Loans or give any other consent, waiver or approval thereunder, in each case
that is materially adverse to the interests of the Lenders or prior to the Travelport
Guarantor Transfer, that disproportionately affects the Second Lien Tranche A Loans or the holders
thereof; or
(b) consent to any waiver of any default under or any breach of any material term or condition
of any Related Document, or, prior to the Travelport
Guarantor Transfer, of the Second Lien Credit Agreement and the Subscription Agreement in any way
related to the Second Lien Tranche A Loans to the extent that such waiver would be
materially
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adverse to the interests of the Lenders or prior to the Travelport Guarantor
Transfer, disproportionately affects the Second Lien Tranche A Loans or the holders
thereof.
Section 7.16 Escrow Arrangements.
(a) On the Restatement EffectivePermitted Transfer
Date, the Borrower shall cause (i) Travelport to make an equity
contribution of Second Lien Tranche A Loans in an aggregate principal amount of $135,000,000 to
and Travelport Guarantor to execute and
deliver the Subscription Agreement and perform their obligations thereunder,
(ii) Travelport and Travelport Guarantor to consummate the Travelport
Guarantor Transfer and (iii) Travelport Guarantor to (x) execute and deliver the
Guaranty, whereby it shall unconditionally guarantee the Obligations under the Extended Tranche A
Loans and (y) execute and deliver the Escrow Agreement, whereby the Second Lien Tranche A Loans
shall be placed in escrow for the benefit of the Extended Tranche A Lenders pursuant to the terms
of the Escrow Agreement.
(b) Upon the occurrence of an Escrow Trigger Event, the Escrow Exchange shall be consummated
pursuant to the terms of the Escrow Agreement. Upon the Settlement Date, the guarantee and escrow
arrangements described in clause (a)(ii) above shall be automatically terminated in their entirety.
(c) Each of the forms of the Subscription Agreement, Guaranty or Escrow Agreement,
attached hereto as Exhibits, will not be amended or supplement in contarvention with the procedures
set forth in Article X of this Agreement.
Section 7.17 Travelport Guarantor Prior to the Settlement Date:
(a) Travelport Guarantor shall not (and the Borrower shall cause
Travelport Guarantor not to) conduct, transact or otherwise engage in any business or operations
other than those incidental to (i) its ownership of the Second Lien Tranche A Loans, (ii) the
maintenance of its legal existence and (iii) the execution, delivery and
performance of the Travelport Guarantor Loan Documents and the other agreements and
transactions contemplated thereby and hereby;
(b) Travelport Guarantor shall not (and the Borrower shall cause Travelport Guarantor not to)
(i) incur or permit to exist any liabilities other than pursuant to the Travelport Guarantor Loan
Documents, (ii) grant or permit to exist any Liens on its properties other than under the Guaranty,
(iii) transfer, sell, convey or otherwise dispose of any assets except pursuant to the Escrow
Exchange, or (iv) and issue any Equity Interests in Travelport Guarantor, or permit to exist any
Equity Interests in Travelport Guarantor that are not directly or indirectly owned by Travelport;
and
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(c) theThe Borrower shall take, and
shall cause Travelport and Travelport Guarantor to take, all reasonable steps, including without
limitation, all steps that the Required Extended Tranche A Lenders may from time to time reasonably
request, to maintain Travelport Guarantor’s identity as a separate (bankruptcy remote) legal entity
and to make it manifest to third parties that Travelport Guarantor is
a separate legal entity. ;
(d) Until the Travelport Guarantor Transfer, the Borrower shall take, and shall cause
Travelport to take, all reasonable steps to ensure that Travelport holds the Second Lien Tranche A
Loans (and any proceeds thereof) segregated from other assets and not to transfer, assign, pledge,
convey or dispose of any interest therein; and
(e) From the Restatement Effective Date, and until the Permitted Transfer Date, (i)
the Borrower shall take, and shall cause Travelport to take, all reasonable commercial efforts to
diligently pursue a Favorable Ruling (as such term is defined in the Subscription Agreement), and
(ii) the Borrower shall not take, and shall not permit Travelport to take, actions that would
impair Travelport’s ability to consummate the Travelport Guarantor Transfer, including making any
investments that would result in inadequate investment capacity under the Senior Notes Indentures
or Senior Subordinated Notes Indenture to consummate the Travelport Guarantor
Transfer.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01 Events of Default.
(a) An “Event of Default” wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) default for 5 days or more in payment (whether in cash or pursuant to the Escrow Exchange) when
due and payable, upon acceleration or otherwise, of principal of the Extended Tranche A Loans;
(ii) default in payment when due and payable, upon acceleration or otherwise, of principal of the
Extended Tranche B Loans;
(iii) default for 30 days or more in the payment when due of interest or fees on or with respect to
the Loans;
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Loans or (ii) the consummation of the Escrow Exchange prior to the repayment of Extended Tranche B
Loans.
ARTICLE IX
ADMINISTRATIVE AGENT AND OTHER AGENTS
Section 9.01 Appointment and Authorization of Agents.
(a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative Agent to
take such action on its behalf under the provisions of this Agreement and each other Loan Document
and to exercise such powers and perform such duties as are expressly delegated to it by the terms
of this Agreement or any other Loan Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall have no duties or responsibilities, except
those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Administrative Agent. Without limiting the generality
of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with
reference to any Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely
as a matter of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) Each Extended Tranche A Lender irrevocably appoints the Administrative Agent and each other
Extended Tranche A Lender as its agent and bailee for the purpose of perfecting Liens (whether
pursuant to Section 8-301(a)(2) of the UCC or otherwise), for the benefit of the Administrative
Agent and the Extended Tranche A Lenders, in assets in which, in accordance with the UCC or any
other applicable Law a security interest can be perfected by possession or control. Should any
Extended Tranche A Lender obtain possession or control of any Escrowed Property or other
Collateralcollateral, such Extended
Tranche A Lender shall notify the Administrative Agent thereof, and, promptly following the
Administrative Agent’s request therefore, shall deliver such Escrowed Property or other Collateral
to the Administrative Agent or otherwise deal with such Escrowed Property or other Collateral in
accordance with the Administrative Agent’s instructions.
(c) Each Extended Tranche A Lender hereby also irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of Travelport Guarantor
Loan Documents and to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement or any Travelport Guarantor Loan Document,
together with such powers as are reasonably incidental thereto.
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(whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Borrower, provided that such reimbursement by
the Lenders shall not affect the Borrower’s continuing reimbursement obligations with respect
thereto. The undertaking in this Section 9.07 shall survive the payment of all other Obligations in
respect of the Loans and the resignation of the Administrative Agent.
Section 9.08 Agents in their Individual Capacities. Credit
SuisseWells Fargo and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in
and generally engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Borrower and its Affiliates as though Credit
SuisseWells Fargo were not the Administrative Agent
hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant
to such activities, Credit SuisseWells Fargo
or its Affiliates may receive information regarding the Borrower or its Affiliates
(including information that may be subject to confidentiality obligations in favor of the Borrower
or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Credit
SuisseWells Fargo shall have the same rights and
powers under this Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent, and the terms “Lender” and “Lenders” include
Credit SuisseWells Fargo in its
individual capacity.
Section 9.09 Successor Agents. The Administrative Agent may resign as the Administrative
Agent upon thirty (30) days’ notice to the Lenders and the Borrower. If the Administrative Agent
resigns under this Agreement, the Required Lenders shall appoint from among the Lenders a successor
agent for the Lenders, which successor agent shall be consented to by the Borrower at all times
other than during the existence of an Event of Default under Section 8.01(a)(vii) or (viii) (which
consent of the Borrower shall not be unreasonably withheld or delayed). If no successor agent is
appointed prior to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the Borrower, a successor
agent from among the Lenders. Upon the acceptance of its appointment as successor agent hereunder,
the Person acting as such successor agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term “Administrative Agent,” shall mean such successor
administrative agent and/or supplemental administrative agent, as the case may be, and the retiring
Administrative Agent’s appointment, powers and duties as the Administrative Agent shall be
terminated. After the retiring Administrative Agent’s resignation hereunder as the Administrative
Agent, the provisions of this Article 9 and Sections 10.04 and 10.05 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was the Administrative Agent under this
Agreement. If no successor agent has accepted appointment as the Administrative Agent by the date
which is thirty (30) days following the retiring Administrative Agent’s notice of resignation, the
retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder until such time, if
any, as the Required Lenders appoint a successor agent as provided for above. Upon the acceptance
of any appointment as the Administrative Agent hereunder by a successor and upon the execution and
filing or recording of such financing statements, or amendments thereto, and such other instruments
or notices, as may be necessary or desirable, or as the Required Extended Tranche A
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(c) Should any instrument in writing from the Borrower be required by any Supplemental
Administrative Agent so appointed by the Administrative Agent for more fully and certainly vesting
in and confirming to him or it such rights, powers, privileges and duties, the Borrower shall
execute, acknowledge and deliver any and all such instruments promptly upon request by the
Administrative Agent. In case any Supplemental Administrative Agent, or a successor thereto, shall
die, become incapable of acting, resign or be removed, all the rights, powers, privileges and
duties of such Supplemental Administrative Agent, to the extent permitted by Law, shall vest in and
be exercised by the Administrative Agent until the appointment of a new Supplemental Administrative
Agent.
Section 9.13 Escrowed Property Matters. The Extended Tranche A Lenders irrevocably agree
that any Lien on any property granted to or held by the Administrative Agent under any Loan
Document or Travelport Guarantor Loan Document shall be automatically released (i) upon the
Settlement Date, (ii) at the time the property subject to such Lien is transferred or to be
transferred as part of or in connection with any transfer permitted hereunder or under any other
Loan Document or Travelport Guarantor Loan Document to any Person other than the Borrower or
Travelport Guarantor, or (iii) subject to Section 10.01, if the release of such Lien is approved,
authorized or ratified in writing by the Required Extended Tranche A Lenders.
Upon request by the Administrative Agent at any time, the Required Extended Tranche A Lenders will
confirm in writing the Administrative Agent’s authority to release or subordinate its interest in
particular types or items of property. In each case as specified in this Section 9.13, the
Administrative Agent will (and each Extended Tranche A Lender irrevocably authorizes the
Administrative Agent to), at the Borrower’s expense, execute and deliver to the Borrower such
documents as the Borrower may reasonably request to evidence the release or subordination of such
item of Escrowed Property or other Collateral from the assignment and security interest granted
under the Escrow Agreement, in accordance with the terms of the Loan Documents, the Travelport
Guarantor Loan Documents and this Section 9.13.
Section 9.14 Voting. In the course of conducting any proceeding for any remedy available
to the Administrative Agent or of exercising any power conferred on the Administrative Agent in
connection with the Second Lien Tranche A Loan held as Escrowed Property, in the event that the
Administrative Agent is required or authorized to exercise voting or consent rights of “Lenders”
under the Second Lien Credit Agreement or any agreements executed in connection therewith,
a vote of the Extended Tranche A Lenders shall be held, and the Administrative Agent shall exercise
such voting or consent rights in the same proportion as the vote of the Extended Tranche A Lenders
(other than Affiliated Lenders).
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendments, Etc.
119
(ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone
number
previously specified in
itsto the Administrative
QuestionnaireAgent or to
such other address, facsimile number, electronic mail address or telephone number
as shall be designated by such party in a notice to the Borrower or the Administrative Agent.
All such notices and other communications shall be deemed to be given or made upon the earlier to
occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail,
four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail
(which form of delivery is subject to the provisions of Section 10.02(c)), when delivered; provided
that notices and other communications to the Administrative Agent pursuant to Article 2 shall not
be effective until actually received by such Person. In no event shall a voice mail message be
effective as a notice, communication or confirmation hereunder. Notices and other communications to
the Lenders hereunder may be delivered or furnished by electronic communication (including
electronic mail and Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant
to Article II if such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The Administrative Agent or the
Borrower may, in their discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by them, provided that approval of
such procedures may be limited to particular notices or communications.
The Borrower hereby agrees, unless directed otherwise by the Administrative Agent or unless the
electronic mail address referred to below has not been provided by the Administrative Agent to the
Borrower, that it will, or will cause its Subsidiaries to, provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to the Administrative
Agent pursuant to the Loan Documents or to the Lenders under Article VI, including all notices,
requests, financial statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (a) is or relates to a notice pursuant to
Section 2.02, (b) relates to the payment of any principal or other amount due under this Agreement
prior to the scheduled date therefor, (c) provides notice of any Default or Event of Default under
this Agreement or any other Loan Document or (d) is required to be delivered to satisfy any
condition precedent to the effectiveness of this Agreement and/or any Loans or other extension of
credit hereunder (all such non-excluded communications being referred to herein collectively as
“Communications”), by transmitting the Communications in an electronic/soft medium that is properly
identified in a format acceptable to the Administrative Agent to an electronic mail address as
directed by the Administrative Agent. In addition, the Borrower agrees, and agrees to cause its
Subsidiaries, to continue to provide the Communications to the Administrative Agent or the Lenders,
as the case may be, in the manner specified in the Loan Documents but only to the extent requested
by the Administrative Agent.
123
STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE
ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT
THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO
HAVE RESULTED PRIMARILY FROM SUCH PERSON’S GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT.
The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent
at its
provided e-mail address set forth above
shall constitute effective delivery of the Communications to the Administrative
Agent for purposes of the Loan Documents. Each Lender agrees that receipt of notice to it (as
provided in the next sentence) specifying that the Communications have been posted to the Platform
shall constitute effective delivery of the Communications to such Lender for purposes of the Loan
Documents. Each Lender agrees to notify the Administrative Agent in writing (including by
electronic communication) from time to time of such Lender’s e-mail address to which the foregoing
notice may be sent by electronic transmission and that the foregoing notice may be sent to such
e-mail address.
Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any
notice or other communication pursuant to any Loan Document in any other manner specified in such
Loan Document.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or
signed by facsimile. The effectiveness of any such documents and signatures shall, subject to
applicable Law, have the same force and effect as manually signed originals and shall be binding on
the Borrower, the Agents and the Lenders.
(c) Reliance by Agents and Lenders. The Administrative Agent and the Lenders shall be entitled to
rely and act upon any notices (including telephonic Committed Loan Notices) purportedly given by or
on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice purportedly given by or
on behalf of the Borrower in the absence of gross negligence or willful misconduct. All telephonic
notices to the Administrative Agent may be recorded by the Administrative Agent, and each of the
parties hereto hereby consents to such recording.
Section 10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or under any other Loan Document shall operate as a
125
waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and
provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by Law.
Section 10.04 Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent, the Co-Syndication Agents, and the Arrangers for all reasonable
out-of-pocket costs and expenses incurred in connection with the preparation, negotiation,
syndication and execution of this Agreement and the other Loan Documents, and any amendment,
waiver, consent or other modification of the provisions hereof and thereof (whether or not the
transactions contemplated thereby are consummated), and the consummation and administration of the
transactions contemplated hereby and thereby, including all Attorney Costs of
Cravath, Swaine & MooreRopes & Gray LLP,
and (b) to pay or reimburse the Administrative Agent, the Co-Syndication Agents, the Arrangers and
each Lender for all out-of-pocket costs and expenses incurred in connection with the enforcement of
any rights or remedies under this Agreement or the other Loan Documents (including all such costs
and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief
Law, and including all Attorney Costs of counsel to the Administrative Agent). The agreements in
this Section 10.04 shall survive the repayment of all other Obligations in respect of the Loans.
All amounts due under this Section 10.04 shall be paid within ten (10) Business Days of receipt by
the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail. If
the Borrower fails to pay when due any costs, expenses or other amounts payable by it hereunder or
under any Loan Document, such amount
may, but is not
required to be,
paid on behalf of the Borrower by the Administrative Agent in its sole discretion.
Section 10.05 Indemnification by the Borrower. Whether or not the transactions contemplated
hereby are consummated, the Borrower shall indemnify and hold harmless each Agent-Related Person,
each Lender and their respective Affiliates, directors, officers, employees, counsel, agents,
trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and
against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a) the execution,
delivery, enforcement, performance or administration of any Loan Document or any other agreement,
letter or instrument delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (b) any Loan or the use or proposed use of
the proceeds therefrom, or (c) any actual or alleged presence or release of Hazardous Materials on
or from any property currently or formerly owned or operated by the Borrower or any Subsidiary, or
any Environmental Liability related in any way to the Borrower or any Subsidiary, or (d) any actual
or prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and
regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the
“Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part,
out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any
Indemnitee, be available to the
126
extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements resulted from the gross negligence or willful
misconduct of such Indemnitee or of any affiliate, director, officer, employee, counsel, agent or
attorney-in-fact of such Indemnitee. No Indemnitee shall be liable for any damages arising from the
use by others of any information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall any Indemnitee or the
Borrower have any liability for any special, punitive, indirect or consequential damages relating
to this Agreement or any other Loan Document or arising out of its activities in connection
herewith or therewith (whether before or after the Original Closing Date). In the case of an
investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies,
such indemnity shall be effective whether or not such investigation, litigation or proceeding is
brought by the Borrower, its directors, stockholders or creditors or an Indemnitee or any other
Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the
transactions contemplated hereunder or under any of the other Loan Documents is consummated. All
amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand
therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent
that there is a final judicial or arbitral determination that such Indemnitee was not entitled to
indemnification or contribution rights with respect to such payment pursuant to the express terms
of this Section 10.05; provided, further, that the Administrative Agent is authorized
to deduct and retain sufficient amounts from any payment received from the Borrower to reimburse
the Administrative Agent for any such costs and expenses and any amounts owing to the
Administrative Agent in accordance with Section 2.07 prior to the distribution of any amounts to
Lenders. The agreements in this Section 10.05 shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the repayment, satisfaction or discharge of
all the other Obligations in respect of the Loans.
Section 10.06 Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law
or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect as if such payment
had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to
the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid
by any Agent, plus interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in effect.
Section 10.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations
127
Borrower by the Administrative Agent prior to the Restatement Effective Date or (y) if an Event of
Default under Section 8.01(a)(i), (ii) (vii) or (viii) has occurred and is continuing and (2) such
amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;
provided, further, that the Borrower shall be deemed to have consented to any such assignment
unless it shall object thereto by written notice to the Administrative Agent within seven (7)
Business Days after having received notice thereof;
(B) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption via an electronic settlement system acceptable to the Administrative
Agent (or, if previously agreed with the Administrative Agent, manually), and shall pay to the
Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced
in the sole discretion of the Administrative Agent); and
(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire and any applicable tax form and any other information reasonably requested by the Administrative
Agent.
This paragraph (b) shall not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Classes of Loans on a non-pro rata basis.
(c) Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section
10.07(d), from and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment). Upon request, and the
surrender by the assigning Lender of its Note, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this clause (c) shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 10.07(e).
129
be reasonably acceptable to the Borrower), to any pledgee referred to in Section 10.07(g),
counterparty to a Swap Contract, Eligible Assignee of or Participant in, or any prospective
Eligible Assignee of or Participant in, any rights or obligations under this Agreement; (f) with
the written consent of the Borrower; (g) to the extent such Information becomes publicly available
other than as a result of a breach of this Section 10.08; (h) to any Governmental Authority or
examiner (including the National Association of Insurance Commissioners or any other similar
organization) regulating any Lender; (i) to any rating agency when required by it (it being
understood that, prior to any such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Information relating to the Borrower received by it from such Lender); or
(j) in connection with the exercise of any remedies hereunder or under any other Loan Document or
any action or proceeding relating to this Agreement or any other Loan Document or the enforcement
of rights hereunder or thereunder. In addition, the Agents and the Lenders may disclose the
existence of this Agreement and information about this Agreement to market data collectors, similar
service providers to the lending industry, and service providers to the Agents and the Lenders in
connection with the administration and management of this Agreement, the other Loan Documents and
the Loans. For the purposes of this Section 10.08, “Information” means all information received
from the Borrower relating to the Borrower or its business, other than any such information that is
publicly available to any Agent or any Lender prior to disclosure by the Borrower other than as a
result of a breach of this Section 10.08; provided that, in the case of information received from
the Borrower after the Original Closing Date, such information is clearly identified at the time of
delivery as confidential.
Section 10.09 Setoff. Subject to Section 8.10, in addition to any rights and remedies of
the Lenders provided by Law, upon the occurrence and during the continuance of any Event of
Default, each Lender and its Affiliates is authorized at any time and from time to time, without
prior notice to the Borrower, any such notice being waived by the Borrower to the fullest extent
permitted by applicable Law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other Indebtedness at any time owing by,
such Lender and its Affiliates, as the case may be, to or for the credit or the account of the
Borrower and its Subsidiaries against any and all Obligations in respect of the Loans owing to such
Lender and its Affiliates hereunder or under any other Loan Document, now or hereafter existing,
irrespective of whether or not such Agent or such Lender or Affiliate
shall have made demand under this Agreement or any other Loan Document and although such
Obligations in respect of the Loans may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set off and application made by
such Lender; provided, that the failure to give such notice shall not affect the validity of such
setoff and application. The rights of the Administrative Agent and
each Lender under this Section 10.09 are in addition to other rights and remedies
(including other rights of setoff) that the Administrative Agent and
such Lender may have.
Section 10.10 Interest Rate Limitation. Notwithstanding anything to the contrary contained
in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not
exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”).
If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the
132
EXHIBIT D
TO
AMENDMENT NO. 2 TO
DISCLOSURE STATEMENT OF
TRAVELPORT HOLDINGS LIMITED
DISCLOSURE STATEMENT OF
TRAVELPORT HOLDINGS LIMITED
SECOND LIEN OPCO TERM LOAN CREDIT AGREEMENT
(Marked pages only)
(Marked pages only)
SECOND LIEN CREDIT AGREEMENT
Dated as of [•], 2011
among
TRAVELPORT LLC,
as Borrower,
as Borrower,
TRAVELPORT LIMITED,
as Holdings,
as Holdings,
WALTONVILLE LIMITED,
as Intermediate Parent,
as Intermediate Parent,
TDS INVESTOR (LUXEMBOURG) S.A.R.L.,
as TDS Intermediate Parent,
as TDS Intermediate Parent,
ASSOCIATION,
as Administrative Agent,
as Collateral Agent,
and
THE LENDERS PARTY HERETO
EXHIBITS
Form of
A
|
Committed Loan Notice | |
B
|
Note | |
C
|
Compliance Certificate | |
D
|
Assignment and Assumption | |
E
|
Guaranty | |
F
|
Security Agreement | |
G
|
Intellectual Property Security Agreement | |
H
|
Intercreditor Agreement | |
I
|
Tranche A Intercompany Note | |
J
|
Tranche B Intercompany Note |
v
SECOND LIEN CREDIT AGREEMENT, dated as of [•], 2011, among TRAVELPORT LLC, a
Delaware limited liability company (the “Borrower”), TRAVELPORT LIMITED, a company
incorporated under the laws of Bermuda (“Holdings”), WALTONVILLE LIMITED, a company
incorporated under the laws of Gibraltar (“Intermediate Parent”), TDS INVESTOR
(LUXEMBOURG) S.A.R.L., a société à responsabilité limitée incorporated under the
laws of Luxembourg (“TDS Intermediate Parent”), CREDIT SUISSE AG, CAYMAN ISLANDS
BRANCHWELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent,
[ ]WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent, and each
Lender from time to time party hereto.
PRELIMINARY STATEMENTS
WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.01 hereof;
WHEREAS, the direct parent of Holdings, Travelport Holdings Limited (“THL”), has issued
indebtedness under Credit Agreement dated as of March 27, 2007 (the “Original Holdco Credit
Agreement”) among THL, Credit Suisse, Cayman Islands Branch, the Administrative Agent, the lenders
and other financial institutions party thereto (“THL Lenders”);
WHEREAS, the maturity of the indebtedness outstanding under the Original Holdco Credit
Agreement requires the restructuring of the indebtedness of THL, Holdings and the Borrower;
WHEREAS, the extension of the Tranche A Term Loans and the Tranche B Term loans to the
Borrower is necessary to induce the THL Lenders to agree to reduce the principal amount of and to
extend the maturity of the indebtedness outstanding under the
Original Holdco Credit Agreement;
WHEREAS, the Borrower acknowledges that the reduction of the principal amount and the
extension of the maturity of the indebtedness outstanding under the Original Holdco Credit
Agreement represent substantial value to the Borrower and such reduction and extension of maturity
of the indebtedness outstanding under the Original Holdco Credit Agreement, as well as the
extension of the Tranche A Term Loans and the Tranche B Term Loans, are in the best interests of
the Borrower;
WHEREAS, the Lenders have agreed to extend certain loans to the Borrower, on the terms and
subject to the conditions set forth herein, consisting of (a) $135,000,000 aggregate principal
amount of Tranche A Term Loans and (b) $207,500,000 aggregate principal amount of Tranche B Term
Loans;
WHEREAS, the Borrower and the Guarantors have agreed to satisfy, and to cause their respective
Subsidiaries to satisfy, the Collateral and Guarantee Requirement, as applicable.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have
the meanings set forth below:
“2016 Senior Notes” means $250,000,000 in aggregate principal amount of the Borrower’s 9%
senior dollar fixed rate notes due 2016.
“2016 Senior Notes Indenture” means the Indenture for the 2016 Senior Notes, dated as of
August 18, 2010.
“5%
Shareholder” means any Person
whothat, to the knowledge of the Borrower (after due
inquiry), together with its Affiliates, directly or indirectly holds 5% or more of the outstanding
Equity Interests of Holdings and shall include the Affiliates of any such Person.
“Acquired EBITDA” means, with respect to any Acquired Entity or Business for any period, the
amount for such period of Consolidated EBITDA of such Acquired Entity or Business (determined as if
references to Holdings, Borrower and the Restricted Subsidiaries in the definition of Consolidated
EBITDA were references to such Acquired Entity or Business and its Subsidiaries), all as determined
on a consolidated basis for such Acquired Entity or Business.
“Acquired Entity or Business” has the meaning specified in the definition of the term
“Consolidated EBITDA”.
“Act” has the meaning specified in Section 10.21.
2
“Adjusted LIBO Rate” shall mean, with respect to any Eurocurrency Rate Borrowing for any
Interest Period, an interest rate per annum equal to the LIBO Rate in effect for such Interest
Period multiplied by a fraction (expressed as a decimal), the numerator of which is one (1.00) and
the denominator of which is one (1.00) minus the applicable Statutory Reserves for such Interest
Period.
“Administrative Agent” means Credit SuisseWells Fargo Bank, National Association, in its
capacity as administrative agent under the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means, with respect to any currency, the Administrative
Agent’s address and, as appropriate, account as set forth on
Schedule 10.02 with respect to such
currency, or such other address or account with respect to such currency as the Administrative
Agent may from time to time notify the Borrower and the Lenders.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under common Control with
the Person specified. “Control” means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto.
“Agent-Related Persons” means the Agents, together with their respective Affiliates, and the
officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
“Agents” means, collectively, the Administrative Agent, the Collateral Agent and the
Supplemental Agents (if any).
“Agreement” means this Second Lien Credit Agreement.
“Agreement Currency” has the meaning specified in Section 10.19.
“Applicable Rate” means a percentage per annum equal to the following percentages per annum:
3
| Eurocurrency Rate for | Base Rate for | |
| Loans | Loans | |
| 6.00% | 5.00% |
“Appropriate Lender” means, at any time, with respect to Loans of any Class, the Lenders
of such Class.
“Approved Bank” has the meaning specified in clause (c) of the definition of “Cash
Equivalents”.
“Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or
managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an
entity that administers, advises or manages such Lender.
“Assignees” has the meaning specified in Section 10.07(b).
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of
Exhibit D.
“Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law
firm or other external legal counsel.
“Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP.
“Audited Financial Statements” means the audited combined balance sheets of Holdings and its
Subsidiaries as of each of December 31, 2010, 2009 and 2008, and the related audited consolidated
statements of income, stockholders’ equity and cash flows for Holdings and its Subsidiaries for the
fiscal years ended December 31, 2010, 2009 and 2008, respectively.
“Base Rate” means, for any day, a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as
announced to the Borrower from time to time by Credit SuisseWells Fargo as its “prime rate.” The
“prime rate” is a rate set by
Credit SuisseWells Fargo based upon various factors, including Credit Suisse’sWells Fargo’s
costs and desired return, general economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or below such announced rate. Any
change in such rate announced by Credit SuisseWells Fargo shall take effect at the opening of
business on the day specified in the announcement of such change.
4
Holdings and (y) the percentage of the then outstanding voting stock of Holdings
owned, directly or indirectly, beneficially by the Permitted Holders, and (B)
during each period of twelve (12) consecutive months, the board of directors of
Holdings shall consist of a majority of the Continuing Directors; or
(b) any “Change of Control” (or any comparable term) in any document pertaining to the
First Lien Credit Agreement, the 2016 Senior Notes, the High Yield Notes, any Junior
Financing or any Permitted Refinancing Indebtedness with an aggregate outstanding principal
amount in excess of the Threshold Amount; or
(c) at any time prior to a Qualifying IPO of the Borrower, the Borrower ceasing to be
a directly or indirectly wholly owned Subsidiary of Holdings.
“Class” (a) when used with respect to Lenders, refers to whether such Lenders are Tranche A
Term Lenders or Tranche B Term Lenders and (b) when used with respect to Loans or a Borrowing,
refers to whether such Loans, or the Loans comprising such Borrowing, are Tranche A Term Loans or
Tranche B Term Loans.
“Closing Date” means [•], 2011.
“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and rules
and regulations related thereto.
“Collateral” means all of the “Collateral”, or terms of similar import, as defined in any
Collateral Document, including the Mortgaged Properties.
“Collateral Agent” means [ ]Wells Fargo Bank, National Association, in its capacity as
collateral agent under any of the Loan Documents, or any successor collateral agent.
“Collateral and Guarantee Requirement” means, at any time, the requirement that:
(a) the Administrative Agent shall have received each Collateral Document required to
be delivered pursuant to Section 6.11 at such time, duly executed by each Loan Party
thereto;
9
(b) all Obligations shall have been unconditionally guaranteed on or prior to the Closing Date
by Holdings, TDS Intermediate Parent, any Intermediate Holding Company that is not an Excluded
Subsidiary and each Restricted Subsidiary of Holdings that is a Domestic Subsidiary and not an
Excluded Subsidiary;
(c) all guarantees issued or to be issued in respect of the Senior Subordinated Notes (i)
shall be subordinated to the Guaranties to the same extent that the Senior Subordinated Notes are
subordinated to the Obligations and (ii) shall provide for their automatic release upon a release
of the corresponding Guaranty;
(d) the Obligations and the Guaranties delivered on or prior to the Closing Date shall have
been secured by a second-priority security interest in: (i) all of the Equity Interests of the
Borrower, (ii) all Equity Interests (other than Equity Interests of Unrestricted Subsidiaries and
any Equity Interest of any Restricted Subsidiary pledged to secure Indebtedness permitted under
Section 7.03(g)) of each wholly owned direct Subsidiary of Holdings, TDS Intermediate Parent, an
Intermediate Holding Company, the Borrower or a Domestic Subsidiary of Holdings that is a Guarantor
on the Closing Date and (iii) 65% of the issued and outstanding Equity Interests of each wholly
owned Foreign Subsidiary that is directly owned by Holdings, an Intermediate Holding Company, the
Borrower or any Domestic Subsidiary of Holdings that is a Guarantor on the Closing Date;
(e) except to the extent otherwise permitted hereunder or under any Collateral Document, the
Obligations and the Guaranties shall have been secured by a perfected security interest in, and
mortgages on, substantially all tangible and intangible assets of Holdings, the Borrower and each
other Domestic Guarantor (including accounts (other than deposit accounts or other bank or
securities accounts, which are the subject of clause (f) below), inventory, equipment, investment
property, contract rights, intellectual property, other general intangibles, owned (but not leased)
real property and proceeds of the foregoing), in each case, with the priority required by the
Collateral Documents;
provided that security interests in real property shall be limited to the Mortgaged
Properties;
(f) subject to the Intercreditor Agreement and Section 6.11(c), with respect to each domestic
deposit account and other domestic bank and securities accounts (other than (i) the First Lien
Tranche S Collateral Account and (ii) such deposit accounts or other bank or securities
accounts,Excluded Accounts (as defined in the average daily balance of which has not, for any
period of twenty (20) consecutive Business Days after the Closing Date, exceeded $5,000,000 for any
such accountSecurity Agreement)), maintained by the Borrower or any Domestic Guarantor with any
depositary bank or securities intermediary, the Collateral Agent shall have, subject to Section
6.17, received a counterpart, duly executed and delivered by the Borrower or the applicable
Domestic Guarantor and such depositary bank or securities intermediary, as the case may be, of a
10
control agreement, as soon as practicable but in no event later than one hundred twenty (120) days
after the Discharge Date (or such longer period as the Administrative Agent may agree in writing in
its reasonable discretion);
(g) none of the Collateral shall be subject to any Liens other than Liens permitted by Section
7.01;
(h) subject to Section 6.17, the Collateral Agent shall have received (i) counterparts of a
second lien Mortgage with respect to (x) the owned real property of the Loan Parties located at
5350 South Valentia Way, Greenwood Village, Colorado delivered in accordance with Section 6.17 and
(y) each owned property required to be delivered pursuant to Section 6.11 (the “Mortgaged
Properties”) duly executed and delivered by the record owner of such property, (ii) a policy or
policies of title insurance issued by a nationally recognized title insurance company insuring the
Lien of each such Mortgage as a valid Lien on the property described therein, free of any other
Liens except as expressly permitted by Section 7.01, together with such endorsements, coinsurance
and reinsurance as the Administrative Agent may reasonably request, and (iii) such existing
surveys, existing abstracts, existing appraisals, legal opinions and other existing available
documents as the Administrative Agent may reasonably request with respect to any such Mortgaged
Property;
(i) subject to Section 6.17 and clause (k) below, Holdings and the Borrower shall use
commercially reasonable best efforts to ensure that, to the extent permitted by Law and subject to
no material adverse tax, regulatory or legal consequences (as determined by Holdings in good faith
after consultation with the Administrative Agent), the Obligations shall be unconditionally
guaranteed in full by each Restricted Subsidiary of Holdings (other than an Excluded Subsidiary)
that is not required to provide a guarantee pursuant to clause (b) above, and upon the actual
execution and delivery of each such guarantee pursuant to this Agreement, such guarantee will also
be considered a Guaranty and such guarantor will also be considered a Guarantor for all purposes of
this Agreement and the other Loan Documents;
(j) subject to Section
6.17 and clause (k) below, Holdings and the Borrower shall use commercially reasonable best
efforts to ensure that, to the extent permitted by Law and subject to no material adverse tax,
regulatory or legal consequences (as determined by Holdings in good faith after consultation with
the Administrative Agent), the Obligations and the Guaranties shall have been secured by a
second-priority security interest in: (i) 100% of the Equity Interests of each direct wholly owned
Foreign Subsidiary of Holdings (to the extent not already subject to a 100% pledge pursuant to
clause (d) above), (ii) 100% of the issued and outstanding non-voting Equity Interests of each
direct wholly owned Foreign Subsidiary of a Guarantor (other than Holdings) or of the Borrower (to
the extent not already subject to a 100% pledge pursuant to clause (d) above) and (iii) 65% of the
issued and outstanding voting Equity Interests of each direct wholly owned Foreign Subsidiary of a
Guarantor (other than Holdings) or of the
11
Borrower (to the extent not already subject to a 65% pledge pursuant to clause (d) above);
provided that with respect to each direct wholly owned Foreign Subsidiary of a Guarantor
(other than Holdings)
or of the Borrower the non-voting Equity Interests of such Foreign
Subsidiary pledged pursuant to the foregoing clause (ii) and voting Equity Interests of
such Foreign Subsidiary pledged pursuant to the foregoing clause (iii) shall collectively
not exclude more than an immaterial portion of the economic value of such Foreign
Subsidiary; and
(k) no Restricted Subsidiary shall be required to provide a guarantee pursuant to
clause (i) above (and any such Restricted Subsidiary shall be automatically released from
its obligations under a Guaranty) or have its Equity Interests pledged pursuant to clause
(j) above (and any such Equity Interest pledged shall be automatically released) if it is
determined by Holdings acting in good faith that (i) the total assets of such Restricted
Subsidiary on a consolidated basis have a value of less than $2,500,000 as of the date of
the most recent financial statements that haveinformation prepared for such Restricted
Subsidiary (or, if such financial information has not been delivered pursuant to Section
6.01(prepared within the prior 12 months, as of a) or (b reasonably recent date determined
by such Restricted Subsidiary) or (ii) there are holders of minority interests in such
Restricted Subsidiary or pledges or Liens on the assets of such Restricted Subsidiary or
any other arrangement that would prevent the economic value of such Restricted Subsidiary
from being available to the Secured Parties in an Insolvency Proceeding (as defined in the
Intercreditor Agreement) of Holdings.
For purposes of clauses (i) and (j) above, commercially reasonable best efforts shall include
appropriate amendments to charters and/or the interposition of intermediate holding companies in
furtherance of the requirements of this definition.
The foregoing definition shall not require the creation or perfection of pledges of or
security interests in, or the obtaining of title insurance or surveys with respect to, particular
assets if and for so long as, in the reasonable judgment of the Administrative Agent (confirmed in
writing by notice to the Borrower), the cost of creating or perfecting such pledges or security
interests in such assets or obtaining title insurance or surveys in respect of such assets shall be
excessive in view of the benefits to be obtained by the Lenders therefrom. The Administrative Agent
may grant extensions of time for the perfection of security interests in or the obtaining of title
insurance with respect to particular assets (including extensions beyond the Closing Date for the
perfection of security interests in the assets of the Loan Parties on such date) where it
reasonably determines, in consultation with the Borrower, that perfection cannot be accomplished
without undue effort or expense by the time or times at which it would otherwise be required by
this Agreement or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or
any other Loan Document to the contrary, (a) with respect to leases of real property entered into
by the Borrower or any other Domestic Guarantor, the Borrower shall not
12
be required to take any action with respect to creation or perfection of security interests with
respect to such leases, (b) Liens required to be granted from time to time pursuant to the
Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in
the Collateral Documents as in effect on the Closing Date and, to the extent appropriate in the
applicable jurisdiction, as agreed between the Administrative Agent and the Borrower and (c) Orbitz
TopCo and its Subsidiaries shall not be subject to the Collateral and Guarantee Requirements other
than pursuant to Section 6.16.
Notwithstanding anything to the contrary herein or in any other Loan Document, the Obligations
and Guaranties shall not be secured by any Person’s rights, title or interest in or to the Loans
held by such Person.
Notwithstanding the foregoing, no Liens shall be permitted to exist directly or indirectly on
the Tranche A Intercompany Note or the Tranche A Term Loans until the Permitted Transfer Date.
“Collateral Documents” means, collectively, the Intercreditor Agreement, the Security
Agreement, the Intellectual Property Security Agreement, the Mortgages, each of the mortgages,
collateral assignments, Security Agreement Supplements, security agreements, pledge agreements,
control agreements or other similar agreements delivered to the Collateral Agent for the benefit of
the Lenders pursuant to Section 6.11, Section 6.13 or Section 6.17, the Guaranty and each of the
other agreements, instruments or documents that creates or purports to create a Lien or Guarantee
in favor of the Administrative Agent or the Collateral Agent, as the case may be, for the benefit
of the Secured Parties.
“Committed Loan Notice” means a notice of (a) a conversion of Loans from one Type to the
other, or (b) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
“Communications” has the meaning specified in Section 10.02(a).
“Compensation Period” has the meaning specified in Section 2.12(c)(ii).
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“Consolidated EBITDA” means, for any period, the Consolidated Net Income for such period,
plus:
13
period in computing Consolidated Net Income, including any one-time costs incurred in
connection with acquisitions after the Closing Date and costs related to the closure and/or
consolidation of facilities, the separation from Cendant Corporation and the
business-to-consumer platform, which amount, when combined with the amounts added pursuant
to clause (vi) above, shall not exceed $35,000,000 for any period consisting of four
consecutive fiscal quarters;
(x) any costs or expenses incurred by Holdings, the Borrower or a Restricted
Subsidiary pursuant to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement or any stock subscription or shareholder
agreement, to the extent that such costs or expenses are funded with cash proceeds
contributed to the capital of Holdings, the Borrower or net cash proceeds of an issuance of
Equity Interests of Holdings (other than Disqualified Equity Interests); and
(xi) on and after the Worldspan Closing Date, any payments with respect to the FASA
Credits; less
(b) without duplication and to the extent included in arriving at such Consolidated Net
Income, the sum of the following amounts for such period:
(i) extraordinary gains and unusual or non-recurring gains;
(ii) non-cash gains (excluding any non-cash gain to the extent it represents the
reversal of an accrual or reserve for a potential cash item that reduced Consolidated
EBITDA in any prior period);
(iii) gains on asset sales (other than asset sales in the ordinary course of
business);
(iv) any net after-tax income from the early extinguishment of Indebtedness or hedging
obligations or other derivative instruments;
(v) all gains from investments recorded using the equity method; provided that
Consolidated EBITDA shall be increased by the amount of dividends or distributions or other
payments from such investment to a Loan Party or the Restricted Subsidiary which made the
investment that are actually paid in cash during such period (or to the extent converted
into cash during such period); and
15
(vi) United EBITDA,;
in each case, as determined on a consolidated basis for Holdings, the Borrower and the Restricted
Subsidiaries in accordance with GAAP; provided that, to the extent included in Consolidated Net
Income,
(i) there shall be excluded in determining Consolidated EBITDA currency
translation gains and losses (after any offset) related to currency remeasurements
of Indebtedness (including the net loss or gain resulting from Swap Contracts for
currency exchange risk);
(ii) there shall be excluded in determining Consolidated EBITDA for any period
any adjustments (after any offset) resulting from the application of Statement of
Financial Accounting Standards No. 133; and
(iii) there shall be included in determining Consolidated EBITDA for any
period, without duplication, (A) the Acquired EBITDA of any Person, property,
business or asset acquired by Holdings, Intermediate Parent, TDS Intermediate
Parent, the Borrower or any Restricted Subsidiary during such period (but not the
Acquired EBITDA of any related Person, property, business or assets to the extent
not so acquired), to the extent not subsequently sold, transferred or otherwise
disposed by the Borrower or such Restricted Subsidiary during such period (each
such Person, property, business or asset acquired and not subsequently so disposed
of, an “Acquired Entity or Business”), based on the actual Acquired EBITDA of such
Acquired Entity or Business for such period (including the portion thereof
occurring prior to such acquisition) and (B) for the purposes of the definition of
the term “Permitted Acquisition”, an adjustment in respect of each Acquired Entity
or Business equal to the amount of the Pro Forma Adjustment with respect to such
Acquired Entity or Business for such period (including the portion thereof
occurring prior to such acquisition) as specified in a certificate executed by a
Responsible Officer and delivered to the Lenders and the Administrative Agent and
(C) for purposes of determining the Total Leverage Ratio only, there shall be
excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of
any Person, property, business or asset sold, transferred or otherwise disposed of
by Holdings, the Borrower or any Restricted Subsidiary during such period (each
such Person, property, business or asset so sold or disposed of, a “Sold Entity or
Business”), based on the actual Disposed EBITDA of such Sold Entity or Business for
such period (including the portion thereof occurring prior to such sale, transfer
or disposition).
For the purpose of the definition of Consolidated EBITDA, “Non-Cash Charges” means (a)
non-cash losses on discontinued operations and asset sales, disposals or abandonments
16
established within twelve months after the Worldspan Closing Date that are so required to be
established as a result of the Worldspan Transactions in accordance with GAAP; provided that, for
the avoidance of doubt, any net income attributable to a Restricted Subsidiary shall only
constitute Consolidated Net Income after deducting for any minority interests in such Restricted
Subsidiary. There shall be excluded from Consolidated Net Income for any period the purchase
accounting effects of adjustments to property and equipment, software and other intangible assets,
deferred revenue and debt line items in component amounts required or permitted by GAAP and related
authoritative pronouncements (including the effects of such adjustments pushed down to Holdings,
the Borrower and the Restricted Subsidiaries), as a result of the First Lien Original Closing Date
Transaction, any acquisition consummated prior to the Closing Date, any Permitted Acquisitions, or
the amortization or write-off of any amounts thereof, net of taxes (other than the impact of
unfavorable contract liabilities and commission agreements under purchase accounting). In addition,
FASA Credits provided by Worldspan, L.P. to Northwest or Delta shall reduce consolidated net income
in the period in which such credit was provided regardless of accounting treatment in accordance
with GAAP, except to the extent FASA Credits have been prepaid with the proceeds of debt issuances
by Worldspan Technologies Inc.
“Consolidated Total Debt” means, as of any date of determination, (a)(i) the aggregate
principal amount of Indebtedness of Holdings, the Borrower and the Restricted Subsidiaries
outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding
the effects of any discounting of Indebtedness resulting from the application of purchase
accounting in connection with the First Lien Original Closing Date Transaction) or any Permitted
Acquisition), consisting of Indebtedness for borrowed money, obligations in respect of Capitalized
Leases and debt obligations evidenced by promissory notes or similar instruments, plus (ii)
the present value of all remaining payments due under the FASA Credits at an assumed 11% discount
rate (unless remaining payments under the FASA Credits are classified as a liability on the
consolidated balance sheet of Holdings, the Borrower and the Restricted Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP, in which case, the amount under this
clause (ii) shall be the amount of such liability), minus (b) without duplication, the
aggregate amount of cash and Cash Equivalents credited to the First Lien Tranche S Collateral
Account as of such date and the aggregate amount of cash and Cash Equivalents (in each case, free
and clear of all Liens, other than nonconsensual Liens permitted by Section 7.01 and Liens
permitted by Section 7.01(a), Section 7.01(l), Section 7.01(r), Section 7.01(s) and clauses
(i) and (ii) of Section 7.01(u) and Section 7.01(aa)) included in the consolidated balance sheet of
Holdings, the Borrower and the Restricted Subsidiaries as of such date; provided that Consolidated
Total Debt shall not include the First Lien Synthetic L/C Facilities or the First Lien
Credit-Linked Deposits, except to the extent of First Lien Unreimbursed Amounts thereunder and
outstanding First Lien Tranche S Term Loans and First Lien Non-Extended Synthetic L/C Loans.
“Consolidated Working Capital” means, at any date, the excess of (a) the sum of all amounts
(other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite
the caption “total current assets” (or any like caption) on a consolidated balance sheet of
Holdings, the Borrower and the Restricted Subsidiaries at such date over (b) the
18
sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total
current liabilities” (or any like caption) on a consolidated balance sheet of Holdings, the
Borrower and the Restricted Subsidiaries on such date, including deferred revenue but excluding,
without duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness consisting
of Loans, First Lien Loans and L/C Obligations to the extent otherwise included therein, (iii) the
current portion of interest and (iv) the current portion of current and deferred income taxes.
“Consummation Date” has the meaning specified in Section 6.18.
“Continuing Directors” means the directors of Holdings on the First Lien Original Closing
Date, as elected or appointed after giving effect to the First Lien Original Closing Date
Transaction and the other transactions contemplated hereby, and each other director, if, in each
case, such other directors’ nomination for election to the board of directors of Holdings (or the
Borrower after a Qualifying IPO of the Borrower) is recommended by a majority of the then
Continuing Directors or such other director receives the vote of the Permitted Holders in his or
her election by the stockholders of Holdings (or the Borrower after a Qualifying IPO of the
Borrower).
“Contract Consideration” has the meaning specified in the definition of “Excess Cash Flow.”
“Contractual Obligation” means, as to any Person, any provision of any security issued by such
Person or of any agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
“Control” has the meaning specified in the definition of “Affiliate.”
“Conversion Bonds” has the meaning specified in the definition of “Bond Conversion Offer.”
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
19
“Default” means any event or condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate,
if any, applicable to Base Rate Loans plus (c) 2.0% per annum; provided that with respect to a
Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate) otherwise applicable to such Loan plus 2.0% per annum, in each
case, to the fullest extent permitted by applicable Laws.
“Delta” means Delta Air Lines, Inc., a Delaware corporation.
“Delta FASA” means the Delta Founder Airline Services Agreement, dated as June 30, 2003,
between Delta and the Borrower.
“Designated Non-Cash Consideration” means the fair market value of non-cash consideration
received by Holdings, the Borrower or a Restricted Subsidiary in connection with a Disposition
pursuant to Section 7.05(j) that is designated as Designated Non-Cash Consideration pursuant to a
certificate of a Responsible Officer, setting forth the basis of such valuation (which amount will
be reduced by the fair market value of the portion of the non-cash consideration converted to cash
within 180 days following the consummation of the applicable Disposition).
“Discharge Date” has the meaning specified in
Section 6.11(c).
“Disposed EBITDA” means, with respect to any Sold Entity or Business for any period, the
amount for such period of Consolidated EBITDA of such Sold Entity or Business (determined as if
references to Holdings, the Borrower and the Restricted Subsidiaries in the definition of
Consolidated EBITDA were references to such Sold Entity or Business and its Subsidiaries), all as
determined on a consolidated basis for such Sold Entity or Business.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition
(including any sale and leaseback transaction and any sale of Equity Interests) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or without recourse,
of any notes or accounts receivable or any rights and claims associated therewith; provided that
“Disposition” and “Dispose” shall not be deemed to include any issuance by Holdings of any of its
Equity Interests to another Person.
“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms
of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily
redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking
20
Holdings, (e) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition financed with
secured Indebtedness incurred pursuant to Section 7.03(g) and each Restricted Subsidiary thereof
that guarantees such Indebtedness, provided that each such Restricted Subsidiary shall cease to be
an Excluded Subsidiary under this clause (e) if such secured Indebtedness is repaid or becomes
unsecured or if such Restricted Subsidiary ceases to guarantee such secured Indebtedness, as
applicable, and (f) any other Subsidiary with respect to which, in the reasonable judgment of the
Administrative Agent (confirmed in writing by notice to the Borrower), the cost or other
consequences (including any adverse tax consequences) of providing a Guarantee shall be excessive
in view of the benefits to be obtained by the Lenders therefrom.
“FASA Credits” means the Delta FASA Credits and the Northwest FASA Credits, as defined in the
Delta FASA and the Northwest FASA, respectively.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank on the
Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Credit
SuisseWells Fargo on such day on such transactions as determined by the Administrative
Agent.
“First Lien Credit-Linked Deposit” means “Credit-Linked Deposit” as defined in the First Lien
Credit Agreement.
“First Lien Collateral Documents” has the meaning assigned to the term “Collateral Documents”
in the First Lien Credit Agreement.
“First Lien Credit Agreement” means the Fourth Amended and Restated Credit Agreement, dated as
of August 23, 2006, as amended and restated on [•], 2011, among the Borrower, Holdings, the First
LienPriority Administrative Agent, the First LienPriority Collateral Agent, UBS AG,
Stamford Branch, as L/C issuer and as swing line lender, each lender
26
from time to time party thereto and the other agents and arrangers named therein, and as further
amended, amended and restated, supplemented or otherwise modified from time to time; provided that
the term First Lien Credit Agreement shall also include any renewal, extension, refunding,
restructuring, replacement or refinancing thereof (whether with the original lenders or with an
administrative agent or agents or other lenders, whether provided under the original First Lien
Credit Agreement or any other credit or other agreement or indenture and whether entered into
concurrently with or subsequent to the termination of the prior First Lien Credit Agreement). Any
reference to the First Lien Credit Agreement herein shall be deemed a reference to any First Lien
Credit Agreement then in existence.
“First Lien Credit Agreement Permitted Refinancing Indebtedness” means “Permitted Refinancing
Indebtedness” as defined in the First Lien Credit Agreement as in effect on the date hereof.
“First Lien Credit Agreement Permitted Refinancing Indebtedness Documentation” means
“Permitted Refinancing Indebtedness Documentation” as defined in the First Lien Credit Agreement as
in effect on the date hereof.
“First Lien Debt Documents” means each First Lien Credit Agreement, the First Lien Collateral
Documents and the other “Loan Documents” as defined in any First Lien Credit Agreement, including
each mortgage and other security documents, guaranties and the notes, if any, issued thereunder.
“First Lien Loans” means the senior secured first lien loans under the First Lien Credit
Agreement (or any other Indebtedness under the First Lien Credit Agreement that refinances such
senior secured first lien term loans).
“First Lien Secured Parties” means the First
LienPriority Administrative Agent, the
First LienPriority Collateral Agent and each person that is a lender under the First Lien
Credit Agreement.
“First Lien Non-Extended Synthetic L/C Loans” means “Non-Extended Synthetic L/C Loans” as
defined in the First Lien Credit Agreement.
“First Lien Original Closing Date” means August 23, 2006.
“First Lien Original Closing Date Transactions” means “Transactions” as defined in the First
Lien Credit Agreement as in effect on the date hereof.
27
“First Lien Secured Hedge Agreements” means “Secured Hedge Agreements” as defined in the First
Lien Credit Agreement.
“First Lien Synthetic L/C Facilities” means “Synthetic L/C Facilities” as defined in the First
Lien Credit Agreement.
“First Lien Tranche S Collateral Account” means “Tranche S Collateral Account” as defined in
the First Lien Credit Agreement.
“First Lien Tranche S Term Loans” means “Tranche S Term Loans” as defined in the First Lien
Credit Agreement.
“First Lien Unreimbursed Amount” means “Unreimbursed Amount” as defined in the First Lien
Credit Agreement.
“First Priority Administrative Agent” has the meaning assigned to
such term in the
Intercreditor Agreement.
“First Priority Collateral Agent” has the meaning assigned to
such term in the
Intercreditor Agreement.
“Foreign Guarantor” means any Guarantor that is not a Domestic Guarantor.
“Foreign Holdco” means a direct wholly owned Subsidiary of Holdings which shall hold all of
Holdings’ interests in all of its other Foreign Subsidiaries.
“Foreign Lender” has the meaning specified in Section 10.15(a)(i).
“Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement
maintained or contributed to by, or entered into with, any Loan Party or any Subsidiary with
respect to employees employed outside the United States.
“Foreign Subsidiary” means any direct or indirect Restricted Subsidiary of Holdings which is
not a Domestic Subsidiary.
28
Indebtedness or other monetary obligation of the payment or performance thereof or to protect such
obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of
such Person securing any Indebtedness or other monetary obligation of any other Person, whether or
not such Indebtedness or monetary other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that
the term “Guarantee” shall not include endorsements for collection or deposit, in either case in
the ordinary course of business, or customary and reasonable indemnity obligations in effect on the
Closing Date or entered into in connection with any acquisition or disposition of assets permitted
under this Agreement (other than such obligations with respect to Indebtedness). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.
“Guarantors” means each Person that is required to and has
unconditionally
guaranteeguaranteed all Obligations to the extent set forth in the definition of
“Collateral and Guarantee Requirement”.
“Guaranty” means (a) the second lien guaranty made by Holdings and the Subsidiary Guarantors
in favor of the Administrative Agent on behalf of the Secured Parties, substantially in the form of
Exhibit E and (b) each other second lien guaranty and second lien guaranty supplement
delivered pursuant to Section 6.11.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or pollutants, including petroleum or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
“High Yield Notes” means the Senior Notes and Senior Subordinated Notes.
“High Yield Notes Documentation” means the High Yield Notes, and all documents executed and
delivered with respect to the High Yield Notes, including the Senior Notes Indentures and the
Senior Subordinated Notes Indenture.
“Holdings” has the meaning specified in the introductory paragraph to this Agreement.
30
terms) and made in the ordinary of business consistent with past practice. The amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) shall
be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and
(ii) the fair market value of the property encumbered thereby as determined by such Person in good
faith.
“Indemnified Liabilities” has the meaning specified in Section 10.05.
“Indemnitees” has the meaning specified in Section 10.05.
“Indenture” has the meaning specified in the definition of “Bond Conversion Offer.”
“Information” has the meaning specified in Section 10.08.
“Intellectual Property Security Agreement” means the Second Lien Intellectual Property
Security Agreement, substantially in the form attached as Exhibit G.
“Intercreditor Agreement” means (i) the Intercreditor Agreement, substantially in the form of
Exhibit H, among the Administrative Agent, the Collateral Agent, the First LienPriority
Administrative Agent, the First LienPriority Collateral Agent, the Borrower and the other
Loan Parties or (ii) any other intercreditor agreement among the Administrative Agent, the
Collateral Agent, the First LienPriority Administrative Agent (if then in effect), the
First LienPriority Collateral Agent (if then in effect), the Borrower and the other Loan
Parties and the other parties party thereto on terms that are no less favorable in any material
respect to the Secured Parties as those contained in the form attached as Exhibit H, in each case,
as amended, restated, supplemented or otherwise modified from time to time (or replaced in
connection with a Permitted Refinancing).
“Interest Payment Date” means (a) as to any Loan other than a Base Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; provided that if any Interest
Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every
three months after the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and
the Maturity Date.
32
“Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date
such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan
and ending on the date three months thereafter; provided that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
“Intermediate Holding Company” means any Subsidiary of Holdings that, directly or indirectly,
owns 100% of the issued and outstanding Equity Interests of the Borrower.
“Intermediate Parent” has the meaning specified in the introductory paragraph to this
Agreement.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or
other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity
participation or interest in, another Person, including any partnership or joint venture interest
in such other Person (excluding, in the case of Holdings and its Subsidiaries, intercompany loans,
advances, or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or
extensions of terms) and made in the ordinary course of business consistent with past practice) or
(c) the purchase or other acquisition (in one transaction or a series of transactions) of all or
substantially all of the property and assets or business of another Person or assets constituting a
business unit, line of business or division of such Person. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
“Investment Fund” means an Affiliate of Holdings that is
primarily engaged in, or advises
funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise
investing in commercial loans, bonds and similar extensions of credit in the ordinary course and
with respect to which Holdings does not, directly or indirectly, actually direct or cause the
direction of the investment policies of such entity.
33
“Investment Transaction” means, collectively, (a) the
contribution of the Tranche A Term
Loans to Travelport Guarantor as a capital contribution, (b) the guaranty by Travelport Guarantor
of and the pledge of the Tranche A Term Loans to secure Travelport Guarantors’ obligations under
such guaranty and the escrow arrangements related thereto, (c) the consummation of any other
transactions incidental to any of the foregoing and (d) the payment of fees and expenses in
connection with any of the foregoing.
“IP Collateral” means all “Intellectual Property Collateral” referred to in the Collateral
Documents and all of the other IP Rights that are or are required by the terms hereof or of the
Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of
the Secured Parties.
“IP Rights” has the meaning specified in Section 5.15.
“IRS” means the United States Internal Revenue Service.
“Judgment Currency” has the meaning specified in Section 10.19.
“Junior Financing” has the meaning specified in Section 7.11(a).
“Junior Financing Documentation” means any documentation governing any Junior Financing.
“L/C Obligations” has the meaning specified in the First Lien Credit Agreement.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.
“Lender” means a Tranche A Term Lender or a Tranche B Term Lender, as the context may require,
and their respective successors and assigns as permitted hereunder.
34
“Lending Office” means, as to any Lender, the office or offices of such Lender described
as such in such Lender’s Administrative Questionnaire, or such other office or offices, as a Lender
may from time to time notify the Borrower and the Administrative Agent.
“LIBO Rate” means, with respect to any Eurocurrency Rate Borrowing for any Interest Period,
the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time)
on the date that is two Business Days prior to the commencement of such Interest Period by
reference to the British Bankers’ Association Interest Settlement Rates for deposits in Dollars (as
set forth by Bloomberg Information Service or any successor thereto or any other service selected
by the Administrative Agent which has been nominated by the British Bankers’ Association as an
authorized information vendor for the purpose of displaying such rates) for a period equal to such
Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per
annum determined by the Administrative Agent to be the average of the rates per annum at which
deposits in Dollars are offered for such relevant Interest Period to major banks in the London
interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date that is two Business Days prior to the beginning of such Interest Period.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any easement, right of way or other encumbrance on title to real
property, and any Capitalized Lease having substantially the same economic effect as any of the
foregoing).
“Loan” means an extension of credit made by a Lender to the Borrower under Article II in the
form of a Tranche A Term Loan or a Tranche B Term Loan, as the context may require.
“Loan Documents” means, collectively, (i) this Agreement, (ii) the Notes, (iii) the Guaranty
and (iv) the Collateral Documents.
“Loan Parties” means, collectively, the Borrower and each Guarantor.
“Management Stockholders” means the members of management of Holdings or any of its
Subsidiaries who are investors in Holdings or any direct or indirect parent thereof.
“Mandatory Bond Prepayments” has the meaning specified in the First Lien Credit Agreement as
in effect on the date hereof.
35
prior to the date that is 91 days after the Maturity Date in effect on the date of incurrence
thereof, provided that, notwithstanding the foregoing, scheduled amortization payments (however
denominated) of such Indebtedness shall be permitted so long as the Weighted Average Life to
Maturity of such Indebtedness shall be longer than the remaining Weighted Average Life to Maturity
of each Class of the Loans outstanding as of the date of incurrence thereof, (iii) such
Indebtedness shall not be an obligation (including pursuant to a Guarantee) of any Person other
than the Borrower and the Guarantors, (iv) 100% of the Net Cash Proceeds of such Indebtedness shall
be applied, on the date of the incurrence thereof to repay or prepay all or any portion of the
outstanding Loans, (v) such Indebtedness shall not be secured by any Lien on any property or assets
of Holdings or any Subsidiary, provided that any such Indebtedness 100% of the Net Cash Proceeds of
which are applied in accordance with clause (iv) above may be secured on a second priority basis by
such property and assets of Holdings and the Subsidiaries as secure the Obligations, and (vi) both
immediately prior and after giving effect thereto, no Default exists or would result therefrom and
(b) any Permitted Refinancing in respect of the Indebtedness referred to in clause (a) above.
“Permitted Refinancing Indebtedness Documentation” means any documentation governing any
Permitted Refinancing Indebtedness.
“Permitted Transfer Date” has the meaning specified in the PIK
Credit Agreement attached as
Exhibit A to Exhibit F (Amendment Agreement) to the Disclosure Statement, dated September 28, 2011,
filed by Holdings with the Securities and Exchange Commission.
“Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.
“PIK Credit Agreement” means the Amended and Restated Credit Agreement, dated as of
[•], 2011,
among Travelport Holdings, Credit Suisse AGWells Fargo Bank, National Association, as
administrative agent, each lender
from time to time party thereto and the other agents and arrangers named therein, in
substantially the form attached as Exhibit A to Exhibit F (Amendment Agreement) to the Disclosure
Statement, dated September 28, 2011, filed by Holdings with the
Securities and Exchange Commission, as such Amended and Restated Credit Agreement may be amended, amended and restated, supplemented or
otherwise modified from time to time.
“PIK Guarantee” means any Guarantee by Holdings, the Borrower or any Restricted Subsidiary in
respect of any obligations of Travelport Holdings under the PIK Credit Agreement.
42
“Replacement Loans” has the meaning specified in Section 10.01.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the
regulations issued thereunder, other than events for which the thirty (30) day notice period has
been waived.
“Request” has the meaning specified in Section 6.18.
“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the
Total Outstandings; provided that the portion of Total Outstandings held or deemed held by Holdings
or any Affiliate thereof (other than an Investment Fund) shall be excluded for purposes of making a
determination of Required Lenders.
“Responsible Officer” means the chief executive officer, president, vice president, chief
financial officer, treasurer or assistant treasurer or other similar officer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or
other property) with respect to any Equity Interest of Holdings, the Borrower or any Restricted
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, defeasance,
acquisition, cancellation or termination of any such Equity Interest, or on account of any return
of capital to Holdings or the Borrower’s stockholders, partners or members (or the equivalent
Persons thereof).
“Restricted Subsidiary” means any Subsidiary of Holdings (including any Intermediate Holding
Company) other than an Unrestricted Subsidiary and other than the Borrower.
“Restructuring Transaction” means, collectively, (a) the amendment of the First Lien Credit
Agreement, (b) the formation of Travelport Guarantor, (c)
the execution, delivery and performance by the Loan Parties of the Loan Documents to which
they are a party on the Closing Date, (d) the incurrence by the Borrower of the Loans made on the
Closing Date, (e) the contribution of the Tranche A Term Loans to Travelport Guarantor on the
Closing Date as a capital contribution, (f) the sale of the Loans to Holdings on the Closing Date
in exchange for the Tranche A Intercompany Note, (g and the Tranche B Intercompany Note, (f) a cash
dividend in the amount of $89,500,000 from the Borrower to its direct or indirect parent companies,
the proceeds of which shall be used by Holdings to make a $85,000,000 cash dividend to Travelport
45
Holdings on the Closing Date, (hg) the dividend of the Tranche B Term Loans by Holdings to
Travelport Holdings on or after the Closing Date, (i) the guaranty by Travelport Guarantor of and
pledge of the Tranche A Term Loans to secure Travelport Guarantor’s obligations under such guaranty
and the escrow arrangements related thereto, (jh) the consummation of any other transactions
incidental to any of the foregoing and as disclosed to the Administrative Agent and the Lenders
prior to the Closing Date and (ki) the payment of fees and expenses in connection with any such
other transaction or any of the foregoing.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and any successor thereto.
“Same Day Funds” means immediately available funds.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.
“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the
Lenders, the Supplemental Agent and each co-agent or sub-agent appointed by the Administrative
Agent from time to time pursuant to Section 9.01(c).
“Security Agreement” means, collectively, the Second Lien Security Agreement executed by the
Loan Parties, substantially in the form of Exhibit F, together with each other security
agreement supplement executed and delivered pursuant to Section 6.11.
“Security Agreement Supplement” has the meaning specified in the Security Agreement.
“Senior Notes” means, collectively, (a) $450,000,000 in aggregate principal amount of the
Borrower’s 9⅞% senior dollar fixed rate notes due 2014, (b) $150,000,000 in aggregate principal
amount of the Borrower’s dollar floating rate senior unsecured notes due 2014 and (c) €235,000,000
in aggregate principal amount of the Borrower’s euro floating rate senior unsecured notes due 2014.
“Senior Notes Indenture” means the Indenture for the Senior Notes, dated as of August 23,
2006.
“Senior Subordinated Notes” means, collectively, (a) $300,000,000 in aggregate principal
amount of the Borrower’s 11⅞% senior subordinated notes due 2016 and
46
“Total Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated
Total Debt as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period.
“Total Outstandings” means, with respect to the Tranche A Term Loans and Tranche B Term Loans,
on any date, the principal amount outstanding thereof after giving effect to any borrowings and
prepayments or repayments of the Tranche A Term Loans and Tranche B Term Loans, as the case may be,
occurring on such date.
“Tranche A Intercompany Note” means that certain subordinated
promissory note, dated as of the
Closing Date made by Holdings to the Borrower in an amount equal to the initial aggregate principal
amount of the Tranche A Term Loans made on the Closing Date, which shall be substantially in the
form of Exhibit I.
“Tranche B Intercompany Note” means that certain subordinated
promissory note, dated as of the
Closing Date made by Holdings to the Borrower in an amount equal to the initial aggregate principal
amount of the Tranche B Term Loans made on the Closing Date, which shall be substantially in the
form of Exhibit J.
“Tranche A Term Lender” means, at any time, any Lender that has a Tranche A Term Loan at such
time.
“Tranche B Term Lender” means, at any time, any Lender that has a Tranche B Term Loan at such
time.
“Tranche A Term Loan” has the meaning specified in Section 2.01(a).
“Tranche B Term Loan” has the meaning specified in Section 2.01(b).
“Travelport Holdings” means Travelport Holdings Limited, a Bermuda company.
“Travelport Guarantor” means Travelport Guarantor LLC, a Delaware limited liability company,
which is a direct wholly owned Subsidiary of Holdings.
“Type” means, with respect to a Loan denominated in Dollars, its character as a Base Rate Loan
or a Eurocurrency Rate Loan.
50
“Unaudited Financial Statements” means the unaudited consolidated balance sheets and related
statements of income, stockholders’ equity and cash flows of Holdings and its Subsidiaries for each
subsequent fiscal quarter ended at least forty-five (45) days before the Closing Date, which
financial statements shall be prepared in accordance with GAAP.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code, as the same may from
time to time be in effect in the State of New York, or the Uniform Commercial Code (or similar code
or statute) of another jurisdiction, to the extent it may be required to apply to any item or items
of Collateral.
“United EBITDA” means (i) for each fiscal quarter ending on or prior to March 31, 2012,
$60,000,000, (ii) for the fiscal quarter ending June 30, 2012, $45,000,000, (iii) for the fiscal
quarter ending September 30, 2012, $30,000,000, (iv) for the fiscal quarter ending December 31,
2012, $15,000,000 and (v) for any subsequent fiscal quarter, $0.
“United States” and “U.S.” mean the United States of America.
“Unrestricted Subsidiary” means (a) each Subsidiary of Holdings listed on Schedule
1.01B and (b) any Subsidiary of Holdings designated by the board of directors of Holdings as an
Unrestricted Subsidiary pursuant to Section 6.14 subsequent to the Closing Date, and any Subsidiary
of such Subsidiary.
“U.S. Lender” has the meaning specified in Section 10.15(b).
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the
amount of each then remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and the making of such
payment by (b) the then outstanding principal amount of such Indebtedness.
“Wells Fargo” means Wells Fargo Bank, National Association and its
successors.
“wholly owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person
all of the outstanding Equity Interests of which (other than (a) directors’ qualifying shares and
(b) shares issued to foreign nationals to the extent required by applicable Law) are owned by such
Person and/or by one or more wholly owned Subsidiaries of such Person.
51
currency other than Dollars, such equivalent amount to be determined at the rate of exchange
quoted by the Reuters World Currency Page for the applicable currency at 11:00 a.m. (London
time) on such day (or, in the event such rate does not appear on any Reuters World Currency
Page, by reference to such other publicly available service for displaying exchange rates as may
be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such
agreement, such rate shall instead be the arithmetic average of the spot rates of exchange of
the Administrative Agent in the market where its foreign currency exchange operations in respect
of such currency are then being conducted, at or about 10:00 a.m. (New York City time) on such
date for the purchase of Dollars for delivery two Business Days later). Notwithstanding the
foregoing, for purposes of determining compliance with Sections 7.01, 7.02 and 7.03 with respect
to any amount of Indebtedness or Investment in a currency other than Dollars, no Default shall
be deemed to have occurred solely as a result of changes in rates of exchange occurring after
the time such Indebtedness or Investment is incurred; provided that, for the avoidance of doubt,
the foregoing provisions of this Section 1.08 shall otherwise apply to such Sections, including
with respect to determining whether any Indebtedness or Investment may be incurred at any time
under such Sections.
(b) For purposes of determining compliance under Sections 7.02, 7.05 and 7.06, any amount
in a currency other than Dollars will be converted to Dollars based on the average Exchange Rate
for such currency for the most recent twelve-month period immediately prior to the date of
determination determined in a manner consistent with that used in calculating EBITDA for the
applicable period.
ARTICLE II
THE LOANS
SECTION 2.01. The Loans.
(a) The Tranche A Term Borrowings. On the Closing Date, upon satisfaction of the
applicable conditions set forth in Section 4.01, the Tranche A Lender shall extend credit to the
Borrower by delivering the
Tranche A Intercompany Note to the Borrower, which extension of credit (i) shall be denominated in
Dollars, and (ii) shall be made in that aggregate principal amount set forth on Schedule 2.01(a)
hereto (each such extension of credit, a “Tranche A Term Loan”). Tranche A Term Loans may be
Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
(b) The Tranche B Term Borrowings. On the Closing Date, upon satisfaction of the
applicable conditions set forth in Section 4.01, the Tranche B
54
Lender
shall extend credit to the Borrower by delivering the Tranche B Intercompany Note to the
Borrower, which extension of credit (i) shall be denominated in Dollars and (ii) shall be made
in that aggregate principal amount set forth on Schedule 2.01(b) hereto (each such extension of
credit, a “Tranche B Term Loan”). Tranche B Term Loans may be Base Rate Loans or Eurocurrency
Rate Loans, as further provided herein.
SECTION 2.02. Borrowings, Conversions and Continuations of Loans.
(a) Each conversion of Loans from one Type to the other, and each continuation of
Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 12:00 p.m. (New York, New York time) (i) three (3) Business
Days prior to the requested date of any continuation of Eurocurrency Rate Loans denominated in
Dollars or any conversion of Base Rate Loans to Eurocurrency Rate Loans denominated in Dollars
and (ii) one (1) Business Day before the requested date of any conversion to Base Rate Loans.
Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each conversion to
or continuation of Eurocurrency Rate Loans shall be in a principal amount of $2,500,000 or a
whole multiple of $500,000 in excess thereof. Each conversion to Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed
Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting
a conversion of Tranche A Term Loans or Tranche B Term Loans from one Type to the other, or a
continuation of Eurocurrency Rate Loans, (ii) the requested date of the conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount and
Class of Loans to be converted or continued and (iv) the Type of Loans to which existing Loans
are to be converted. If with respect to
Loans denominated in Dollars the Borrower fails to specify a Type of Loan in a Committed
Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the
applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then
in effect with respect to the applicable Eurocurrency Rate Loans.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Pro Rata Share of the applicable conversion or
continuation of Loans, and if no timely notice of a conversion or continuation is provided by
the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans or continuation described in Section 2.02(a).
55
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan unless the
Borrower pays the amount due, if any, under Section 3.05 in connection therewith. During the
existence of an Event of Default, the Administrative Agent or the Required Lenders may require
that no Loans may be converted to or continued as Eurocurrency Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination
of such interest rate. The determination of the Eurocurrency Rate by the Administrative Agent
shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in
the Credit SuisseWells Fargo prime rate used in determining the Base Rate promptly following the
announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than eight (8)
Interest Periods in effect.
SECTION 2.03. [Reserved].
SECTION 2.04. [Reserved].
SECTION 2.05. Prepayments.
(a) Optional.
(i) Subject to Section 8.04, and so long as all amounts outstanding under the First Lien
Credit Agreement have been paid in full in Same Day Funds and there are no commitments or letters
of credit outstanding under the First Lien Credit Agreement (unless fully cash collateralized), the
Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily
prepay Loans of any Class, in whole or in part, without premium or penalty;
provided that (A) such notice must be received by the Administrative Agent not later than
12:00 p.m. (New York, New York time) (1) three (3) Business Days prior to any date of prepayment of
Eurocurrency Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of
Eurocurrency Rate Loans shall be in a principal amount of $2,500,000 or a whole multiple of
$500,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding. Each such notice shall specify
56
(d) Interest on each Loan shall be payable in Dollars.
(e) Accrued interest on the Loans shall be capitalized as of and added to principal
on each Interest Payment Date; provided that the Borrower shall, if the First Lien
Leverage Ratio (as defined in the First Lien Credit Agreement as in effect on the date
hereof) as of the end of the most recent Test Period is below 3.00:1, pay any such
accrued interest in cash. The Borrower shall notify the Administrative Agent (and a
Responsible Officer of the Borrower shall certify to the Administrative Agent that the
First Lien Leverage Ratio as of the most recent Test Period is below
3:00:1) of such
cash payment no later than two Business Days prior to making such payment.
SECTION 2.09. Fees. The Borrower shall pay to the Agents such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly
agreed between the Borrower and the applicable Agent).
SECTION 2.10. Computation of Interest and Fees. All computations of interest for Base
Rate Loans when the Base Rate is determined by Credit Suisse’sWells Fargo’s “prime rate”
shall be made on the basis of a year of three hundred and sixty-five/three hundred
sixty-six (365/366) days and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a three hundred and sixty (360) day year and actual days
elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid;
provided that any Loan that is repaid on the same day on which it is made shall, subject to Section
2.12(a), bear interest for one (1) day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.11. Evidence of Indebtedness.
(a) The Loans made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and evidenced by one or more entries in the Register
maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as agent for the Borrower, in each case in the ordinary
course of business. The accounts or records maintained by the Administrative Agent and
each Lender shall be prima facie evidence absent manifest error of the amount of the
Loans made by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrower hereunder to pay any amount owing with respect to
the Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the
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Party, each in form and substance reasonably satisfactory to the Administrative
Agent and its legal counsel:
| (i) | executed counterparts of this Agreement, the Intercreditor Agreement and each Guaranty; | ||
| (ii) | a Note executed by the Borrower in favor of each Lender, upon the request of any Lender made through the Administrative Agent; | ||
| (iii) | each Collateral Document set forth on Schedule 1.01B, duly executed by each Loan Party thereto, together with, evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; | ||
| (iv) | a Perfection Certificate with respect to the Loan Parties dated as of the Closing Date, | ||
| (v) | in respect of each Loan Party, a certificate of such Loan Party attaching (i) a copy of its Organization Documents and, to the extent applicable, certified as of the Closing Date or a recent date prior thereto by the appropriate governmental authority; (ii) signature and incumbency certificates of the officers of such Loan Party executing the Loan Documents to which such Loan Party is a Party; (iii) resolutions of the board of directors, board of managers or similar governing body (and, if applicable, of the shareholders or members) of such Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date, certified as of the Closing Date by its secretary, an assistant secretary, director, counsel, attorney or other Responsible Officer as being in full force and effect without modification or amendment; (iv) if applicable in the jurisdiction of incorporation, organization or formation, as applicable, of such Loan Party, a good standing, status or similar certificate from the applicable governmental authority of such Loan Party’s jurisdiction of incorporation, organization or formation, each dated the Closing Date or a recent date prior thereto; and (v) other certificates of Responsible Officers of such Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date; |
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| (vi) | a certificate signed by a Responsible Officer of the Borrower certifying that (x) since December 31, 2010 there has been no Material Adverse Effect and (y) as of the Closing Date, after giving effect to the Loans made on the Closing Date, no Default or Event of Default exists hereunder and no “Default” or “Event of Default” exists under and as defined in the First Lien Credit Agreement; | ||
| (vii) | a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date after giving effect to the Restructuring Transaction, from the Chief Financial Officer of the Borrower; | ||
| (viii) | evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that, subject to the terms of the Intercreditor Agreement, the Collateral Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Collateral Agent shall have requested to be so named; and | ||
| (ix) | copies of
|
| (b) | All fees and expenses required to be paid hereunder and invoiced before the Closing Date shall have been paid in full in cash. | |
| (c) | The Borrower and the Administrative Agent shall each have executed a fee letter between the Borrower and the Administrative Agent and the Borrower shall have paid to the Administrative Agent any fees required to be paid on or prior to the Closing Date as provided therein. | |
| (d) | The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the Closing Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates. | |
| (e) | No Default shall exist or would result from the Loans made on the Closing Date. |
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SECTION 6.08. Compliance with Laws. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its
business or property, except if the failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.
SECTION 6.09. Books and Records. Maintain proper books of record and account, in
which entries that are full, true and correct in all material respects and are in conformity with
GAAP consistently applied shall be made of all material financial transactions and matters
involving the assets and business of Holdings or such Subsidiary, as the case may be.
SECTION 6.10. Inspection Rights. Permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine
its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and
to discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the reasonable expense of the Borrower and at such reasonable times during
normal business hours and as often as may be reasonably desired, upon reasonable advance notice to
the Borrower; provided that, excluding any such visits and inspections during the continuation of
an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of
the Administrative Agent and the Lenders under this Section 6.10 and the Administrative Agent shall
not exercise such rights more often than two (2) times during any calendar year absent the
existence of an Event of Default and only one (1) such time shall be at the Borrower’s expense;
provided further that when an Event of Default exists, the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at
the expense of the Borrower at any time during normal business hours and upon reasonable advance
notice. The Administrative Agent and the Lenders shall give the Borrower the opportunity to
participate in any discussions with Holdings’ independent public accountants.
SECTION 6.11. Covenant to Guarantee Obligations and Give Security. At the Borrower’s
expense, take all action necessary or reasonably requested by the Administrative Agent to ensure
that the Collateral and Guarantee Requirement continues to be satisfied at all times,
including but in any such case subject to Section 6.17 and the terms of the Intercreditor
Agreement.
(a) upon the formation or acquisition of any new direct or indirect wholly owned
Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded
Subsidiary) by any Loan Party or the designation in accordance with Section 6.14 of any
existing direct or indirect wholly owned Domestic Subsidiary (other than an Excluded
Subsidiary) as a Restricted Subsidiary:
(i) within thirty (30) days after such formation, acquisition or designation or such
longer period as the Administrative Agent may agree in its discretion:
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(A) cause each such Restricted Subsidiary that is or is required to be a Domestic
Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative
Agent a description of the real properties owned by such Restricted Subsidiary that have a
book value in excess of $7,250,000 in detail reasonably satisfactory to the Administrative
Agent;
(B) cause (x) each such Restricted Subsidiary that is or is required to be a
Domestic
Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver
to the Administrative Agent or the Collateral Agent (as appropriate) Mortgages, Security
Agreement Supplements, Intellectual Property Security Agreements and other security
agreements and documents (including, with respect to Mortgages, the documents listed in
Section 6.13(b)), as reasonably requested by and in form and substance reasonably
satisfactory to the Administrative Agent (consistent with the Mortgages, Security
Agreement, Intellectual Property Security Agreements and other Collateral Documents in
effect on the Closing Date), in each case granting Liens required by the Collateral and
Guarantee Requirement and (y) each direct or indirect parent of each such Restricted
Subsidiary that is or is required to be a Domestic Guarantor pursuant to the Collateral and
Guarantee Requirement to duly execute and deliver to the Administrative Agent such Security
Agreement Supplements and other security agreements as reasonably requested by and in form
and substance reasonably satisfactory to the Administrative Agent (consistent with the
Security Agreements in effect on the Closing Date), in each case granting Liens required by
the Collateral and Guarantee Requirement;
(C) (x) cause each such Restricted Subsidiary that is required to become a
Domestic
Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all
certificates representing Equity Interests (to the extent certificated) that are required
to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated
stock powers or other appropriate instruments of transfer executed in blank and instruments
evidencing the intercompany Indebtedness held by such Restricted Subsidiary and required to
be pledged pursuant to the Collateral Documents, indorsed in blank to the Collateral Agent
and (y) cause each direct or indirect parent of such Restricted Subsidiary that is required
to be a Domestic Guarantor pursuant to the Collateral and Guarantee Requirement to
deliver any and all certificates representing the outstanding Equity Interests (to the
extent certificated) of such Restricted Subsidiary that are required to be pledged pursuant
to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other
appropriate instruments of transfer executed in blank and instruments evidencing the
intercompany Indebtedness issued by such Restricted Subsidiary and required to be pledged
in accordance with the Collateral Documents, indorsed in blank to the Collateral Agent; and
(D) take, and cause such Restricted Subsidiary and each direct or indirect parent
of
such Restricted Subsidiary that is or is required to be a
Domestic Guarantor pursuant to the Collateral and Guarantee Requirement to take,
whatever action
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(including the recording of Mortgages, the filing of Uniform Commercial Code financing
statements and delivery of stock and membership interest certificates) may be necessary in
the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or
in any representative of the Administrative Agent designated by it) valid Liens required by
the Collateral and Guarantee Requirement, enforceable against all third parties in
accordance with their terms, except as such enforceability may be limited by Debtor Relief
Laws and by general principles of equity;
(ii) within thirty (30) days after the request therefor by the Administrative Agent,
deliver to the Administrative Agent a signed copy of an opinion, addressed to the
Administrative Agent and the other Secured Parties, of counsel for the Loan Parties
reasonably acceptable to the Administrative Agent as to such matters set forth in this
Section 6.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the request therefor by the Administrative
Agent, deliver to the Administrative Agent with respect to each parcel of real property
that is owned by such Restricted Subsidiary that is or is required to be a Domestic
Guarantor pursuant to the Collateral and Guarantee Requirement and has a book value in
excess of $7,250,000 any existing title reports, surveys or environmental assessment
reports.
(b) (i) the Borrower shall obtain the security interests and Guarantees set forth
on Schedule 1.01A on or prior to the dates corresponding to such security
interests and Guarantees set forth on Schedule 1.01A; and
(ii) after the Closing Date, promptly after (x) the acquisition of any material
personal property by the Borrower or any Domestic Guarantor or (y) the acquisition of any
owned real property by the Borrower or any Domestic Guarantor with a book value in excess
of $7,250,000, and if such personal property or owned real property shall not already be
subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the
Borrower shall give notice thereof to the Administrative Agent and promptly thereafter
shall cause such assets to be subjected to a Lien to the extent required by the Collateral
and Guarantee Requirement and will take, or cause the Borrower or relevant Domestic
Guarantor to take, such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect or record such Lien, including, as applicable,
the actions referred to in Section 6.13(b) with respect to real property.
(c) with respect to each domestic deposit account and other
domestic bank and
securities accounts (other than Excluded Accounts (as defined in the Security
Agreement)), maintained by the Borrower or any Domestic Guarantor with any depositary
bank or securities intermediary, subject to the Intercreditor Agreement
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and upon receipt of a written notice from the First Priority Administrative Agent
to the applicable depositary bank or securities intermediary, with a copy to the
Borrower or any Domestic Guarantor, as applicable, that a Discharge of First Priority
Claims (as defined in the Intercreditor Agreement) has occurred (such date, the
“Discharge Date”), the Borrower and each applicable Domestic Guarantor, shall enter into
a control agreement with such depositary bank or securities intermediary as soon as
practicable but in no event later than one hundred and twenty (120) days of the
Discharge Date (or such longer period as the Administrative Agent may agree in writing
in its reasonable discretion).
SECTION 6.12. Compliance with Environmental Laws. Except, in each case, to the extent
that the failure to do so could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, comply, and take all reasonable actions to cause all lessees
and other Persons operating or occupying its properties to comply with all applicable Environmental
Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its
operations and properties; and, in each case to the extent required by Environmental Laws, conduct
any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or
other action necessary to remove and clean up all Hazardous Materials from any of its properties,
in accordance with the requirements of all Environmental Laws.
SECTION 6.13. Further Assurances and Post-Closing Conditions.
(a) Promptly upon reasonable request by the Administrative Agent
or the Required
Lenders (i) correct any material defect or error that may be discovered in the
execution, acknowledgment, filing or recordation of any Collateral Document or other
document or instrument relating to any Collateral, and (ii) do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any and all such
further acts, deeds, certificates, assurances and other instruments as the
Administrative Agent may reasonably request from time to time in order to carry out more
effectively the purposes of the Collateral Documents.
(b) In the case of any real property referred to in Section 6.11(b), provide the
Administrative Agent with Mortgages with respect to such owned real property within
thirty (30) days of the acquisition of, or, if requested by the Administrative Agent,
entry into, or renewal of, a ground lease in respect of, such real property in each case
together with:
(i) evidence that counterparts of the Mortgages have been duly executed, acknowledged
and delivered and are in form suitable for filing or recording in all filing or recording
offices that the Administrative Agent may deem reasonably necessary or desirable in order
to create a valid and subsisting perfected Lien on the property and/or
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Subsidiaries as Restricted Subsidiaries, and Travelport Guarantor shall continue to be an
Unrestricted Subsidiary until the Settlement Date (as defined in the
PIK Credit
Agreement)). The
designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by
Holdings therein at the date of designation in an amount equal to the net book value of Holdings’
investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary
shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such
Subsidiary existing at such time.
SECTION 6.15. Flood Insurance. With respect to each Mortgaged Property, obtain flood
insurance in such total amount as the Administrative Agent or
the Required
Lenders, may from time
to time reasonably require, if at any time the area in which any improvements are located on any
Mortgaged Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by
the Federal Emergency Management Agency (or any successor agency), and otherwise comply with the
National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as
amended from time to time.
SECTION 6.16. Orbitz Indebtedness. If Orbitz Topco, any of its Subsidiaries or any
other Person whose primary assets or operations comprise a portion of the Orbitz Business and that
is not then a Loan Party Guarantees or otherwise becomes liable for any Indebtedness of Holdings
and its Subsidiaries (other than Orbitz Topco, any of its Subsidiaries or any other Person whose
primary assets or operations comprise a portion of the Orbitz Business), such Person shall become
subject to the Collateral and Guarantee Requirement hereunder as if such Person were a Restricted
Subsidiary (it being understood that in such case such Person shall, other than for purposes of
granting guarantees and collateral pursuant to the Collateral and Guarantee Requirement, not be
considered a Restricted Subsidiary hereunder).
SECTION 6.17. Post-Closing Matters.
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and filings in connection with the Mortgage that the Administrative Agent may deem
reasonably necessary shall have been taken, completed or otherwise provided for in a
manner reasonably satisfactory to the Administrative Agent; provided that the applicable
Loan Party shall not be required to deliver the foregoing items if such Mortgaged
Property shall have been sold, transferred or otherwise disposed of pursuant to a
Disposition permitted by Section 7.05 within 120 days after the Closing Date.
SECTION 6.18. Bond Conversion Offer. No earlier than thirty (30) calendar days after
the Closing Date and no later than sixty (60) calendar days after the Closing Date, Lenders holding
more than 50% of the Total Outstandings with respect to the Tranche B Term Loans may deliver an
irrevocable written request (the “Request”) to the Borrower to commence a Bond Conversion Offer. As
soon as practicable (and in any event within [twenty
(20) calendar days]) after receipt of the
Request (the “Notice Date”, the Borrower shall provide notice of the Bond Conversion Offer
(specifying the Consummation Date) to each Tranche B Term Lender and the Loans held by each Tranche
B Term Lender shall be converted to Conversion Bonds on the Consummation Date, unless such Tranche
B Lender notifies the Borrower in writing (which notice shall be irrevocable) within three (3)
Business Days of the Notice Date of its intent to not participate in the Bond Conversion Offer (the
“Opt-out Notice”). No later than five (5) Business Days after the Notice Date (the “Consummation
Date”), the Bond Conversion Offer shall be consummated and the Borrower shall (or shall be deemed
to) (i) convert all Tranche B Loans that were not the subject of an Opt-out Notice and all Tranche
A Loans into Conversion Bonds, (ii) cause the trustee under the Indenture to authenticate and
deliver Conversion Bonds in global form with customary legends for private bonds with a principal
amount equal to the principal amount of the Loans converted on the Consummation Date and (iii)
execute and deliver the Indenture and any other documents and instruments contemplated thereby or
hereby. The Borrower agrees that the Consummation Date shall occur no later than thirty (30)
calendar days after delivery of the Request. It is understood and agreed that on and after the
Consummation Date (x) any Loans that have not been converted pursuant to the Bond Conversion Offer
shall no longer be secured by the Collateral Documents, and the Liens and security interests
provided for
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(k) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the ordinary course of
business;
(l) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on the items in the course of collection, and (ii) in favor of a banking institution
arising as a matter of law encumbering deposits (including the right of setoff) and which are
within the general parameters customary in the banking industry;
(m) Liens (i) on cash advances in favor of the seller of any property to be acquired in an
Investment permitted pursuant to Section 7.02(i) or to be applied against the purchase price for
such Investment, (ii) attaching to commodity trading accounts or other commodities brokerage
accounts incurred in the ordinary course of business and (iii) consisting of an agreement to
Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to
the extent such Investment or Disposition, as the case may be, would have been permitted on the
date of the creation of such Lien;
(n) Liens on property (i) of any Foreign Subsidiary that is not a Loan Party as of the
Closing Date and (ii) that does not constitute Collateral, which Liens secure Indebtedness of
the applicable Foreign Subsidiary permitted under Section 7.03;
(o) Liens in favor of Holdings, the Borrower or a Restricted Subsidiary securing
Indebtedness permitted under Section 7.03(d);
(p) Liens existing on property at the time of its acquisition or existing on the property
of any Person at the time such Person becomes a Restricted Subsidiary (other than by designation
as a Restricted Subsidiary pursuant to Section 6.14), in each case after the Closing Date (other
than Liens on the Equity Interests of any Person that becomes a Restricted Subsidiary) and the
replacement, extension or renewal of any Lien permitted by this clause (p) upon or in the same
property previously subject thereto in connection with the replacement, extension or renewal
(without increase in the amount or any change in any direct or contingent obligor) of the amount
or value secured thereby; provided that (i) such Lien was not created in contemplation of such
acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to
or cover any other assets or property (other than the proceeds or products thereof and other
than after-acquired property subjected to a Lien securing Indebtedness and other obligations
incurred prior to such time and which Indebtedness and other obligations are permitted hereunder
that require, pursuant to their terms at such time, a pledge of after-acquired property, it
being understood that such requirement shall not be permitted to apply to any property to which
such
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requirement would not have applied but for such acquisition), and (iii) the Indebtedness secured
thereby is permitted under Section 7.03(e), (g) or (k);
(q) any interest or title of a lessor under leases entered into by Holdings, the Borrower
or any of the Restricted Subsidiaries in the ordinary course of business;
(r) second-priority Liens (pari passu with the
Liens securing the Obligations) on all or a
portion of the Collateral to secure Permitted Refinancing Indebtedness and First Lien Credit
Agreement Permitted Refinancing Indebtedness;
(s) Liens encumbering out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by Holdings, the Borrower or any of the Restricted
Subsidiaries in the ordinary course of business permitted by this Agreement;
(t) Liens deemed to exist in connection with Investments in repurchase agreements under
Section 7.02 and reasonable customary initial deposits and margin deposits and similar Liens
attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary
course of business and not for speculative purposes;
(u) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness, (ii)
relating to pooled deposit or sweep accounts of Holdings, the Borrower or any Restricted
Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of Holdings, the Borrower and the Restricted Subsidiaries or (iii) relating
to purchase orders and other agreements entered into with customers of Holdings, the Borrower or
any Restricted Subsidiary in the ordinary course of business;
(v) Liens solely on any cash earnest money deposits made by Holdings, the Borrower or any
of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement
permitted hereunder;
(w) (i) Liens placed upon the Equity Interests of any Restricted Subsidiary acquired
pursuant to a Permitted Acquisition to secure Indebtedness incurred pursuant to Section 7.03(g)
in connection with such Permitted Acquisition and (ii) Liens placed upon the assets of such
Restricted Subsidiary and any of its Subsidiaries to secure a Guarantee by such Restricted
Subsidiary and its Subsidiaries of any such Indebtedness incurred pursuant to Section 7.03(g);
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(c) Investments (i) by Holdings, the Borrower or any Restricted Subsidiary in any Loan
Party (excluding any new Restricted Subsidiary which becomes a Loan Party and excluding any
Foreign Subsidiary), (ii) by any Restricted Subsidiary that is not a Loan Party in any other
such Restricted Subsidiary that is also not a Loan Party and (iii) by the Borrower or any
Restricted Subsidiary (A) in any Restricted Subsidiary that is not a Loan Party; provided that
the aggregate amount of such Investments in Persons that are not Loan Parties (together with,
but without duplication of, (a) the aggregate consideration paid in respect of Permitted
Acquisitions of Persons that do not become Loan Parties pursuant to Section 7.02(i)(B), (b) the
aggregate consideration paid on or prior to the Closing Date in respect of Permitted
Acquisitions of Persons that did not become Loan Parties pursuant to Section 7.02(i)(B) of the
First Lien Credit Agreement, and (c) any amounts invested in Foreign Subsidiaries that are not
Loan Parties on or prior to the Closing Date pursuant to Section 7.02(c)(iii)(A) of the First
Lien Credit Agreement , but
within each case after giving effect to any Investment permitted by
Section 7.02(q)(including any amounts invested on or prior to the Closing Date pursuant to
Section 7.02(q) of the First Lien Credit Agreement)) shall not exceed $471,250,000 (net of any
return representing a return of capital in respect of any such Investment) or (B) in any Foreign
Subsidiary that is a Loan Party, consisting of the contribution of Equity Interests of any other
Foreign Subsidiary held directly by the Borrower or such Restricted Subsidiary in exchange for
Indebtedness, Equity Interests or a combination thereof of the Foreign Subsidiary to which such
contribution is made, (C) in any Foreign Subsidiary, constituting an exchange of Equity
Interests of such Foreign Subsidiary for Indebtedness of such Foreign Subsidiary or (D)
constituting Guarantees of Indebtedness or other monetary obligations of Foreign Subsidiaries
owing to any Loan Party, to the extent such Guarantees are permitted under Section 7.03 and (iv)
by any Foreign Subsidiary that is a Loan Party in any other Foreign Subsidiary that is a Loan
Party (other than any new Restricted Subsidiary that becomes a Loan Party);
(d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors and other credits to suppliers in the ordinary course of business;
(e) Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions and
Restricted Payments permitted under Sections 7.01, 7.03, 7.04, 7.05 and 7.06, respectively;
(f) Investments (i) existing or contemplated on the Closing Date and set forth on
Schedule 7.02(f) and any modification, replacement, renewal, reinvestment or extension
thereof and (ii) existing on the Closing Date by Holdings, the Borrower or any Restricted
Subsidiary in the Borrower or any other Restricted Subsidiary and any modification, renewal or
extension thereof; provided that the
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amount of any Investment permitted pursuant to this Section 7.02(f) is not materially increased
from the amount of such Investment on the Closing Date via the transfer of assets from any of
Holdings or any Subsidiary thereof to such Investment;
(g) Investments in Swap Contracts permitted under Section 7.03;
(h) promissory notes and other noncash consideration received in connection with
Dispositions permitted by Section 7.05;
(i) the purchase or other acquisition of property and assets or businesses of any Person or
of assets constituting a business unit, a line of business or division of such Person, or Equity
Interests in a Person that, upon the consummation thereof, will be a wholly owned Subsidiary of
Holdings (including as a result of a merger or consolidation); provided that, with respect to
each purchase or other acquisition made pursuant to this Section 7.02(i) (each, a “Permitted
Acquisition”):
(A) subject to clause (B) below, a majority of all property, assets and
businesses acquired in
such purchase or other acquisition shall constitute Collateral and each applicable Loan Party and
any such newly created or acquired Subsidiary (and, to the extent required under the Collateral and
Guarantee Requirement, the Subsidiaries of such created or acquired Subsidiary) shall be Guarantors
and shall have complied with the requirements of Section 6.11, within the times specified therein
(for the avoidance of doubt, this clause (A) shall not override any provisions of the Collateral
and Guarantee Requirement);
(B) the aggregate amount of consideration paid in respect of acquisitions of
Persons that do
not become Loan Parties (together with, but without duplication of, (a) the aggregate amount of all
Investments in Foreign Subsidiaries that are not Loan Parties pursuant to Section 7.02(c)(iii)(A),
(b) the aggregate amount of Investments in Foreign Subsidiaries that are not Loan Parties made on
or prior to the Closing Date pursuant to Section 7.02(c)(iii)(A) of the First Lien Credit
Agreement, and (c) any amounts paid on or prior to the Closing Date pursuant to Section 7.02(i)(B)
of the First Lien Credit Agreement, but within each case after giving effect to any Investments
permitted under Section 7.02(q) (including any amounts invested on or prior to the Closing Date
pursuant to Section 7.02(q) of the First Lien Credit Agreement)) shall not exceed $471,250,000 (net
of any return representing a return of capital in respect of any such Investment) less any amounts
previously paid pursuant to Section 7.02(i)(B) of the First Lien Credit Agreement as of the date
hereof;
(C) the acquired property, assets, business or Person is in the same line of
business as
Holdings and the Subsidiaries, taken as a whole;
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(D) the board of directors (or similar governing body) of the Person to be so
purchased
or acquired shall not have indicated publicly its opposition to the consummation of such purchase
or acquisition (which opposition has not been publicly withdrawn);
(E) immediately before and immediately after giving Pro Forma Effect to any such
purchase or
other acquisition, no Default shall have occurred and be continuing; and
(F) the Borrower shall have delivered to the Administrative Agent, on behalf of the
Lenders,
no later than five (5) Business Days after the date on which any such purchase or other acquisition
is consummated, a certificate of a Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this
clause (i) have been satisfied or will be satisfied on or prior to the consummation of such
purchase or other acquisition;
(j) the First Lien Original Closing Date Transaction and, the Restructuring Transaction and
the Investment Transaction;
(k) Investments in the ordinary course of business consisting of Article 3 endorsements for
collection or deposit and Article 4 customary trade arrangements with customers consistent with
past practices;
(l) Investments (including debt obligations and Equity Interests) received in connection
with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent
obligations of, or other disputes with, customers and suppliers arising in the ordinary course
of business or upon the foreclosure with respect to any secured Investment or other transfer of
title with respect to any secured Investment;
(m) loans and advances to Holdings (or any direct or indirect parent thereof) in lieu of,
and not in excess of the amount of (after giving effect to any other loans, advances or
Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made
to Holdings (or such parent) in accordance with Section 7.06(h), (i) or (j);
(n) so long as immediately after giving effect to any such Investment, no Default has
occurred and is continuing, other Investments that do not exceed $26,000,000 in the aggregate,
net of any return representing return of capital in respect of any such investment and valued at
the time of the making thereof; provided that, such amount shall be increased by the Net Cash
Proceeds of Permitted Equity
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Issuances (other than Permitted Equity Issuances made pursuant to Section 8.05 of the
First Lien Credit Agreement) that are Not Otherwise Applied;
(o) advances of payroll payments to employees in the ordinary course of business;
(p) Investments to the extent that payment for such Investments is made solely with
Qualified Equity Interests of Holdings (or the Borrower or an Intermediate Holding
Company after a Qualifying IPO of Holdings, the Borrower or such Intermediate Holding
Company);
(q) Investments held by a Restricted Subsidiary (acquired after the Closing Date or
of a corporation merged into the Borrower or merged or consolidated with a Restricted
Subsidiary in accordance with Section 7.04 after the Closing Date), to the extent that
such Investments were not made in contemplation of or in connection with such
acquisition, merger or consolidation and were in existence on the date of such
acquisition, merger or consolidation;
(r) Guarantees by Holdings, the Borrower or any Restricted Subsidiary of leases
(other than Capitalized Leases) or of other obligations that do not constitute
Indebtedness, in each case entered into in the ordinary course of business;
(s) [reserved]; and
(t) any Investments in Orbitz TopCo, so long as the amount actually invested in
Orbitz TopCo by Holdings or a Restricted Subsidiary does not increase upon and following
the Orbitz IPO (it being understood that increases in the value of Orbitz TopCo upon and
following the Orbitz IPO that do not result from Investments by Holdings or a Restricted
Subsidiary in Orbitz TopCo shall be permitted by this clause (t));
provided that (x) the only Investment in Travelport Guarantor that shall be permitted to
be made under this Section 7.02 shall be pursuant to the Investment Transaction and (y)
no Investment in an Unrestricted Subsidiary that would otherwise be permitted under this
Section 7.02 shall be permitted hereunder to the extent that any portion of
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such Investment is used to make any prepayments, redemptions, purchases, defeasances and
other payments in respect of Junior Financings.
SECTION 7.03. Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness,
except:
(a) Indebtedness of Holdings, the Borrower and any of its Subsidiaries under the
Loan Documents;
(b) Indebtedness (i) outstanding on the First Lien Original Closing Date and listed
on Schedule 7.03(b) and, other than in respect of any letter of credit or any surety
bond listed thereon or any drawing upon any such letter of credit or surety bond, any
Permitted Refinancing thereof; and (ii) intercompany Indebtedness outstanding on the
First Lien Original Closing Date;
(c) Guarantees by Holdings, the Borrower or any Restricted Subsidiary in respect of
Indebtedness of Holdings, the Borrower or any Restricted Subsidiary otherwise permitted
hereunder (except that a Restricted Subsidiary that is not a Loan Party may not, by
virtue of this Section 7.03(c), Guarantee Indebtedness that such Restricted Subsidiary
could not otherwise incur under this Section 7.03); provided that (A) no Guarantee by
any Restricted Subsidiary of any Indebtedness, the First Lien Credit Agreement, any High
Yield Note, Junior Financing, Permitted Refinancing Indebtedness or First Lien Credit
Agreement Permitted Refinancing Indebtedness shall be permitted unless such Restricted
Subsidiary shall have also provided a Guarantee of the Obligations substantially on the
terms set forth in the Guaranty and (B) if the Indebtedness being Guaranteed is
subordinated to the Obligations, such Guarantee shall be subordinated to the Guarantee
of the Obligations on terms at least as favorable to the Lenders as those contained in
the subordination of such Indebtedness;
(d) Indebtedness of Holdings, the Borrower or any Restricted Subsidiary owing to
Holdings, the Borrower or any other Restricted Subsidiary to the extent constituting an
Investment permitted by Section 7.02; provided that, all such Indebtedness of any Loan
Party owed to any Person that is not a Loan Party shall be subject to the subordination
terms set forth in Section 5.03 of the Security Agreement;
(e) (i) Attributable Indebtedness and other Indebtedness (including Capitalized
Leases) financing the acquisition, construction, repair, replacement or improvement of
fixed or capital assets, other than software; provided that such Indebtedness is
incurred concurrently with or within two hundred and seventy (270) days after the
applicable acquisition, construction, repair, replacement or
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(o) entry into the Permitted Disposition Agreement and consummation of the
Permitted Disposition; provided that (i) the Permitted Disposition shall not be
consummated unless at least $655,000,000 of Net Cash Proceeds will be received by the
Borrower and/or its Subsidiaries (other than an Unrestricted Subsidiary) upon
consummation thereof, (ii) such Net Cash Proceeds shall have been applied to prepay
First Lien Loans pursuant to Section 2.05(b)(ii) of the First Lien Credit Agreement;
(iii) notwithstanding any provision to the contrary contained in the Loan Documents, the
Permitted Disposition shall only be made pursuant to and in accordance with this Section
7.05(o) and not pursuant to any other provision of this Agreement, and (iv) the Borrower
shall give prompt written notice to the Administrative Agent of the earlier to occur of
(A) the termination or expiration of the Permitted Disposition Agreement and (B) the
consummation of the Permitted Disposition;
(p) any Disposition consisting of a substantially concurrent
cancellation of the
Tranche A Intercompany Note and Tranche A Term Loans in the event that the Permitted
Transfer Date fails to occur on or prior to September 30, 2012; and
(q) the Disposition of the Tranche A Term Loans to Travelport
Guarantor pursuant to
the Investment Transaction;
provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to
Sections 7.05(e) and ), (m) and (q) and except for Dispositions from a Loan Party to another Loan
Party), shall be for no less than the fair market value of such property at the time of such
Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section
7.05 to any Person other than Holdings, the Borrower or any Restricted Subsidiary, such Collateral
shall be sold free and clear of the Liens created by the Loan Documents, and, if requested by the
Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by
this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be
authorized to take any actions deemed appropriate in order to effect the foregoing.
SECTION 7.06. Restricted Payments. Declare or make, directly or
indirectly, any Restricted
Payment, except:
(a) the Borrower and each Restricted Subsidiary may make Restricted Payments to
Holdings, the Borrower and to other Restricted Subsidiaries (and, in the case of a
Restricted Payment by a non-wholly owned Restricted Subsidiary, to Holdings, the
Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests
of such Restricted Subsidiary based on their relative ownership interests of the
relevant class of Equity Interests);
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(b) Holdings, the Borrower and each Restricted Subsidiary may declare and make
dividend payments or other distributions payable solely in the Equity Interests (other
than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such
Person;
(c) [Reserved];
(d) Restricted Payments made on August 23, 2006 to consummate the Original Closing
Date Transactions (as defined in the First Lien Credit Agreement as in effect on the
date hereof);
(e) to the extent constituting Restricted Payments, Holdings, the Borrower and the
Restricted Subsidiaries may enter into and consummate transactions expressly permitted
by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(f) repurchases of Equity Interests in Holdings, the Borrower or any Restricted
Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity
Interests represent a portion of the exercise price of such options or warrants;
(g) Holdings (or the Borrower or any Intermediate Holding Company after a
Qualifying IPO of Holdings, the Borrower or such Intermediate Holding Company, as the
case may be) may pay (or make Restricted Payments to allow any direct or indirect parent
thereof to pay) for the repurchase, retirement or other acquisition or retirement for
value of Equity Interests of Holdings (or of any such parent of Holdings or of the
Borrower or any Intermediate Holding Company after a Qualifying IPO of Holdings, the
Borrower or such Intermediate Holding Company, as the case may be) by any future,
present or former employee or director of Holdings (or any direct or indirect parent of
Holdings) or any of its Subsidiaries pursuant to any employee or director equity plan,
employee or director stock option plan or any other employee or director benefit plan or
any agreement (including any stock subscription or shareholder agreement) with any
employee or director of Holdings or any of its Subsidiaries; provided that the aggregate
amount of Restricted Payments made pursuant to this clause (g) shall not exceed
$37,700,000, in any calendar year (which shall increase to $47,125,000 subsequent to the
consummation of a Qualifying IPO of Holdings, the Borrower or such Intermediate Holding
Company, as the case may be) (with unused amounts in any calendar year being carried
over to succeeding calendar years subject to a maximum (without giving effect to the
following proviso) of $47,125,000 in any calendar year (which shall increase to
$94,250,000, subsequent to the consummation of a Qualifying IPO of Holdings, the
Borrower or such
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Intermediate Holding Company, as the case may be)); provided further that such amount in
any calendar year may be increased by an amount not to exceed:
(i) the Net Cash Proceeds from the sale of Equity Interests (other than Disqualified
Equity Interests) of Holdings and, to the extent contributed to Holdings, Equity Interests
of any of Holdings’ direct or indirect parent companies, in each case to members of
management, directors or consultants of Holdings, any of its Subsidiaries or any of its
direct or indirect parent companies that occurs after the Closing Date, to the extent the
Net Cash Proceeds from the sale of such Equity Interests have been Not Otherwise Applied to
the payment of Restricted Payments by virtue of Section 7.06(i); plus
(ii) the Net Cash Proceeds of key man life insurance policies received by Holdings or
its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds
described in clauses (i) and (ii) of this Section 7.06(g);
provided further that any cancellation of Indebtedness owing to Holdings from members of management
of Holdings, any of Holdings’ direct or indirect parent companies or any of Holdings’ Restricted
Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any of its direct
or indirect parent companies will be deemed not to constitute a Restricted Payment for purposes of
this covenant or any other provision of this Agreement;
(h) the Borrower and its Restricted Subsidiaries may make Restricted Payments to
Holdings:
(i) the proceeds of which will be used to pay (or to make Restricted Payments to allow
any direct or indirect parent of Holdings to pay) the tax liability to each relevant
jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the
relevant jurisdiction of Holdings (or such parent) attributable to Holdings, the Borrower
or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings to pay (or to make Restricted
Payments to allow any direct or indirect parent of Holdings to pay) its operating expenses
incurred in the ordinary course of business and other corporate overhead costs and expenses
(including administrative, legal, accounting and similar expenses provided by third
parties), which are reasonable and customary and incurred in the ordinary course of
business, in an aggregate amount not to exceed $5,655,000 in any fiscal year plus any
reasonable and customary indemnification claims made by directors
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or officers of Holdings (or any parent thereof) attributable to the ownership or operations
of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay franchise taxes and other
fees, taxes and expenses required to maintain its (or any of its direct or indirect
parents’) corporate existence;
(iv) the proceeds of which shall be used by Holdings to make Restricted Payments
permitted by Section 7.06(g);
(v) to finance any Investment permitted to be made pursuant to Section 7.02; provided
that (A) such Restricted Payment shall be made substantially concurrently with the closing
of such Investment and (B) Holdings shall, immediately following the closing thereof, cause
(1) all property acquired (whether assets or Equity Interests) to be contributed to the
Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in
Section 7.04) of the Person formed or acquired into the Borrower or its Restricted
Subsidiaries in order to consummate such Permitted Acquisition, in each case, in accordance
with the requirements of Section 6.11; and
(vi) the proceeds of which shall be used by Holdings to pay (or to make Restricted
Payments to allow any direct or indirect parent thereof to pay) customary fees and expenses
(other than to Affiliates) related to any unsuccessful equity or debt offering permitted by
this Agreement;
(i) in addition to the foregoing Restricted Payments and so long as no Default
shall have occurred and be continuing or would result therefrom, the Borrower may make
additional Restricted Payments to Holdings the proceeds of which may be utilized by
Holdings to make additional Restricted Payments, in an aggregate amount, together with
the aggregate amount of (A) prepayments, redemptions, purchases, defeasance and other
payments in respect of Junior Financings made pursuant to Section 7.11(a)(ii)(D) and (B)
loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted
Payments permitted by this clause (i), not to exceed the aggregate amount of Net Cash
Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made
pursuant to Section 8.05 of the First Lien Credit Agreement) that are Not Otherwise
Applied;
(j) Holdings or the Borrower may make Restricted Payments with the proceeds of the
issuance of Indebtedness of Holdings[Reserved]; and
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(k) Restricted Payments made on or after the Closing Date to consummate the
Restructuring Transaction in an aggregate amount not to exceed $297,000,000.
SECTION 7.07. Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower and the Restricted
Subsidiaries on the Closing Date or any business reasonably related or ancillary thereto.
SECTION 7.08. Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate of Holdings whether or not in the ordinary course of business, other than (a)
transactions among Loan Parties or any Restricted Subsidiary or any entity that becomes a
Restricted Subsidiary as a result of such transaction, (b) on terms substantially as favorable to
Holdings, the Borrower or such Restricted Subsidiary as would be obtainable by Holdings, the
Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a
Person other than an Affiliate, (c) the payment of fees and expenses related to the First Lien
Original Closing Date Transaction, the Investment Transaction or the Restructuring
Transaction, (d) the issuance of Equity Interests to the management of Holdings or any of its
Subsidiaries in connection with the First Lien Original Closing Date Transaction, (e) the payment
of management and monitoring fees to the Sponsor in an aggregate amount in any fiscal year not to
exceed the amount permitted to be paid pursuant to the Sponsor Management Agreement as in effect on
the First Lien Original Closing Date and any Sponsor Termination Fees not to exceed the amount set
forth in the Sponsor Management Agreement as in effect on the First Lien Original Closing Date and
related indemnities and reasonable expenses, (f) equity issuances, repurchases, retirements or
other acquisitions or retirements of Equity Interests by Holdings permitted under Section 7.06, (g)
loans and other transactions by Holdings, the Borrower and the Restricted Subsidiaries to the
extent permitted under this Article VII, (h) employment and severance arrangements between
Holdings, the Borrower and the Restricted Subsidiaries and their respective officers and employees
in the ordinary course of business, (i) payments by Holdings (and any direct or indirect parent
thereof), the Borrower and the Restricted Subsidiaries pursuant to the tax sharing agreements among
Holdings (and any such parent thereof), the Borrower and the Restricted Subsidiaries on customary
terms to the extent attributable to the ownership or operation of the Borrower and the Restricted
Subsidiaries, (j) the payment of customary fees and reasonable out-of-pocket costs to, and
indemnities provided on behalf of, directors, officers and employees of Holdings, the Borrower and
the Restricted Subsidiaries in the ordinary course of business to the extent attributable to the
ownership or operation of Holdings, the Borrower and the Restricted Subsidiaries, (k) transactions
pursuant to permitted agreements in existence on the Closing Date and set forth on Schedule 7.08 or
any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material
respect, (l) dividends, redemptions and repurchases permitted under Section 7.06, (m) customary
payments by Holdings, the Borrower and any Restricted Subsidiaries to the Sponsor made for any
financial advisory, financing, underwriting or placement services or in respect of other investment
banking activities (including in connection with acquisitions or divestitures), which payments are
approved by the majority of the members of the board of directors or a majority of the disinterested
members of the board of directors of Holdings in good faith, and (n) the consummation of the
Investment Transaction and the Restructuring Transaction.
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SECTION 7.11. Prepayments, Etc. of Indebtedness
(a) (i) Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled
maturity thereof in any manner or make any payment of interest in respect of, the Senior
Subordinated Notes, any subordinated Indebtedness incurred under Section 7.03(h) or any
other Indebtedness that is required to be subordinated to the Obligations pursuant to the
terms of the Loan Documents (collectively, “Junior Financing”) or (ii) make any payment in
violation of any subordination terms of any Junior Financing Documentation, except (A) the
refinancing thereof with the Net Cash Proceeds of any Indebtedness (to the extent such
Indebtedness constitutes a Permitted Refinancing and, if applicable, is permitted pursuant
to Section 7.03(h)), to the extent not required to prepay any Indebtedness pursuant to
Section 2.05(b), or of any Indebtedness of Holdings, (B) the conversion of any Junior
Financing to Equity Interests (other than Disqualified Equity Interests) of Holdings or any
of its direct or indirect parents, (C) the prepayment of Indebtedness of the Borrower or
any Restricted Subsidiary to the Borrower or any Restricted Subsidiary to the extent expressly permitted by the Collateral Documents, (D) the payment of regularly scheduled
interest in respect of Junior Financings, and (E) prepayments, redemptions, purchases,
defeasances and other payments in respect of Junior Financings prior to their scheduled
maturity in an aggregate amount, together with the aggregate amount of (1) Restricted
Payments made pursuant to Section 7.06(i) and (2) loans and advances to Holdings made
pursuant to Section 7.02(m), not to exceed the amount of Net Cash Proceeds of Permitted
Equity Issuances (other than Permitted Equity Issuances made pursuant to Section 8.05 of
the First Lien Credit Agreement that are Not Otherwise Applied).
(b) Amend, modify or change in any manner materially adverse to the interests of
the Lenders any term or condition of any Junior Financing Documentation without the
consent of the Administrative Agent.
SECTION 7.12. Equity Interests of the Borrower and Restricted Subsidiaries. Permit any
Domestic Subsidiary that is a Restricted Subsidiary to become a non-wholly owned Subsidiary, except
to the extent such Restricted Subsidiary continues to be a Guarantor or in connection with a sale
of all of such Restricted Subsidiary or the designation of an Unrestricted Subsidiary pursuant to
Section 6.14.
SECTION 7.13. Holding Company; Foreign Subsidiaries. In the case of Holdings,
Intermediate Parent and TDS Intermediate Parent, conduct, transact or otherwise engage in any
business or operations other than those incidental to (i) its ownership of the Equity Interests of
the Borrower and the Foreign Holdco or other Foreign Subsidiaries, (ii) the maintenance of its
legal existence, (iii) the performance of the Loan Documents, the Purchase Agreement and the other
agreements contemplated by the Purchase Agreement, (iv) the performance of the First Lien Debt Documents to which it is a
party, (v) any public offering of its common stock or any other issuance of its Equity Interests
not prohibited by this Article VII
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(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan
which has resulted or could reasonably be expected to result in liability of any Loan Party
under Title IV of ERISA in an aggregate amount which could reasonably be expected to result in a
Material Adverse Effect, (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount which could reasonably be expected to result in a Material Adverse Effect, or (iii) a
termination, withdrawal or noncompliance with applicable law or plan terms or termination,
withdrawal or other event similar to an ERISA Event occurs with respect to a Foreign Plan that
could reasonably be expected to result in a Material Adverse Effect; or
(j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly permitted hereunder
or thereunder (including as a result of a transaction permitted under Section 7.04 or 7.05) or
as a result of acts or omissions by the Administrative Agent or any Lender or the satisfaction
in full of all the Obligations, ceases to be in full force and effect; or any Loan Party
contests in writing the validity or enforceability of any provision of any Loan Document; or any
Loan Party denies in writing that it has any or further liability or obligation under any Loan
Document (other than as a result of repayment in full of the Obligations), or purports in
writing to revoke or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Collateral Documents. (i) Any Collateral Document after delivery thereof pursuant to
the terms of this Agreement shall for any reason (other than pursuant to the terms thereof,
including as a result of a transaction permitted under Section 7.04 or 7.05) cease to create a
valid and perfected lien, with the priority required by the Collateral Documents (or other
security purported to be created on the applicable Collateral), on and security interest in any
material portion of the Collateral purported to be covered thereby, subject to Liens permitted
under Section 7.01, except to the extent that any such loss of perfection or priority results
from the failure of the Administrative Agent or the Collateral Agent to maintain possession of
certificates actually delivered to it representing securities pledged under the Collateral
Documents or to file Uniform Commercial Code continuation statements and except as to Collateral
consisting of real property to the extent that such losses are covered by a lender’s title
insurance policy and such insurer has not denied or failed to acknowledge coverage, (ii) any of
the Equity Interests of the Borrower ceasing to be pledged pursuant to the Security Agreement
free of Liens other than Liens created by the Security Agreement, Liens created by the First
Lien Collateral Documents, Liens created by the collateral documents governing any Permitted
Refinancing Indebtedness, or any nonconsensual Liens arising solely by operation of Law or
(iii)
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appropriate, made its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties and their
respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the
transactions contemplated hereby, and made its own decision to enter into this Agreement and to
extend credit to the Borrower and the other Loan Parties hereunder. Each Lender also represents
that it will, independently and without reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition and creditworthiness
of the Borrower and the other Loan Parties. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by any Agent herein, such Agent shall not have
any duty or responsibility to provide any Lender with any credit or other information concerning
the business, prospects, operations, property, financial and other condition or creditworthiness of
any of the Loan Parties or any of their respective Affiliates which may come into the possession of
any Agent-Related Person.
SECTION 9.07. Indemnification of Agents. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the
extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any
Loan Party to do so), pro rata, and hold harmless each Agent-Related Person from and against any
and all Indemnified Liabilities incurred by it; provided that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting from
such Agent-Related Person’s own gross negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction; provided that no action taken in accordance with the
directions of the Required Lenders (or such other number or percentage of the Lenders as shall be
required by the Loan Documents) shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section 9.07. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such
investigation, litigation or proceeding is brought by any Lender or any other Person. Without
limitation of the foregoing, each Lender shall reimburse the Administrative Agent or the Collateral
Agent, as applicable, upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent or the Collateral Agent, as
applicable, in connection with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent that the
Administrative Agent or the Collateral Agent is not reimbursed for such expenses by or on behalf of
the Borrower, provided that such reimbursement by the Lenders shall not affect the Borrower’s
continuing reimbursement obligations with respect thereto. The undertaking in this Section 9.07
shall survive termination of the payment of all other Obligations and the resignation of the Administrative
Agent or the Collateral Agent.
SECTION 9.08. Agents in their Individual Capacities. Credit Suisse,
[______]Wells Fargo and their respectiveits Affiliates may make loans to,
issue letters of credit
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for the account of, accept deposits from, acquire Equity Interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with each of the Loan
Parties and their respective Affiliates as though Credit Suisse or [______] wereWells Fargo was not
the Administrative Agent or Collateral Agent hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Credit Suisse, [______] or
their respective Wells Fargo or its Affiliates may receive information regarding any Loan Party or
its Affiliates (including information that may be subject to confidentiality obligations in favor
of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent or the
Collateral Agent shall be under no obligation to provide such information to them. With respect to
its Loans, if any, Credit Suisse and [______]Wells Fargo shall have the same rights and powers
under this Agreement as any other Lender and may exercise such rights and powers as though it were
not the Administrative Agent or Collateral Agent, as applicable, and the terms “Lender” and
“Lenders” include Credit Suisse or [______]Wells Fargo in their respective
individual capacities.
SECTION 9.09. Successor Agents. The Administrative Agent or the Collateral Agent may
resign as the Administrative Agent or the Collateral Agent, as applicable, upon thirty (30) days’
notice to the Lenders and the Borrower. If the Administrative Agent or the Collateral Agent resigns
under this Agreement, the Required Lenders shall appoint from among the Lenders a successor agent
for the Lenders, which successor agent shall be consented to by the Borrower at all times other
than during the existence of an Event of Default under Section 8.01(f) or (g) (which consent of the
Borrower shall not be unreasonably withheld or delayed). If no successor agent is appointed prior
to the effective date of the resignation of the Administrative Agent or the Collateral Agent, the
Administrative Agent or the Collateral Agent, as applicable, may appoint, after consulting with the
Lenders and the Borrower, a successor agent from among the Lenders. Upon the acceptance of its
appointment as successor agent hereunder, the Person acting as such successor agent shall succeed
to all the rights, powers and duties of the retiring Administrative Agent or the Collateral Agent
and the term “Administrative Agent” or “Collateral Agent”, as applicable, shall mean such successor
administrative agent, collateral agent and/or supplemental agent, as the case may be, and the
retiring Administrative Agent’s or Collateral Agent’s appointment, powers and duties as the
Administrative Agent or Collateral Agent shall be terminated. After the retiring Administrative
Agent’s or Collateral Agent’s resignation hereunder as the Administrative Agent or the Collateral
Agent, as applicable, the provisions of this Article IX and Sections 10.04 and 10.05 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was the Administrative
Agent or Collateral Agent under this Agreement. If no successor agent has accepted appointment as
the Administrative Agent or Collateral Agent by the date which is thirty (30) days following the
retiring Administrative Agent’s or Collateral Agent’s notice of resignation, the retiring
Administrative Agent’s or Collateral Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative Agent or the
Collateral Agent hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. Upon the acceptance of any appointment as the Administrative Agent or
the Collateral Agent hereunder by a successor and upon the execution and filing or recording of such financing statements, or
amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments
or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to
(a) continue the perfection of the Liens granted or purported to be
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SECTION 9.11. Collateral and Guaranty Matters. The Lenders irrevocably agree that:
(a) any Lien on any property granted to or held by the Administrative Agent or the
Collateral Agent under any Loan Document shall be automatically released (i) upon
payment in full of all Obligations (other than contingent indemnification obligations
not yet accrued and payable), (ii) at the time the property subject to such Lien is
transferred or to be transferred as part of or in connection with any transfer permitted
hereunder or under any other Loan Document to any Person other than Holdings, the
Borrower or any of its Domestic Subsidiaries that are Restricted Subsidiaries, (iii) if
such Lien was required solely as a result of the application of clause (ki) or (j) of
the definition of Collateral and Guarantee Requirement and such Lien is no longer
required to be provided pursuant to clause (k)) of the definition of Collateral and
Guarantee Requirement, (iv) subject to Section 10.01, if the release of such Lien is
approved, authorized or ratified in writing by the Required Lenders, or (v) if the
property subject to such Lien is owned by a Guarantor, upon release of such Guarantor
from its obligations under its Guaranty pursuant to clause (c) below;
(b) to release or subordinate any Lien on any property granted to or held by the
Administrative Agent or the Collateral Agent under any Loan Document to the holder of
any Lien on such property that is permitted by Section 7.01(i); and
(c) any Guarantor shall be automatically released from its obligations under the
Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a
transaction or designation permitted hereunder or if such Guarantor was required to
provide a Guaranty solely as a result of the application of clause (ki) or (j) of the
definition of Collateral and Guarantee Requirement and is no longer required to provide
a Guaranty pursuant to such clause (k) of the definition of Collateral and Guarantee
Requirement; provided that no such release shall occur if such Guarantor continues to be
a guarantor in respect of the First Lien Credit Agreement, High Yield Notes or any
Junior Financing.
Upon request by the Administrative Agent or the Collateral Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent’s or the Collateral Agent’s authority to
release or subordinate its interest in particular types or items of property, or to release any
Guarantor from its obligations under the Guaranty pursuant to this Section 9.11. In each case as
specified in this Section 9.11, the Administrative Agent or the Collateral Agent will (and each
Lender irrevocably authorizes the Administrative Agent or the Collateral Agent to), at the
Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan
Party may reasonably request to evidence the release or subordination of such item of Collateral
from the assignment and security interest granted under the Collateral Documents, or
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to any amendment that by its terms adversely affects the rights of such Class in respect of
payments hereunder in a manner different than such amendment affects other Classes.
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with
the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add
one or more additional credit facilities to this Agreement and to permit the extensions of credit
from time to time outstanding thereunder and the accrued interest and fees in respect thereof to
share ratably in the benefits of this Agreement and the other Loan Documents with the Loans and the
accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding
such credit facilities in any determination of the Required Lenders.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, the Borrower and the Lenders providing the relevant
Replacement Loans (as defined below) to permit the refinancing of all outstanding Loans of any
Class (“Refinanced Loans”) with a replacement term loan tranche (“Replacement Loans”) hereunder and
the Administrative Agent may effect such amendments to the Intercreditor Agreement (or enter into a
replacement thereof, which such replacement shall continue to apply to the Liens securing the
obligations under the First Lien Debt Documents then outstanding) and the other Loan Documents as
may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the
Borrower, to effect such Replacement Loans; provided that (a) the aggregate principal amount of
such Replacement Loans shall not exceed the aggregate principal amount of such Refinanced Loans,
(b) the Applicable Rate for such Replacement Loans (or similar interest rate spread applicable to
such Replacement Loans) shall not be higher than the Applicable Rate for such Refinanced Loans (or
similar interest rate spread applicable to such Refinanced Loans) immediately prior to such
refinancing, (c) the Weighted Average Life to Maturity of such Replacement Loans shall not be
shorter than the Weighted Average Life to Maturity of such Refinanced Loans at the time of such
refinancing (except to the extent of nominal amortization for periods where amortization has been
eliminated as a result of prepayment of the applicable Loans) and (d) all other terms applicable to
such Replacement Loans shall be substantially identical to, or less favorable to the Lenders
providing such Replacement Loans than, those applicable to such Refinanced Loans, except to the
extent necessary to provide for covenants and other terms applicable to any period after the latest
final maturity of the Loans in effect immediately prior to such refinancing.
Notwithstanding the foregoing, no consent of the Borrower or any Loan Party shall be required
for amendments or waivers to the Intercreditor Agreement except to the extent expressly set forth
in the Intercreditor Agreement.
Notwithstanding anything to the contrary contained in Section 10.01, guarantees, collateral
security documents and related documents executed by Subsidiaries in connection with this Agreement
may be in a form reasonably determined by the
Administrative Agent and may be, together with this Agreement, amended and waived with the
consent of the Administrative
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Agent at the request of the Borrower without the need to obtain the consent of any other Lender if
such amendment or waiver is delivered in order (i) to comply with local Law or advice of local
counsel, (ii) to cure ambiguities or defects or (iii) to cause such guarantee, collateral security
document or other document to be consistent with this Agreement and the other Loan Documents.
SECTION 10.02. Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder or under any other Loan Document shall be in
writing (including by facsimile transmission). All such written notices shall be
mailed, faxed or delivered to the applicable address, facsimile number or electronic
mail address, and all notices and other communications expressly permitted hereunder to
be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower or the Administrative Agent, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on Schedule 10.02 or
to such other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in itsto the Administrative QuestionnaireAgent on the Closing
Date or to such other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the Borrower and the
Administrative Agent.
All such notices and other communications shall be deemed to be given or made upon the earlier to
occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail,
four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail
(which form of delivery is subject to the provisions of Section 10.02(c)), when delivered; provided
that notices and other communications to the Administrative Agent pursuant to Article 2 shall not
be effective until actually received by such Person. In no event shall a voice mail message be
effective as a notice, communication or confirmation hereunder.
The Borrower hereby agrees, unless directed otherwise by the Administrative Agent or unless
the electronic mail address referred to below has not been provided by the Administrative Agent to
the Borrower, that it will, or will cause its Subsidiaries to, provide to the Administrative Agent
all information, documents and other materials that it is obligated to furnish to the
Administrative Agent pursuant to the Loan Documents or to the Lenders under Article VI, including
all notices, requests, financial statements, financial and other reports, certificates and other
information materials, but excluding any such communication that (a) is or
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WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE
PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE
COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE
AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE
PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE
ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND,
WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR
OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF
COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH
PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
PRIMARILY FROM SUCH PERSON’S GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT.
The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its provided e-mail address set forth above shall constitute
effective delivery of the Communications to the Administrative Agent for purposes of the
Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next
sentence) specifying that the Communications have been posted to the Platform shall
constitute effective delivery of the Communications to such Lender for purposes of the
Loan Documents. Each Lender agrees to notify the Administrative Agent in writing
(including by electronic communication) from time to time of such Lender’s e-mail
address to which the foregoing notice may be sent by electronic transmission and that
the foregoing notice may be sent to such e-mail address.
Nothing herein shall prejudice the right of the Administrative Agent or any Lender to
give any notice or other communication pursuant to any Loan Document in any other manner
specified in such Loan Document.
(b)
Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force and effect as manually
signed originals and shall be binding on all Loan Parties, the Agents and the Lenders.
(c)
Reliance by Agents and Lenders. The Administrative Agent and the Lenders shall be
entitled to rely and act upon any notices (including telephonic Committed Loan Notices)
purportedly given by or on behalf of the Borrower even if (i)
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such notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify each Agent-Related Person and each Lender from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower in the absence of gross
negligence or willful misconduct. All telephonic notices to the Administrative Agent may
be recorded by the Administrative Agent, and each of the parties hereto hereby consents
to such recording.
SECTION 10.03. No Waiver; Cumulative Remedies. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and provided under each
other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by Law.
SECTION 10.04. Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation, syndication and execution of this Agreement and the
other Loan Documents, and any amendment, waiver, consent or other modification of the provisions
hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and thereby, including all
Attorney Costs of local and foreign counsel, and (b) to pay or reimburse the Administrative Agent
and each Lender for all out-of-pocket costs and expenses incurred in connection with the
enforcement of any rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any legal proceeding, including any proceeding under
any Debtor Relief Law, and including all Attorney Costs of counsel to the Administrative Agent).
The foregoing costs and expenses shall include all reasonable search, filing, recording and title
insurance charges and fees and taxes related thereto, and other (reasonable, in the case of Section
10.04(a)) out-of-pocket expenses incurred by any Agent. The agreements in this Section 10.04 shall
survive the repayment of all other Obligations. All amounts due under this Section 10.04 shall be
paid within ten (10) Business Days of receipt by the Borrower of an invoice relating thereto
setting forth such expenses in reasonable detail. If any Loan Party fails to pay when due any
costs, expenses or other amounts payable by it hereunder or under any other Loan Document, such
amount may, but is not required to, be paid on behalf of such Loan Party by the Administrative
Agent in its sole discretion.
SECTION 10.05. Indemnification by the Borrower. Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify and hold harmless each
Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees,
counsel, agents, trustees, investment advisors and
attorneys-in-fact (collectively, the “Indemnitees”) from and against any and all liabilities,
obligations, losses,
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damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising
out of or in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of the transactions
contemplated thereby, (b) any Loan , (c) any actual or alleged presence or release of Hazardous
Materials on or from any property currently or formerly owned or operated by the Borrower, any
Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the
Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation for, or defense of
any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether
any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”),
in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of
the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements resulted from the gross negligence or willful
misconduct of such Indemnitee or of any affiliate, director, officer, employee, counsel, agent or
attorney-in-fact of such Indemnitee. No Indemnitee shall be liable for any damages arising from the
use by others of any information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall any Indemnitee or any
Loan Party have any liability for any special, punitive, indirect or consequential damages relating
to this Agreement or any other Loan Document or arising out of its activities in connection
herewith or therewith. In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its directors, stockholders
or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a
party thereto and whether or not any of the transactions contemplated hereunder or under any of the
other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within
ten (10) Business Days after demand therefor; provided,
however, that such Indemnitee shall
promptly refund such amount to the extent that there is a final judicial or arbitral determination
that such Indemnitee was not entitled to indemnification or contribution rights with respect to
such payment pursuant to the express terms of this
Section 10.05;
provided, further, that the
Administrative Agent is authorized to deduct and retain sufficient amounts from any payment
received from the Borrower to reimburse the Administrative Agent for any such costs and expenses
and any amounts owing to the Administrative Agent in accordance with Section 2.09 prior to the
distribution of any amounts to Lenders.
. The agreements in this Section 10.05 shall survive the resignation of the Administrative
Agent, the replacement of any Lender, the repayment, satisfaction or discharge of all the other
Obligations.
SECTION 10.06. Payments Set Aside. To the extent that any payment by or on behalf of
the Borrower is made to any Agent or any Lender, or any Agent or any Lender
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(B) the Administrative Agent; provided that no consent of the Administrative Agent shall
be
required for an assignment of all or any portion of a Loan to another Lender, an Affiliate of a
Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund or an assignment of the entire remaining amount of the assigning Lender’s Loans of any Class,
the amount of the Loans of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $1,000,000 unless each of the Borrower and the
Administrative Agent otherwise consents, provided that (1) no such consent of the Borrower shall be
required (x) during the primary syndication of the Loans to the Persons identified to the Borrower
by the Administrative Agent prior to the Closing Date or (y) if an Event of Default under Section
8.01(a), (f) or (g) has occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its Affiliates or Approved Funds, if any; provided, further, that the
Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by
written notice to the Administrative Agent within ten (10) Business Days after having received
notice thereof;
(B) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that
only one such fee shall be payable in the event of simultaneous assignments from any Lender or its
Approved Funds to one or more other Approved Funds of such Lender; and
(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an
any applicable tax form and any other information reasonably requested by the Administrative
QuestionnaireAgent.
(iii) Notwithstanding anything herein to the contrary, (x) (A) Holdings may assign the Tranche
A Term Loans to Travelport Guarantor in order to consummate the RestructuringInvestment
Transaction, (B) Travelport Guarantor may assign the Tranche A Term Loans pursuant to the terms of
the Escrow Agreement and (C) Holdings may assign the Tranche B Term Loans to Travelport Holdings in
order to consummate the Exchange (as defined in the PIK Credit Agreement), in each case, without
the consent of any Person party hereto and (y) prior to the Settlement Date (as defined in the PIK
Credit Agreement) Travelport Guarantor shall not assign the Tranche A Term Loans other than in
accordance with the Escrow Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
| TRAVELPORT LLC, as the Borrower | ||||||
By: |
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| Title: | ||||||
| TRAVELPORT LIMITED, as Holdings | ||||||
By: |
||||||
| Title: | ||||||
| WALTONVILLE LIMITED, as Intermediate Parent | ||||||
By: |
||||||
| Title: | ||||||
| TDS INVESTOR (LUXEMBOURG) S.A.R.L., as TDS Intermediate Parent |
||||||
By: |
||||||
| Title: | ||||||
By: |
||||||
| Title: | ||||||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent
By: |
||||||
| Title: |
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| TRAVELPORT LIMITED, as Lender | ||||||||
By: |
||||||||
| Title: | ||||||||
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