UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) May 28, 2015

 

 

EXPEDIA, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   000-51447   20-2705720

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

333 108 th Avenue NE

Bellevue, Washington 98004

(Address of principal executive offices) (Zip code)

(425) 679-7200

Registrant’s telephone number, including area code

Not Applicable

(Former name or former address if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 1.01. Entry into a Material Definitive Agreement.

On May 28, 2015, Expedia, Inc., a Delaware corporation (the “Company”) entered into an Underwriting Agreement (the “Underwriting Agreement”) with BNP Paribas, Goldman, Sachs & Co. and J.P. Morgan Securities plc and the additional underwriters named in Schedule I thereto (the “Underwriters”), and the subsidiaries of the Company party thereto (the “subsidiary guarantors”) pursuant to which the Underwriters agreed to purchase from the Company €650,000,000 million aggregate principal amount of 2.500% Senior Notes due 2022 (the “Notes”). The Underwriting Agreement contains customary representations, warranties and covenants of the Company, conditions to closing, indemnification obligations of the Company and the Underwriters, and termination and other customary provisions. The Notes were offered pursuant to the Company’s registration statement on Form S-3, File No. 333-197974, dated August 8, 2014, as amended by Post-Effective Amendment No. 1 on April 29, 2015. On June 3, 2015, the Company completed the sale of the Notes.

The net proceeds from the sale of the Notes, after underwriting discounts and commissions and estimated offering expenses, were approximately $700.2 million, based on the closing May 26, 2015 euro/U.S. dollar exchange rate of €1 = $1.09 as published by Bloomberg L.P.. The Company intends to use the net proceeds from the sale of the Notes to fund a portion of the cash consideration payable in connection with the Company’s proposed acquisition of Orbitz Worldwide, Inc. and for other general corporate purposes, including, without limitation, to fund other potential future acquisitions by the Company or any of its subsidiaries. General corporate purposes may also include, without limitation, dividends, stock repurchases, repayment of debt, investments, additions to working capital, capital expenditures and advances to or investments in the Company’s subsidiaries.

The Notes were issued under an indenture dated as of August 18, 2014 (the “Base Indenture”), as supplemented by the Fourth Supplemental Indenture dated as of June 3, 2015 (the “Supplemental Indenture,” and the Base Indenture as supplemented by the Supplemental Indenture, the “Indenture”), among the Company, the subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee. The Notes are unconditionally guaranteed by the subsidiary guarantors, which include each domestic subsidiary of the Company that is a borrower under or guarantees the obligations under the Company’s existing credit agreement. The Notes are the Company’s senior unsecured obligations and will rank equally in right of payment with all of the Company’s existing and future unsecured and unsubordinated obligations. So long as the guarantees are in effect, each subsidiary guarantor’s guarantee will be the senior unsecured obligation of such subsidiary guarantor and will rank equally in right of payment with all of such subsidiary guarantor’s existing and future unsecured and unsubordinated obligations. The Notes pay interest annually in arrears on June 3 of each year, beginning on June 3, 2016, at a rate of 2.500% per year. The notes will mature on June 3, 2022.

The Company may redeem the Notes, in whole or in part, at any time or from time to time, prior to March 3, 2022, at a specified make-whole premium and, on or after March 3, 2022, at par. In addition, the Company may redeem the notes in whole but not in part, at any time at the Company’s option, at par in the event of certain developments affecting U.S. taxation. Upon the occurrence of a change of control triggering event (as defined in the Indenture), each holder of Notes will have the right to require the Company to repurchase such holder’s notes, in whole or in part, at a purchase price in cash equal to 101% of the principal amount thereof, plus any accrued and unpaid interest to the date of purchase.


The Indenture provides for Events of Default that may, in certain circumstances, lead to the outstanding principal and unpaid interest of the Notes becoming immediately due and payable.

The Indenture contains covenants limiting the Company’s ability and the Company’s subsidiaries’ ability to create certain liens, enter into sale and lease-back transactions, and consolidate or merge with, or convey, transfer or lease all or substantially all the Company’s assets to, another person. However, each of these covenants is subject to certain exceptions.

The material terms of the offer and sale of the Notes are described in the Company’s final prospectus supplement, as filed with the SEC on June 1, 2015, pursuant to Rule 424(b)(5) under the Securities Act, which supplements the Company’s prospectus, as filed with the SEC on August 8, 2014, and contained in the registration statement referenced above.

The foregoing descriptions of the Underwriting Agreement and the Indenture are qualified in their entirety by reference to the Underwriting Agreement and the Indenture, which are included as exhibits hereto and are incorporated herein by reference.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information in Item 1.01 above is incorporated by reference into this Item 2.03.

 

Item 8.01. Other Events.

On May 28, 2015, the Company issued a press release announcing the commencement of the offering of the Notes. A copy of the press release is attached as Exhibit 99.1 and incorporated herein by reference.

On May 28, 2015, the Company issued a press release announcing the pricing of the Notes. A copy of the press release is attached as Exhibit 99.2 and incorporated herein by reference.


Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit Number

  

Description

  1.1    Underwriting Agreement, dated as of May 28, 2015, by and among Expedia, Inc., the guarantors party thereto, and BNP Paribas, Goldman, Sachs & Co. and J.P. Morgan Securities plc, as representatives of the several underwriters*
  4.1    Indenture, dated as of August 18, 2014, among Expedia, Inc., the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A.†
  4.2    Fourth Supplemental Indenture, dated as of June 3, 2015, among Expedia, Inc., the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A.*
  4.3    Form of Note (included as Exhibit A to the Supplemental Indenture in Exhibit 4.2)
  5.1    Legal Opinion of Wachtell, Lipton, Rosen & Katz*
  5.2    Legal Opinion of Holland & Hart, LLP*
  5.3    Legal Opinion of Jones Day*
  5.4    Legal Opinion of Morris, Nichols, Arsht & Tunnell LLP*
  5.5    Legal Opinion of Perkins Coie LLP*
23.1    Consent of Wachtell, Lipton, Rosen & Katz (contained in Exhibit 5.1)
23.2    Consent of Holland & Hart, LLP (contained in Exhibit 5.2)
23.3    Consent of Jones Day (contained in Exhibit 5.3)
23.4    Consent of Morris, Nichols, Arsht & Tunnell LLP (contained in Exhibit 5.4)
23.5    Consent of Perkins Coie LLP (contained in Exhibit 5.5)
99.1    Press Release, dated May 28, 2015*
99.2    Press Release, dated May 28, 2015*

 

* Filed herein.
Filed previously.


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

EXPEDIA, INC.
By:

/s/ Robert J. Dzielak

Robert J. Dzielak
Executive Vice President, General Counsel and Secretary

Dated: June 3, 2015.


EXHIBIT INDEX

 

Exhibit Number

  

Description

  1.1    Underwriting Agreement, dated as of May 28, 2015, by and among Expedia, Inc., the guarantors party thereto, and BNP Paribas, Goldman, Sachs & Co. and J.P. Morgan Securities plc, as representatives of the several underwriters*
  4.1    Indenture, dated as of August 18, 2014, among Expedia, Inc., the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A.†
  4.2    Fourth Supplemental Indenture, dated as of June 3, 2015, among Expedia, Inc., the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A.*
  4.3    Form of Note (included as Exhibit A to the Supplemental Indenture in Exhibit 4.2)
  5.1    Legal Opinion of Wachtell, Lipton, Rosen & Katz*
  5.2    Legal Opinion of Holland & Hart, LLP*
  5.3    Legal Opinion of Jones Day*
  5.4    Legal Opinion of Morris, Nichols, Arsht & Tunnell LLP*
  5.5    Legal Opinion of Perkins Coie LLP*
23.1    Consent of Wachtell, Lipton, Rosen & Katz (contained in Exhibit 5.1)
23.2    Consent of Holland & Hart, LLP (contained in Exhibit 5.2)
23.3    Consent of Jones Day (contained in Exhibit 5.3)
23.4    Consent of Morris, Nichols, Arsht & Tunnell LLP (contained in Exhibit 5.4)
23.5    Consent of Perkins Coie LLP (contained in Exhibit 5.5)
99.1    Press Release, dated May 28, 2015*
99.2    Press Release, dated May 28, 2015*

 

* Filed herein.
Filed previously.

Exhibit 1.1

€650,000,000

Expedia, Inc.

2.500% Senior Notes due 2022

Underwriting Agreement

May 28, 2015

BNP Paribas

Goldman, Sachs & Co.

J.P. Morgan Securities plc

    As Representatives of the

    several Underwriters listed

    in Schedule 1 hereto

c/o BNP Paribas

10 Harewood Avenue

London NW1 6AA

United Kingdom

c/o Goldman, Sachs & Co.

200 West Street

New York, New York 10282

and

c/o J.P. Morgan Securities plc

25 Bank Street

Canary Wharf

London E14 5JP

United Kingdom

Ladies and Gentlemen:

Expedia, Inc., a Delaware corporation (the “ Company ”), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the “ Underwriters ”), for whom you are acting as representatives (the “ Representatives ”), €650,000,000 principal amount of its 2.500% Senior Notes due 2022 (the “ Securities ”). The Securities will be issued pursuant to an Indenture, dated as of August 18, 2014, as supplemented by the Fourth Supplemental Indenture to be dated as of June 3, 2015 (the “ Indenture ”) among the Company, the guarantors listed on Schedule 2 hereto (the “ Guarantors ”), and The Bank of New York Mellon Trust Company, N.A., as trustee (the “ Trustee ”), and will be


guaranteed on a senior basis by each of the Guarantors (the “ Guarantees ”). In connection with the issuance of the Securities, the Company will enter into a Paying Agency Agreement to be dated as of June 3, 2015 (the “ Paying Agency Agreement ”), between the Company and The Bank of New York Mellon, London Branch, as paying agent.

The Company and the Guarantors hereby confirm their agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:

1. Registration Statement . The Company has prepared and filed with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “ Securities Act ”), a registration statement on Form S-3 (File No. 333-197974), including a prospectus, relating to the Securities. Such registration statement, as amended at the time it becomes effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“ Rule 430 Information ”), is referred to herein as the “ Registration Statement ”; and as used herein, the term “ Preliminary Prospectus ” means each prospectus included in such registration statement (and any amendments thereto) before it becomes effective, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term “ Prospectus ” means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “ Rule 462 Registration Statement ”), then any reference herein to the term “ Registration Statement ” shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be and any reference to “ amend ”, “ amendment ” or “ supplement ” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “ Exchange Act ”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.

At or prior to 3:10 p.m. (London time) on the date hereof, the time when sales of the Securities were first made (the “ Time of Sale ”), the Company and the Guarantors had prepared the following information (collectively, the “ Time of Sale Information ”): a Preliminary Prospectus dated May 28, 2015, and each “ free-writing prospectus ” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex B hereto.

 

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2. Purchase of the Securities by the Underwriters .

(a) The Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to 99.125% of the principal amount thereof plus accrued interest, if any, from June 3, 2015 to the Closing Date (as defined below). The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.

(b) The Company and the Guarantors understand that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale Information. The Company and the Guarantors acknowledge and agree that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.

(c) Payment for and delivery of the Securities will be made at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, NY 10019 at 10:00 A.M., London time, on June 3, 2015, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “ Closing Date ”.

(d) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery in book-entry form through a common depositary for Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking, société anonyme (“ Clearstream ”), for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the “ Global Note ”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be made available for inspection by the Representatives not later than the business day prior to the Closing Date.

(e) The Company and the Guarantors acknowledge and agree that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the

 

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transactions contemplated hereby, and neither the Representatives nor any other Underwriter shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representatives or any Underwriter of the Company, the Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter and shall not be on behalf of the Company or the Guarantors or any other person.

3. Representations and Warranties of the Company and the Guarantors . The Company and the Guarantors jointly and severally represent and warrant to each Underwriter that:

(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus.

(b) Time of Sale Information . The Time of Sale Information, at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom.

(c) Issuer Free Writing Prospectus. The Company and the Guarantors (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “ written communication ” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company and the Guarantors or their agents and representatives (other than a communication referred to in clauses (i) (ii) and (iii) below) an “ Issuer Free Writing Prospectus ”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus,

 

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(iii) the Prospectus, (iv) the documents listed on Annex B hereto which constitute part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not at the Time of Sale, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.

(d) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “ Trust Indenture Act ”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will comply in all material respects with the Securities Act and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement or the Prospectus or any amendment or supplement thereto.

(e) Incorporated Documents. The documents incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information,

 

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when they were filed with the Commission conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Information, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(f) Financial Statements. The consolidated financial statements and the related notes thereto included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Company and its subsidiaries (as defined in Section 14 hereof) as of the dates indicated and the consolidated results of their operations and the changes in their consolidated cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis in all material respects throughout the periods covered thereby (except as noted therein), and the supporting schedules, if any, included or incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information present fairly in all material respects the information required to be stated therein; and the other financial information included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of the Company and its subsidiaries and presents fairly in all material respects the information shown thereby. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information fairly presents in all material respects the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.

(g) No Material Adverse Change. Since the date of the most recent consolidated financial statements of the Company included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus, (i) there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company or any Guarantor on any class of capital stock (other than regular cash dividends and stock repurchases consistent with prior practice), or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, financial position or results of operations of the Company and its subsidiaries taken as a whole; and (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries taken as a whole or

 

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incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole, except in each case as otherwise disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus.

(h) Organization and Good Standing. The Company and each of the Guarantors have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so duly organized, validly existing in good standing or qualified or to have such power or authority would not, individually or in the aggregate, have a material adverse effect or a prospective material adverse effect on the business, properties, financial position or results of operations of the Company and its subsidiaries taken as a whole or on the performance by the Company or the Guarantors of their respective obligations under the Securities and the Guarantees (a “ Material Adverse Effect ”). The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Schedule 3 to this Agreement.

(i) Capitalization. The Company has the capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Capitalization” (except for any subsequent issuances of capital stock pursuant to the exercise of outstanding stock options or under existing employee benefit plans and stock repurchases consistent with prior practice) and all the outstanding shares of capital stock or other equity interests of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign subsidiary, for directors’ qualifying shares and except as otherwise described in the Registration Statement, the Time of Sale Information and the Prospectus) and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.

(j) Due Authorization. The Company and each of the Guarantors have full right, power and authority to execute and deliver this Agreement, the Securities, the Indenture (including each Guarantee set forth therein) and the Paying Agency Agreement (collectively, the “ Transaction Documents ”) and to perform their respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.

(k) The Indenture and Paying Agency Agreement. The Indenture has been duly authorized by the Company and each of the Guarantors and upon effectiveness of the Registration Statement was or will have been duly qualified under the Trust Indenture Act and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company and each of the Guarantors enforceable against the Company and each of

 

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the Guarantors in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “ Enforceability Exceptions ”). The Paying Agency Agreement has been duly authorized by the Company and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.

(l) The Securities and the Guarantees . The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each of the Guarantors and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.

(m) Underwriting Agreement . This Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors.

(n) Descriptions of the Transaction Documents . Each Transaction Document conforms in all material respects to the description thereof contained in each of the Registration Statement, the Time of Sale Information and the Prospectus.

(o) No Violation or Default. Neither the Company nor any of the Guarantors is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound or to which any of the property or assets of the Company or any Guarantor is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.

(p) No Conflicts. The execution, delivery and performance by the Company and each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities, the issuance of the Guarantees and compliance by the Company and each of the Guarantors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default

 

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under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Guarantor pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound or to which any of the property or assets of the Company or any Guarantor is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any Guarantor or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect.

(q) No Consents Required . No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company and each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities, the issuance of the Guarantees and compliance by the Company and each of the Guarantors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for (i) the registration of the Securities and the Guarantees under the Securities Act, (ii) the qualification of the Indenture under the Trust Indenture Act, (iii) such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Securities by the Underwriters, (iv) the approval of the Securities for listing on the New York Stock Exchange (the “ Exchange ”) and (v) such consents, approvals, authorizations, orders and registrations the failure of which to obtain would not adversely affect the Underwriters and would not result in a Material Adverse Effect.

(r) Legal Proceedings. Except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal, governmental or regulatory investigations, suits or proceedings (“ Actions ”) pending to which the Company or any of its subsidiaries is or may be a party or to which any property of the Company or any of its subsidiaries is or may be the subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; no Actions are, to the best knowledge of the Company and each of the Guarantors, threatened or contemplated by any governmental or regulatory authority or threatened by others; and (i) there are no current or pending Actions that are required under the Securities Act to be described in the Registration Statement or the Prospectus that are not so described in the Registration Statement, the Time of Sale Information and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement and the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale Information and the Prospectus.

(s) Independent Accountants. Ernst & Young LLP, who have certified certain financial statements of the Company and its subsidiaries, is an independent registered

 

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public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.

(t) Intellectual Property. The Company and the Guarantors own or possess adequate rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses, except where the failure to own or possess such rights would not reasonably be expected to have a Material Adverse Effect; and (i) except as would not reasonably be expected to have a Material Adverse Effect, the conduct of their respective businesses will not conflict in any respect with any such rights of others, and (ii) the Company, the Guarantors and the Company’s other subsidiaries have not received any notice of any material claim of infringement or conflict with any such rights of others.

(u) No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on the one hand, and the directors, officers, stockholders, or other affiliates of the Company or any of its subsidiaries, on the other, that is required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that is not so described in such documents and in the Time of Sale Information.

(v) Investment Company Act. Neither the Company , nor any of the Guarantors is, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, none of them will be an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “ Investment Company Act ”).

(w) Taxes. Except as otherwise disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus or as would not reasonably be expected to have a Material Adverse Effect, (i) the Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed all tax returns required to be paid or filed through the date hereof and (ii) there is no tax deficiency that has been, or could reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of their respective properties or assets.

(x) Licenses and Permits. The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in each of the Registration Statement,

 

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the Time of Sale Information and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course.

(y) Disclosure Controls . The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.

(z) Accounting Controls. The Company and its subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, including, without limitation, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the book value for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus, there are no material weaknesses in the Company’s internal controls.

(aa) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor any director or officer of the Company or any of its subsidiaries nor, to the knowledge of the Company and each of the Guarantors, any agent, employee, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in

 

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an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce policies and procedures reasonably designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.

(bb) Compliance with Money Laundering Laws . The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines issued, administered or enforced by any governmental or regulatory agency (collectively, the “ Anti-Money Laundering Laws ”) and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company or any of the Guarantors, threatened.

(cc) No Conflicts with Sanctions Laws. Neither the Company nor any of its subsidiaries, directors or officers, nor, to the knowledge of the Company or any of the Guarantors, any agent, employee or affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. Government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“ OFAC ”) or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), and, to the extent applicable, any Sanctions administered or enforced by the United Nations Security Council (“ UNSC ”), the European Union, Her Majesty’s Treasury (“ HMT ”), or other relevant sanctions authority (collectively, “ Sanctions ”), nor is the Company, any of its subsidiaries or any of the Guarantors located, or to the extent prohibited by applicable law, organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Cuba, Burma (Myanmar), Iran, North Korea, Sudan and Syria (each, a “ Sanctioned Country ”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country to the extent such activity is prohibited under any applicable Sanctions or (iii) in

 

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any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.

(dd) Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “ Solvent ” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company and its subsidiaries taken as a whole on a going concern basis is not less than the sum of their total existing debts and liabilities (including identified contingent liabilities) taken as a whole; (ii) the Company and its subsidiaries on a consolidated basis are able to pay their debts and other liabilities as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged.

(ee) No Broker’s Fees. Neither the Company nor any Guarantor is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.

(ff) No Registration Rights . No person has the right to require the Company or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.

(gg) No Stabilization. Neither the Company nor any of the Guarantors has taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.

(hh) Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included or incorporated by reference in any of the Registration Statement, the Time of Sale Information or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.

(ii) Sarbanes-Oxley Act . There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated in connection therewith (the “ Sarbanes-Oxley Act ”), including Section 402 related to loans and Sections 302 and 906 related to certifications.

 

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(jj) Status under the Securities Act . The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Securities.

(kk) U.K. Safe Harbors . Prior to the date hereof, neither the Company nor any of the Guarantors has (i) taken any action that is designed to or that has constituted or that could be expected to cause or result in stabilization or manipulation of the price of the Securities, (ii) issued any press release or other public announcement referring to the proposed offering of the Securities that does not adequately disclose the fact that stabilizing action may take place with respect to the Securities or (iii) taken any action or omitted to take any action that would result in the loss by the Underwriters of the ability to rely on any stabilization safe harbor provided by the Securities Act or by the UK Financial Services and Markets Act 2000.

4. Further Agreements of the Company and the Guarantors . The Company and the Guarantors jointly and severally covenant and agree with each Underwriter that:

(a) Required Filings. The Company and the Guarantors will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet referred to in Annex B hereto) to the extent required by Rule 433 under the Securities Act; and the Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in London prior to 10:00 A.M., London time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.

(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives, two signed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the

 

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Representatives may reasonably request. As used herein, the term “ Prospectus Delivery Period ” means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.

(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus with respect to this offering, whether before or after the time that the Registration Statement becomes effective the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.

(d) Notice to the Representatives. The Company will advise the Representatives promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (v) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vii) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (viii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.

 

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(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the statements in any of the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with law.

(f) Ongoing Compliance . If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented including such documents to be incorporated by reference will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law .

(g) Blue Sky Compliance. The Company and the Guarantors will reasonably cooperate with the Underwriters to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Securities; provided that neither the Company nor any of the Guarantors shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction, (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject or (iv) make any change to its charter or by-laws or similar organizational documents.

(h) Earning Statement. The Company will make generally available to its security holders and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.

 

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(i) Clear Market. During the period from the date hereof through and including the date that is one day after the Closing Date, the Company and each of the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or any of the Guarantors and having a tenor of more than one year.

(j) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Use of Proceeds”.

(k) No Stabilization. Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.

(l) Record Retention . The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.

(m) Ratings . The Company and the Guarantors will take all reasonable action necessary to enable Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and Moody’s Investors Service, Inc. to provide their respective ratings of the Securities.

(n) Filing Fees . The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act.

(o) Listing . The Company and the Guarantors shall use commercially reasonable efforts to apply to list the Securities on the Exchange. If the Securities are not approved to be listed on the Exchange, the Company and the Guarantors shall use commercially reasonable efforts to promptly list such Securities on either the Irish Stock Exchange (meaning either the Global Exchange Market of the Irish Stock Exchange or the Main Market thereof) or the Luxembourg Stock Exchange (Bourse de Luxembourg) (meaning either the Euro MTF of the Luxembourg Stock Exchange or the Main Market thereof); provided that such listing is no more burdensome on the Company or any of the Guarantors (including, without limitation, with respect to (1) the amount of any listing fees payable by the Company or any of the Guarantors and (2) governance requirements imposed upon the Company or any of the Guarantors as a result of such listing) than a listing of the Securities would have been on the Exchange.

5. Certain Agreements of the Underwriters . Each Underwriter hereby represents and agrees that:

 

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(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “ free writing prospectus ”, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex B or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “ Underwriter Free Writing Prospectus ”). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Annex B hereto without the consent of the Company.

(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).

6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company and each of the Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions:

(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of a Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.

(b) Representations and Warranties. The representations and warranties of the Company and the Guarantors contained herein shall be true and correct on the date hereof and on and as of the Closing Date.

(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined under Section 3(a)(62) of the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).

 

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(d) No Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist, which event or condition is not described in the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of which in the reasonable judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.

(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing Date a certificate of the Company’s chief financial officer (i) confirming that such officer has carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and, to the best knowledge of such officer, the representations set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.

(f) Comfort Letters. On the date of this Agreement and on the Closing Date, Ernst & Young LLP shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on the date of this Agreement and the Closing Date shall use “cut-off” dates no more than three business days prior to the date of this Agreement and the Closing Date, respectively.

(g) Opinion of In-House Counsel of the Company . The Executive Vice President, General Counsel and Secretary of the Company, shall have furnished to the Representatives, at the request of the Company a written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex A-1 hereto.

(h) Opinion of Counsel for the Company and the Guarantors . Wachtell, Lipton, Rosen & Katz, counsel for the Company and the Guarantors, shall have furnished to the Representatives, at the request of the Company and the Guarantors, their written opinion letter and negative assurance letter, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially to the effect set forth in Annex A-2 hereto.

 

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(i) Opinion of Nevada Counsel . Holland & Hart LLP, counsel for certain of the Guarantors, shall have furnished to the Representatives, at the request of such Guarantors, their written opinion letter, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially to the effect set forth in Annex A-3 hereto.

(j) Opinion of Texas Counsel . Jones Day, counsel for certain of the Guarantors, shall have furnished to the Representatives, at the request of such Guarantors, their written opinion letter, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially to the effect set forth in Annex A-4 hereto.

(k) Opinion of Washington Counsel . Perkins Coie LLP, counsel for certain of the Guarantors, shall have furnished to the Representatives, at the request of such Guarantor, their written opinion letter, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially to the effect set forth in Annex A-5 hereto.

(l) Opinion of Delaware Counsel . Morris, Nichols, Arsht & Tunnell LLP, counsel for certain of the Guarantors, shall have furnished to the Representatives, at the request of such Guarantors, their written opinion letter, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially to the effect set forth in Annex A-6 hereto.

(m) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion letter and 10b-5 statement of Cravath, Swaine & Moore LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.

(n) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees.

(o) Good Standing . The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and the Guarantors in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.

 

20


(p) Settlement . The Securities shall be eligible for clearance and settlement through Euroclear and Clearstream.

(q) Paying Agency Agreement . The Representatives shall have received an executed copy of the Paying Agency Agreement.

(r) Additional Documents. On or prior to the Closing Date, the Company and the Guarantors shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.

All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

7. Indemnification and Contribution .

(a) Indemnification of the Underwriters. The Company and each of the Guarantors jointly and severally agree to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein (it being understood and agreed that the only such information is that described as such in Section 7(b) hereof).

(b) Indemnification of the Company and the Guarantors. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, each of the Guarantors, their respective directors and officers who signed the Registration Statement and each person, if any, who controls the Company and the Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities (including, without limitation,

 

21


reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred) that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such information consists of the following paragraphs or sentences in the Preliminary Prospectus and the Prospectus: (i) the fifth and sixth sentences of paragraph entitled “Listing and Trading” under the heading “Summary”; (ii) the fifth and sixth sentences of the first paragraph under “Risk Factors–Your ability to transfer the notes may be limited by the absence of an active trading market and there is no assurance that any active trading market will develop for the notes.”; and (iii) the third sentence of the second paragraph, the third paragraph, the fifth and sixth sentences of the fourth paragraph, and the first and fifth sentences of the seventh paragraph, in each case under the heading “Underwriting”.

(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “ Indemnified Person ”) shall promptly notify the person against whom such indemnification may be sought (the “ Indemnifying Person ”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided , further , that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; or (iii) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all

 

22


Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Company and the Guarantors, their respective directors, their respective officers who signed the Registration Statement and any control persons of the Company and the Guarantors shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Person shall, without the written consent of the Indemnified Person (which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.

(d) Contribution. If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantors on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Company and the Guarantors on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or any Guarantor or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

23


(e) Limitation on Liability. The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Person in connection with investigating, defending or preparing any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.

(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.

8. Effectiveness of Agreement . This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.

9. Termination . This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company and the Guarantors, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the Exchange or the over-the-counter market or minimum prices shall have been established on any such exchange or market by the Commission, by such exchange or by another regulatory body or governmental authority having jurisdiction; (ii) trading of any securities issued or guaranteed by the Company or any of the Guarantors shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the reasonable judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.

 

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10. Defaulting Underwriter .

(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information and the Prospectus or in any other document or arrangement, and the Company and the Guarantors agree to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information and the Prospectus that effects any such changes. As used in this Agreement, the term “ Underwriter ” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.

(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.

(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company or the Guarantors, except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.

(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company, the Guarantors or any non-defaulting Underwriter for damages caused by its default.

 

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11. Payment of Expenses .

(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and each of the Guarantors jointly and severally agree to pay or cause to be paid all costs and expenses incident to the performance of their respective obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and the Guarantees and any transfer taxes imposed on the Company in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s and the Guarantors’ counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters, which fees and expenses of such counsel shall not exceed $15,000); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority; (ix) all fees and expenses related to the listing of the Securities on the Exchange; and (x) all expenses incurred by the Company in connection with any “road show” presentation to potential investors; provided , however , that, except as otherwise provided herein, the Underwriters shall pay their own costs and expenses, apportioned pro rata in accordance with the amount of Securities purchased by each Underwriter as set forth on Schedule 1, including the fees and expenses of counsel to the Underwriters, any transfer taxes on the Securities which they may sell and the expenses of advertising any offering of the Securities made by the Underwriters.

(b) If (i) this Agreement is terminated pursuant to Section 9 (other than if the Company, the Guarantors and the Underwriters subsequently enter into another agreement for the Underwriters to underwrite the same or substantially similar securities of the Company), (ii) the Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement relating to the failure of the Company or any Guarantor to perform any obligation or satisfy any condition applicable to it, the Company and the Guarantors agree to reimburse the Underwriters for all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.

12. Persons Entitled to Benefit of Agreement . This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors

 

26


and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.

13. Survival . The respective indemnities, rights of contribution, representations, warranties and agreements of the Company, the Guarantors and the Underwriters contained in this Agreement or made by or on behalf of the Company, the Guarantors or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company, the Guarantors or the Underwriters.

14. Certain Defined Terms . For purposes of this Agreement, (a) except where otherwise expressly provided, the term “ affiliate ” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “ business day ” means any day, other than a Saturday or Sunday, (1) that is not a day on which banking institutions in the City of New York or London are authorized or required by law or executive order to close and (2) on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the TARGET2 system), or any successor thereto, is open; and (c) the term “ subsidiary ” has the meaning set forth in Rule 405 under the Securities Act.

15. Compliance with USA Patriot Act . In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

16. Miscellaneous .

(a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by BNP Paribas, Goldman, Sachs & Co. and J.P. Morgan Securities plc on behalf of the Underwriters, and any such action taken by BNP Paribas, Goldman, Sachs & Co. and J.P. Morgan Securities plc shall be binding upon the Underwriters.

(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o BNP Paribas, 10 Harewood Avenue, London, NW1 6AA, United Kingdom (fax: +44 (0) 20 7595 2555); Attention: Fixed Income Syndicate; c/o Goldman, Sachs & Co., 200 West Street, New York, NY 10282; Attention: Registration Department; and c/o J.P. Morgan Securities plc, 25 Bank Street, Canary Wharf, London E14 5JP, United Kingdom (fax: +44 20 3493 0682; Email:

 

27


Head_of_EMEA_DCMG@jpmorgan.com); Attention: Head of Debt Syndicate and Head of EMEA Debt Capital Markets Group; . Notices to the Company and the Guarantors shall be given to them at Expedia, Inc., 333 108th Avenue, N.E., Bellevue, WA 98004 (fax: 425-679-3163); Attention: Chief Financial Officer (with a copy to the General Counsel at the same address; fax: 425-679-7251).

(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York.

(d) Submission to Jurisdiction . The Company and each of the Guarantors hereby submit to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company and each of the Guarantors waive any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. Each of the Company and each of the Guarantors agree that a final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and each Guarantor, as applicable, and may be enforced in any court to the jurisdiction of which Company and each Guarantor, as applicable, is subject by a suit upon such judgment.

(e) Waiver of Jury Trial . Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating to this Agreement.

(f) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.

(g) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.

(h) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.

17. Agreement Among Underwriters . The Underwriters agree as between themselves that they will be bound by and will comply with the International Capital Markets Association Agreement Among Managers Version 1/New York Law Schedule (the “ Agreement Among Managers ”) as amended in the manner set out below. For purposes of the Agreement Among Managers, “Managers” means the Underwriters, “Lead Manager” means the Representatives, “Settlement Lead Manager” means J.P. Morgan Securities plc, “Stabilising Manager” means J.P. Morgan Securities plc and “Subscription Agreement” means this Underwriting Agreement. Clause 3 of the Agreement Among Managers shall be deleted in its entirety and replaced with Section 10 of this Agreement.

 

28


18. Stabilization . In connection with the issue of the Securities, the Stabilising Manager (or any person acting on behalf of the Stabilising Manager) may over-allot Securities or effect transactions with a view to supporting the market price of the Securities at a level higher than that which might otherwise prevail, but in doing so the Stabilising Manager shall act as principal and not as agent of the Company and any loss resulting from overallotment and stabilization shall be borne, and any profit arising therefrom shall be beneficially retained, by the Stabilising Manager. However, there is no assurance that the Stabilising Manager (or persons acting on behalf of the Stabilising Manager) will undertake any stabilization action. Any stabilization action may begin on or after the date on which adequate public disclosure of the final terms of the offer of the Securities is made, and, if begun, may be ended at any time, but it must end no later than the earlier of 30 days after the issue of the Securities and 60 days after the date of the allotment of the Securities. Such stabilization shall be carried out in accordance with all applicable laws and regulations. The Stabilising Manager may conduct these transactions in the over-the-counter market or otherwise. If the Stabilising Manager commences any stabilization action, it may discontinue them at any time. Nothing contained in this paragraph shall be construed so as to require the Company to issue in excess of the aggregate principal amount of Securities specified in Schedule 1 hereto.

 

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If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.

 

Very truly yours,
EXPEDIA, INC., a Delaware corporation, as Issuer
by:

/s/ Mark D. Okerstrom

Name: Mark D. Okerstrom
Title:

Executive Vice President and

Chief Financial Officer

EXPEDIA, INC., a Washington corporation, as Subsidiary Guarantor,
by:

/s/ Mark D. Okerstrom

Name:   Mark D. Okerstrom
Title:

Executive Vice President and

Chief Financial Officer

TRAVELSCAPE, LLC, as Subsidiary Guarantor,
by:

/s/ Mark D. Okerstrom

Name: Mark D. Okerstrom
Title:

Executive Vice President and

Chief Financial Officer

HOTWIRE, INC., as Subsidiary Guarantor,
by:

/s/ Mark D. Okerstrom

Name: Mark D. Okerstrom
Title: Executive Vice President
HOTELS.COM, L.P., as Subsidiary Guarantor,
by:  

/s/ Mark D. Okerstrom

Name: Mark D. Okerstrom
Title:

Executive Vice President and

Chief Financial Officer

 

[ Signature Page to Underwriting Agreement ]


EXPEDIA, INC., a Washington corporation, on behalf of HOTELS.COM GP, LLC, as Subsidiary Guarantor,
by:  

/s/ Mark D. Okerstrom

Name:   Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
HRN 99 HOLDINGS, LLC, as Subsidiary Guarantor,
by:

/s/ Mark D. Okerstrom

Name: Mark D. Okerstrom
Title: Manager
EGENCIA LLC, as Subsidiary Guarantor,
by:

/s/ Mark D. Okerstrom

Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
EAN.COM, LP, as Subsidiary Guarantor,
by:

/s/ Mark D. Okerstrom

Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
INTERACTIVE AFFILIATE NETWORK, LLC, as Subsidiary Guarantor,
by:

/s/ Mark D. Okerstrom

Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer

 

[ Signature Page to Underwriting Agreement ]


CLASSIC VACATIONS, LLC, as Subsidiary Guarantor,
by:  

/s/ Mark D. Okerstrom

Name:   Mark D. Okerstrom
Title:

Executive Vice President and

Chief Financial Officer

WWTE, INC., as Subsidiary Guarantor,
by:

/s/ Mark D. Okerstrom

Name: Mark D. Okerstrom
Title:

Executive Vice President and

Chief Financial Officer

CARRENTALS.COM, INC., as Subsidiary Guarantor,
by:

/s/ Mark D. Okerstrom

Name: Mark D. Okerstrom
Title: Executive Vice President
EXPEDIA, INC., a Washington corporation, on behalf of CRUISE, LLC, as Subsidiary Guarantor,
by:

/s/ Mark D. Okerstrom

Name: Mark D. Okerstrom
Title:

Executive Vice President and

Chief Financial Officer

 

[ Signature Page to Underwriting Agreement ]


BNP PARIBAS
By:

/s/ Benedict Foster

Name: Benedict Foster
Title:   Authorised Signatory
By:  

/s/ Hugh Pryse-Davies

Name: Hugh Pryse-Davies
Title:   Duly Authorised Signatory

 

[ Signature Page to Underwriting Agreement ]


GOLDMAN, SACHS & CO.
By:  

/s/ Ryan Gilliam

Name: Ryan Gilliam
Title:   Vice President

 

[ Signature Page to Underwriting Agreement ]


J.P. MORGAN SECURITIES PLC
By:  

/s/ Selma Adhikary

Name: Selma Adhikary
Title:   Executive Director

 

[ Signature Page to Underwriting Agreement ]


MERRILL LYNCH INTERNATIONAL
By:  

/s/ Marc Tempelman

Name: Marc Tempelman
Title:   Managing Director

 

[ Signature Page to Underwriting Agreement ]


MIZUHO INTERNATIONAL PLC
By:  

/s/ Guy Reid

Name: Guy Reid
Title:   Managing Director

 

[ Signature Page to Underwriting Agreement ]


RBC EUROPE LIMITED
By:  

/s/ Ivan Browne

Name: Ivan Browne
Title:   Duly Authorised Signatory

 

[ Signature Page to Underwriting Agreement ]


HSBC BANK PLC
By:  

/s/ Karl Allen

Name: Karl Allen
Title:   Director
            Transaction Management Group
            EMEA Debt Capital Markets

 

[ Signature Page to Underwriting Agreement ]


MITSUBISHI UFJ SECURITIES INTERNATIONAL PLC
By:  

/s/ An-chi Chen-Tanner

Name: An-chi Chen-Tanner
Title:   Authorised Signatory

 

[ Signature Page to Underwriting Agreement ]


SMBC NIKKO CAPITAL MARKETS LIMITED
By:  

/s/ Stephen Apted

Name: Stephen Apted
Title:   Managing Director

 

[ Signature Page to Underwriting Agreement ]


BARCLAYS BANK PLC
By:  

/s/ Catherine Wade

Name: Catherine Wade
Title: Authorised Attorney

 

[ Signature Page to Underwriting Agreement ]


U.S. BANCORP INVESTMENTS, INC.
By:  

/s/ Jason Schubert

Name: Jason Schubert
Title: Vice President

 

[ Signature Page to Underwriting Agreement ]


Schedule 1

 

Underwriter

   Principal Amount  

BNP Paribas

   130,000,000   

Goldman, Sachs & Co.

     97,500,000   

J.P. Morgan Securities plc

     130,000,000   

Merrill Lynch International

     65,000,000   

Mizuho International plc

     65,000,000   

RBC Europe Limited

     65,000,000   

HSBC Bank plc

     23,725,000   

Mitsubishi UFJ Securities International plc

     23,725,000   

SMBC Nikko Capital Markets Limited

     23,725,000   

Barclays Bank plc

     13,162,500   

U.S. Bancorp Investments, Inc.

     13,162,500   
  

 

 

 

Total

650,000,000   


Schedule 2

 

Name of Subsidiary

  

Jurisdiction

CarRentals.com, Inc.

   Nevada

Classic Vacations, LLC

   Nevada

Cruise, LLC

   Washington

EAN.com, LP

   Delaware

Egencia LLC

   Nevada

Expedia, Inc.

   Washington

Hotels.com GP, LLC

   Texas

Hotels.com, L.P.

   Texas

Hotwire, Inc.

   Delaware

HRN 99 Holdings, LLC

   New York

Interactive Affiliate Network, LLC

   Delaware

Travelscape, LLC

   Nevada

WWTE, Inc.

   Nevada


Schedule 3

 

Subsidiary

  

Jurisdiction

Activity Information Center, Inc.    United States - HI
CarRentals.com, Inc.    United States - NV
Classic Vacations, LLC    United States - NV
Cruise, LLC    United States - WA
CruiseShipCenters Holdings Inc    United States - NV
CruiseShipCenters USA Inc.    United States - NV
DN Holdings LLC    United States - DE
EAN.com, LP    United States - DE
Egencia APAC Holdings, Inc.    United States - WA
Egencia LLC    United States - NV
Expedia Global, LLC    United States - NV
Expedia, Inc.    United States - WA
Hotels.com GP, LLC    United States - TX
Hotels.com, L.P.    United States - TX
Hotwire, Inc.    United States - DE
HRN 99 Holdings, LLC    United States - NY
Interactive Affiliate Network, LLC    United States - DE
IAC/Expedia Global, LLC    United States - DE
Lodging Partner Services LLC    United States - DE
Mobiata, LLC    United States - MN
Premier Getaways, Inc.    United States - FL
T-16 Holdings, LLC    United States - DE
Travelscape, LLC    United States - NV
WWTE, Inc.    United States - NV
Xeta, Inc.    United States - DE
1 to 1 Cruises Inc.    Canada
AAE Japan K.K.    Japan
AAE (Thailand) Limited    Thailand
AAE Travel Services India Private Limited    India
AAEXP Malaysia Sdn Bhd    Malaysia
A.C.N. 079 010 772 Pty Ltd.    Australia
Andaman Graphics Co., Ltd.    Thailand
AnyRoadTour Limited    UK
Arnold Travel Technology (NZ) Limited    New Zealand
Arnold Travel Technology Pty Limited    Australia
Asia Web Direct (HK) Limited    Hong Kong
Asia Web Direct (M) Sdn. Bhd.    Malaysia
Asia Web Direct Co., Ltd.    Thailand
Asia Web Direct Tours & Activities Co., Ltd.    Thailand
Aspirasi Ventura Sdn Bhd    Malaysia
Auto Escape Group (SAS)    France
Auto Escape Nordics AS    France


Subsidiary

  

Jurisdiction

Auto Escape S.A.    France
AWD-BT Limited    Thailand
B264 GmbH    Germany
Car Del Mar Ferienautovermietung GmbH    Germany
CarRentals K.K.    Japan
CruiseShipCenters International Inc.    Canada
CruiseShipCenters Canada Inc.    Canada
CruiseShipCenters Western Canada Ltd.    Canada
CSC Holdings Inc.    Canada
CSC Travel Group Inc.    Canada
Egencia Australia Pty Ltd    Australia
Egencia Belgium SA    Belgium
Egencia Canada Corp.    Canada
Egencia Cayman Holdings Ltd    Cayman Islands
Egencia (China) Information Technology Co., Ltd.    China
Egencia (Shanghai) Travel Service Co., Ltd.    China
Egencia (Shanghai) Travel Service Co., Ltd. Beijing Branch    China
Egencia (Shanghai) Travel Service Co., Ltd. Jing’an Branch    China
Egencia Europe SAS    France
Egencia France SAS    France
Egencia GmbH    Germany
Egencia Holdings UK Ltd.    UK
Egencia KK    Japan
Egencia Travel India Private Limited    India
Egencia UK Ltd.    United Kingdom
Expedia Australia Holdings Pty Ltd    Australia
Expedia Australia Investments Pty Ltd    Australia
Expedia Alpha Y.K.    Japan
Expedia Argentina S.R.L.    Argentina
Expedia Asia Holdings Mauritius    Mauritius
Expedia Asia Pacific Limited    Hong Kong
Expedia Asia Pacific-Alpha Limited    Cayman Islands
Expedia Asia Pacific-Delta Limited    Cayman Islands
Expedia Asia Pacific-Gamma Limited    Cayman Islands
Expedia Asia Pacific-Iota Limited    Cayman Islands
Expedia Australia Pty. Ltd.    Australia
Expedia Canada Corp.    Canada
Expedia Colombia Corp.    Colombia
Expedia Consulting Services (Beijing) Co., Ltd.    China
Expedia Consulting Services (Beijing) Co., Ltd. Shanghai Branch    China


Subsidiary

  

Jurisdiction

Expedia Consulting Services (Beijing) Co., Ltd. Shenzhen Branch    China
Expedia do Brasil Agencia de Viagens e Turismo Ltda.    Brazil
Expedia Finland OY    Finland
Expedia France s.a.s.    France
Expedia FZ — LLC    United Arab Emirates (Dubai)
Expedia Greece Travel Support Services EPE    Greece
Expedia Holdings K.K.    Japan
Expedia Holdings s.a.s.    France
Expedia Italy SRL    Italy
Expedia Korea Co., Ltd.    Republic of Korea
Expedia Lodging Partner Services Sarl    Switzerland
Expedia Lodging Partner Services Sarl Representative Office    Indonesia
Expedia Mexico, S de R. L. de C.V.    Mexico
Expedia New Zealand Limited    New Zealand
Expedia Online Travel Services India Private Limited    India
Expedia Omega K.K.    Japan
Expedia Philippine Representative Office    Philippines
Expedia Poland Sp. z o.o.    Poland
Expedia Portugal, Unipessoal, Lda    Portugal
Expedia s.a.    Belgium
Expedia Services CZ s.r.o    Czech Republic
Expedia Services SAS    France
Expedia Sigma K.K.    Japan
Expedia Southeast Asia Pte. Ltd.    Singapore
Expedia Spain, S.L.    Spain
Expedia Singapore Pte. Ltd.    Singapore
Expedia Sweden AB    Sweden
Expedia (Thailand) Limited    Thailand
ExpediaTurkey Seyahat Destek Hizmetleri Limited Sirketi    Turkey
Expedia.com GmbH    Germany
Expedia.com Limited    United Kingdom
Expedia.nl B.V.    Netherlands
Extensive Region Travel Network Limited Company    Taiwan
Ferieverden AS    Norway
Go Do Pty Ltd    Australia
Hotels.com Korea Co., Ltd.    Korea
Hotels (TR) Limited    United Kingdom
Hotelz Y.K.    Japan


Subsidiary

  

Jurisdiction

Interactive Domain Name Holdings Corporation    Canada (Nova Scotia)
Lastminute.com.au Pty Limited    Australia
LateStays Co., Ltd.    Thailand
LLC Partner Services Group    Russia
Lodging Partner Services Costa Rica, S.R.L.    Costa Rica
Lodging Partner Services Denmark ApS    Denmark
Lodging Partner Travel Sdn. Bhd.    Malaysia
Millennial Travel Pte Ltd    Taiwan
Partner Services Group Travel South Africa Pty Ltd    South Africa
Phuket Dot Com Ltd    Thailand
PT Lodging Partner Services Indonesia    Indonesia
Quebec CruiseShipCenters Inc.    Canada
Standby Holdings Pty Ltd    Australia
Swetra Group AB    Sweden
TGO (Thailand) Limited    Thailand
The Tourism Representative Office of Expedia Lodging Partner Services Sarl in Ho Chi Minh City    Vietnam
Travel.com.au Pty Ltd    Australia
Traveldoo SAS    France
Traveldoo UK Limited    United Kingdom
Travelforce New Zealand Limited    New Zealand
Travelmax Pty Ltd    Australia
Travel Partner Exchange S.L.U.    Spain
Trivago GmbH    Germany
Trivago Spain, S.L.    Spain
Trivago Hong Kong Limited    Hong Kong
Trivago (Shanghai) Information Consulting Co., Ltd.    China
Tron Newco GmbH    Germany
VacationSpot S.L.    Spain
Venere Net S.r.l.    Italy
Venere UK Limited    United Kingdom
VIA Egencia AS    Norway
VIA Egencia Denmark A/S    Denmark
VIA Egencia Finland Oy    Finland
VIA Egencia Sweden AB    Sweden
VIA Egencia Norway AS    Norway
VIA Egencia Philippines Inc.    Philippines
Wotif.com Holdings Pty. Ltd.    Australia
Wotif.com Holdings Limited Representative Office    Indonesia (Bali)
Wotif.com (NZ) Limited    New Zealand


Subsidiary

  

Jurisdiction

Wotif.com Inc.    Canada
Wotif.com Limited    United Kingdom
Wotif.com Pte. Ltd.    Singapore
Wotif.com Pty. Ltd.    Australia
Wotif.com Sdn. Bhd.    Malaysia
Wotif.com Share Administration Pty Ltd    Australia
WWTE, Inc. Taiwan Representative Office    Taiwan
WWTE Travel Limited    Ireland
WWTE Travel S.à r.l.    Luxembourg


Annex B

Time of Sale Information

 

    Pricing Term Sheet, dated May 28, 2015, substantially in the form of Annex C.


Annex C

Filed Pursuant to Rule 433

Registration Statement No. 333-197974

Pricing Term Sheet

Expedia, Inc.

Pricing Term Sheet

 

Issuer: Expedia, Inc.
Guarantors: Certain subsidiaries of the Issuer
Security Description: 2.500% Senior Notes due 2022
Size: €650,000,000
Maturity: June 3, 2022
Coupon: 2.500% per annum
Price: 99.525% of face amount
Yield to maturity: 2.575%
Spread to Benchmark Bund: +239.6 bps
Benchmark Bund: DBR 2.000% due Jan 4, 2022
Benchmark Bund Price and Yield: 111.925 / 0.179%
Spread to Mid Swaps: +197.3 bps
Mid Swaps Yield: 0.602%
Interest Payment Date: June 3 of each year, commencing June 3, 2016
Day Count Convention: Actual/Actual (ICMA)
Redemption Provisions:

Make-whole call

At any time prior to March 3, 2022, at a discount rate of the applicable Comparable Government Bond Rate plus 40 basis points, plus accrued and unpaid interest, if any

Par call

At any time on or after March 3, 2022, plus accrued and unpaid interest, if any
Settlement:

T+4; June 3, 2015

The Issuer expects to deliver the notes against payment for the notes on or about June 3, 2015, which will be the fourth business day following the date of the pricing of the notes. Since trades in the secondary market generally settle in three business days, purchasers who wish to trade notes on the date of pricing will be required, by virtue of the fact that the notes initially will settle T+4, to specify alternative settlement arrangements to prevent a failed settlement.

CUSIP: 30212P AK1
ISIN: XS1117297512
Common Code: 111729751
Ratings*: Moody’s: Ba1 (Stable), S&P: BBB- (Stable); Fitch: BBB- (Stable)
Minimum denomination: €100,000 and multiples of €1,000
Listing: The Issuer intends to apply to list the notes on the New York Stock Exchange


Joint Bookrunners:

BNP Paribas

Goldman, Sachs & Co.

J.P. Morgan Securities plc

Merrill Lynch International

Mizuho International plc

RBC Europe Limited

Co-Managers:

HSBC Bank plc

Mitsubishi UFJ Securities International plc

SMBC Nikko Capital Markets Limited

Barclays Bank plc

U.S. Bancorp Investments, Inc.

 

* Note: A securities rating is not a recommendation to buy, sell or hold securities and may be revised or withdrawn at any time.

Each of the issuer and the guarantors has filed a registration statement (File No. 333-197974), as amended, including a prospectus, with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov . Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling BNP Paribas toll-free at 1-800-854-5674, calling Goldman, Sachs & Co. toll-free at 1-866-471-2526 or calling J.P. Morgan collect at (212) 834-4533.

EXHIBIT 4.2

EXPEDIA, INC.,

as Issuer,

THE SUBSIDIARY GUARANTORS PARTY HERETO,

as Subsidiary Guarantors, and

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee

 

 

FOURTH

SUPPLEMENTAL

INDENTURE

Dated as of June 3, 2015

to the Indenture

Dated as of August 18, 2014

 

 

€650,000,000 Aggregate Principal Amount

of

2.500% Senior Notes due 2022

 

 

 


TABLE OF CONTENTS

 

         Page  
ARTICLE ONE   
DEFINITIONS AND INCORPORATION BY REFERENCE   
SECTION 1.1  

Definitions

     2   
SECTION 1.2  

Other Definitions

     7   
SECTION 1.3  

Incorporation by Reference of Trust Indenture Act

     8   
ARTICLE TWO   
THE NOTES   
SECTION 2.1  

Creation of Series of Securities

     8   
SECTION 2.2  

Terms of the Notes

     8   
SECTION 2.3  

Issuance of Additional Notes

     8   
SECTION 2.4  

Additional Amounts

     9   
ARTICLE THREE   
REDEMPTION   
SECTION 3.1  

Optional Redemption

     11   
SECTION 3.2  

Redemption for Tax Reasons

     12   
SECTION 3.3  

Selection of Notes to be Redeemed

     13   
SECTION 3.4  

Mandatory Redemption; Sinking Fund

     13   
ARTICLE FOUR   
CERTAIN COVENANTS   
SECTION 4.1  

Limitations on Liens

     13   
SECTION 4.2  

Limitation on Sale and Lease-Back Transactions

     15   
SECTION 4.3  

Change of Control Triggering Event

     16   
ARTICLE FIVE   
AMENDMENT, SUPPLEMENT AND WAIVER   
SECTION 5.1  

Without Consent of Holders of the Notes

     17   
SECTION 5.2  

With Consent of Holders of Notes

     18   

 

-i-


SECTION 5.3

Compliance with Trust Indenture Act

  19   
SECTION 5.4

Effect of Consents and Waivers

  19   
SECTION 5.5

Notation on or Exchange of Notes

  20   
SECTION 5.6

Trustee To Sign Amendments

  20   
ARTICLE SIX   
GUARANTEES   
SECTION 6.1

Guarantee

  20   
SECTION 6.2

Future Subsidiary Guarantors

  20   
ARTICLE SEVEN   
DEFAULTS AND REMEDIES   
SECTION 7.1

Events of Default

  21   
SECTION 7.2

Acceleration

  22   
SECTION 7.3

Other Remedies

  23   
SECTION 7.4

Waiver of Past Defaults

  23   
SECTION 7.5

Control by Majority

  23   
SECTION 7.6

Limitation on Suits

  23   
SECTION 7.7

Rights of Holders to Receive Payment

  24   
SECTION 7.8

Collection Suit by Trustee

  24   
SECTION 7.9

Trustee May File Proofs of Claim

  24   
SECTION 7.10

Priorities

  25   
SECTION 7.11

Undertaking for Costs

  25   
SECTION 7.12

Waiver of Stay or Extension Laws

  25   
ARTICLE EIGHT   

APPLICATION OF SUPPLEMENTAL INDENTURE

AND CREATION OF THE INITIAL NOTES

  

  

SECTION 8.1

Application of This Supplemental Indenture

  26   
SECTION 8.2

Effect of Supplemental Indenture

  26   
ARTICLE NINE   
MISCELLANEOUS   
SECTION 9.1

The Supplemental Indenture

  28   
SECTION 9.2

Counterparts

  28   
SECTION 9.3

Effect of Headings and Table of Contents

  28   

 

-ii-


SECTION 9.4

Governing Law

  28   
SECTION 9.5

No Representation

  28   

 

EXHIBIT A FORM OF 2.500% SENIOR NOTE DUE 2022
SCHEDULE A SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE

 

-iii-


FOURTH SUPPLEMENTAL INDENTURE (this “ Supplemental Indenture ”), dated as of June 3, 2015, by and among Expedia, Inc., a Delaware corporation (the “ Company ”), the Subsidiary Guarantors that are a party hereto and The Bank of New York Mellon Trust Company, N.A., as trustee (the “ Trustee ”).

WHEREAS, the Company, certain Subsidiary Guarantors and the Trustee entered into the Indenture, dated as of August 18, 2014 (the “ Base Indenture ”, together with this Supplemental Indenture, the “ Indenture ”);

WHEREAS, the Company, certain Subsidiary Guarantors and the Trustee entered into the First Supplemental Indenture, dated as of August 18, 2014, the Second Supplemental Indenture, dated as of February 26, 2015, and the Third Supplemental Indenture, dated as of April 29, 2015, pursuant to which the Company established and issued $500,000,000 in aggregate principal amount of 4.500% Senior Notes due 2024 (the “ 2024 Notes ”) and provided that obligations under the 2024 Notes would be guaranteed by certain of the Company’s Subsidiaries;

WHEREAS, Section 11.01 of the Base Indenture provides, among other things, that the Company and the Trustee may enter into a supplemental indenture to the Base Indenture for, among other things, the purpose of establishing the form and terms of the Securities (as defined in the Base Indenture) of any series as contemplated by Sections 2.01 and 3.01 of the Base Indenture;

WHEREAS, on the date hereof the Company desires to establish and issue a new series of Securities, to be designated as the Company’s 2.500% Senior Notes due 2022 pursuant to the Base Indenture, as supplemented and amended by this Supplemental Indenture, which Notes (as defined below) shall be senior unsecured obligations of the Company; and

WHEREAS, the Company desires to enter into a supplemental indenture pursuant to Sections 2.01, 3.01 and 11.01 of the Base Indenture to establish the form and terms of the Notes and to add to or change the provisions of the Base Indenture as necessary and advisable to facilitate the issuance of the Notes, as contemplated by Sections 2.01 and 3.01 of the Base Indenture.

NOW, THEREFORE, in consideration of the foregoing, the parties hereto, for the benefit of each other and for the equal and proportionate benefit of the other parties and for the equal and ratable benefit of the Holders of (i) the Initial Notes and (ii) Additional Notes (as defined herein), if any, issued from time to time (together with the Initial Notes, the “ Notes ”), hereby enter into this Supplemental Indenture, which amends, modifies, supplements and restates (as applicable) the Base Indenture with respect to (and only with respect to) the Notes, as follows:


ARTICLE ONE

DEFINITIONS AND INCORPORATION BY REFERENCE

SECTION 1.1 Definitions .

Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Base Indenture.

Additional Notes ” means Notes issued under the Indenture after the Issue Date and in compliance with Section 2.3.

Attributable Debt ” means, with respect to any sale and lease-back transaction, at the time of determination, the lesser of (1) the sale price of the property so leased multiplied by a fraction the numerator of which is the remaining portion of the base term of the lease included in such transaction and the denominator of which is the base term of such lease, and (2) the total obligation (discounted to present value at the implicit interest factor, determined in accordance with GAAP, included in the rental payments) of the lessee for rental payments (other than amounts required to be paid on account of property taxes as well as maintenance, repairs, insurance, water rates and other items which do not constitute payments for property rights) during the remaining portion of the base term of the lease included in such transaction.

Board of Directors ” or “ Board ” means, with respect to any Person, the Board of Directors of such Person or any committee thereof duly authorized to act on behalf of such Board or, in the case of a Person that is not a corporation, the group exercising the authority generally vested in a board of directors of a corporation.

Business Day ” means, with respect to any Note, any Monday, Tuesday, Wednesday, Thursday or Friday which is not a day when banking institutions are authorized or obligated by law or executive order to be closed in New York City or London and, for any place of payment outside of New York City or London, in such place of payment, and a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer system, or any successor thereto, operates.

Change of Control ” means the occurrence of any one of the following:

(1) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company;

(2) individuals who on the Issue Date constituted the Board of Directors of the Company (together with any new directors whose election by such Board of Directors of the Company or whose nomination for election by the shareholders of the Company was approved or ratified by a vote of a majority of the directors of the Company then still in office who were either directors on the Issue Date or whose election or nomination for election was previously so approved or ratified) cease for any reason to constitute a majority of the Board of Directors of the Company then in office;

 

2


(3) the adoption of a plan relating to the liquidation or dissolution of the Company; or

(4) the merger or consolidation of the Company with or into another Person or the merger of another Person with or into the Company, or the sale of all or substantially all the assets of the Company (determined on a consolidated basis) to another Person other than (i) a transaction in which the survivor or transferee is a Person that is controlled by the Permitted Holders or (ii) a transaction following which (A) in the case of a merger or consolidation transaction, holders of securities that represented 100% of the Voting Stock of the Company immediately prior to such transaction (or other securities into which such securities are converted as part of such merger or consolidation transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of the surviving Person in such merger or consolidation transaction immediately after such transaction and (B) in the case of a sale of assets transaction, each transferee becomes an obligor in respect of the Notes and either (i) each transferee becomes a Subsidiary of the transferor of such assets or (ii) holders of securities that represented 100% of the Voting Stock of the Company immediately prior to such transaction (or other securities into which such securities are converted as part of such transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of the transferee.

Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Company becomes a direct or indirect wholly-owned subsidiary (the “ Sub Entity ”) of a holding company and (2) holders of securities that represented 100% of the Voting Stock of the Company immediately prior to such transaction (or other securities into which such securities are converted as part of such merger or consolidation transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of such holding company; provided that, upon the consummation of any such transaction, “Change of Control” shall thereafter include any Change of Control of any direct or indirect parent of the Sub Entity.

Change of Control Triggering Event ” means the occurrence of both a Change of Control and a Ratings Event.

Clearstream ” means Clearstream Banking, société anonyme.

Company ” means the Person named as the “ Company ” in the preamble to this Supplemental Indenture until a successor corporation shall have become such “ Company ” pursuant to the applicable provisions of the Indenture, and thereafter, the “ Company ” shall mean such successor corporation.

Comparable Government Bond ” means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by the Company, a German federal government bond whose maturity is closest to the maturity of the Notes to be redeemed, or if such independent investment bank in its discretion determines that such similar bond is not in issue, such other German federal government bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German federal government bonds selected by the Company, determine to be appropriate for determining the Comparable Government Bond Rate.

 

3


Comparable Government Bond Rate ” means, with respect to any Redemption Date, the price, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), at which the gross redemption yield on the Notes to be redeemed, if they were to be purchased at such price on the third Business Day prior to the Redemption Date, would be equal to the gross redemption yield on such Business Day of the Comparable Government Bond (as defined above) on the basis of the middle market price of the Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business Day as determined by an independent investment bank selected by the Company.

Consolidated Net Assets ” means, as of the time of determination, the aggregate amount of the assets of the Company and its consolidated Subsidiaries after deducting all current liabilities other than (1) short-term borrowings, (2) current maturities of long-term debt and (3) current maturities of obligations under capital leases, as reflected on the Company’s most recent consolidated balance sheet prepared in accordance with GAAP at the end of the most recently completed fiscal quarter or fiscal year, as applicable.

Credit Agreement ” means the Amended and Restated Credit Agreement, dated as of September 5, 2014, among the Company, Expedia, Inc. (a Washington corporation), Travelscape, LLC, Hotwire, Inc., the lenders party thereto, JPMorgan Chase Bank N.A., as administrative agent, and J.P. Morgan Europe Limited, as London Agent, as the same has been amended, supplemented or otherwise modified prior to the date hereof and may be further amended, supplemented or otherwise modified from time to time, and any successor credit agreement thereto (whether by renewal, replacement, refinancing or otherwise) that the Company in good faith designates to be its principal credit agreement (taking into account the maximum principal amount of the credit facility provided thereunder, the recourse nature of the agreement and such other factors as the Company deems reasonable in light of the circumstances), such designation (or the designation that at a given time there is no principal credit agreement) to be made by an Officers’ Certificate delivered to the Trustee.

Default ” means any event which is, or after notice or passage of time or both would be, an Event of Default.

Euroclear ” means Euroclear Bank S.A./N.V.

Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended.

Fitch ” means Fitch Inc., a subsidiary of Fimalac, S.A., and its successors.

GAAP ” means generally accepted accounting principles in the United States of America in effect from time to time.

Global Notes ” means the Notes in global form and registered in the name of the Depositary or its nominee that are in the form of Exhibit A attached hereto.

Government Obligations ” means (1) direct obligations of the Federal Republic of Germany, where the payment or payments thereunder are supported by the full faith and credit of the Federal Republic of Germany or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the Federal Republic of Germany, where the timely

 

4


payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the Federal Republic of Germany, which, in either case under clauses (1) or (2) are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such Government Obligations or a specific payment of interest on or principal of or other amount with respect to any such Government Obligations held by such custodian for the account of the holder of a depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligations or the specific payment of interest on or principal of or other amount with respect to the Government Obligations evidenced by such depositary receipt.

guarantee ” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise) or (2) entered into for purposes of assuring in any other manner the obligee of such indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided , however , that the term “guarantee” will not include endorsements for collection or deposit in the ordinary course of business. The term “guarantee,” when used as a verb, has a correlative meaning.

Guarantee ” means the guarantee by any Subsidiary Guarantor of the Company’s Obligations under the Indenture and the Notes.

Holder ” means the Person in whose name a Note is registered on the Securities Register books.

incur ” means issue, assume, guarantee or otherwise become liable for.

Initial Notes ” means the first €650,000,000 aggregate principal amount of Notes issued under the Indenture on the Issue Date.

Investment Grade ” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P); a rating of BBB- or better by Fitch (or its equivalent under any successor rating category of Fitch); and the equivalent investment grade credit rating from any replacement Rating Agency or Rating Agencies appointed by the Company.

Issue Date ” means June 3, 2015.

Liberty Successor ” means any Person spun or otherwise separated out of Liberty Interactive Corporation (or any Subsidiary thereof); provided no Person who is not a Permitted Holder is the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),

 

5


directly or indirectly, of more than 50% of the total voting power of the Voting Stock of such Person.

Lien ” means any mortgage, security interest, pledge, lien, charge or other similar encumbrance.

Moody’s ” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.

Non-U.S. Holder ” means a beneficial owner of Notes, other than an entity or arrangement that is treated as a partnership for U.S. federal income tax purposes, that is not a U.S. Holder.

Notes ” has the meaning assigned to it in the preamble to this Supplemental Indenture. The Notes issued under the Indenture include the Initial Notes and Additional Notes, if any, unless the context otherwise requires.

Permitted Holders ” means Barry Diller, Liberty Interactive Corporation, any Liberty Successor and their respective affiliates and any group (as such term is used in Section 13(d) and 14(d) of the Exchange Act) with respect to which any such Persons collectively exercise a majority of the voting power.

principal ” means the principal of the Note plus the premium, if any, payable on the Note which is due or overdue or is to become due at the relevant time (unless the context requires otherwise or indicates that any such premium is separately addressed); provided , however , that for purposes of calculating any such premium, the term “principal” shall not include the premium with respect to which such calculation is being made.

Rating Agency ” means each of Moody’s, S&P and Fitch; provided , that if any of Moody’s, S&P or Fitch ceases to rate the Notes or fails to make a rating of the Notes publicly available, the Company will appoint a replacement for such Rating Agency that is a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act.

Ratings Event ” means ratings of the Notes are lowered by at least two of the three Rating Agencies and the Notes are rated below Investment Grade by at least two of the three Rating Agencies in any case on any day during the period (the “ Trigger Period ”) commencing on the date 60 days prior to the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period will be extended for so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies).

Remaining Scheduled Payments ” means, with respect to any Note to be redeemed, the remaining scheduled payments of the principal and interest thereon that would be due after the related Redemption Date but for such redemption; provided , however , that, if such Redemption Date is not an Interest Payment Date with respect to such Note, the amount of the next scheduled

 

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interest payment thereon will be reduced (solely for purposes of making this determination) by the amount of interest accrued thereon to such Redemption Date.

S&P ” means Standard & Poor’s Ratings Services, a division of the McGraw-Hill Companies, Inc., and its successors.

Stated Maturity ” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof until the exercise of such option by such holder).

Subsidiary Guarantors ” means CarRentals.com, Inc., Classic Vacations, LLC, Cruise, LLC, EAN.com, LP, Egencia LLC, Expedia, Inc. (a Washington corporation), Hotels.com GP, LLC, Hotels.com, L.P., Hotwire, Inc., HRN 99 Holdings, LLC, Interactive Affiliate Network, LLC, Travelscape, LLC, and WWTE, Inc. and any other Subsidiary of the Company that, in accordance with the terms of the Indenture, Guarantees the Notes, in each case until such Guarantee is released pursuant to the provisions of Article Thirteen of the Base Indenture (as amended and supplemented by this Supplemental Indenture).

Trustee ” means the party named as such in the preamble to this Supplemental Indenture until a successor replaces it in accordance with the applicable provisions of the Indenture and, thereafter, means such successor.

U.S. Holder ” means a beneficial owner of a Note that is, for U.S. federal income tax purposes (a) an individual who is a citizen or resident of the United States, (b) a corporation (or other entity classified as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state within the United States, or the District of Columbia, (c) an estate the income of which is includible in gross income for U.S. federal income tax purposes regardless of source, or (d) a trust if (i) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust, or (ii) the trust validly elected to be treated as a U.S. person under applicable Treasury regulations.

Voting Stock ” of a Person means all classes of equity securities of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.

SECTION 1.2 Other Definitions .

 

Term

  

Defined in Section

Additional Amounts    2.4
Base Indenture    Recitals
Change of Control Offer    4.3(b)
covenant defeasance option    8.2(v)
Event of Default    7.1
Indenture    Recitals

 

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Term

  

Defined in Section

Notes    Recitals
Supplemental Indenture    Recitals
Taxes    2.4

SECTION 1.3 Incorporation by Reference of Trust Indenture Act . This Supplemental Indenture is subject to the mandatory provisions of the TIA which are incorporated by reference in, and made a part of, this Supplemental Indenture with respect to (and only with respect to) the Notes. Whenever this Supplemental Indenture refers to a provision of the TIA, the provision is incorporated by reference in, and made a part of, this Supplemental Indenture.

ARTICLE TWO

THE NOTES

SECTION 2.1 Creation of Series of Securities . Pursuant to Section 3.01 of the Base Indenture, there is hereby created a new series of Securities designated as the “2.500% Senior Notes due 2022” in an unlimited aggregate principal amount. On the Issue Date, the Company will issue €650,000,000 in aggregate principal amount of the Notes.

SECTION 2.2 Terms of the Notes . Pursuant to Section 2.01 of the Base Indenture, the Notes shall be substantially in the form annexed hereto as Exhibit A. The terms and provisions contained in the form of the Notes annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a part of this Supplemental Indenture. The Company shall be entitled to issue Additional Notes under the Indenture pursuant to Section 2.3. The Initial Notes issued on the Issue Date will be represented by one or more Global Notes deposited with The Bank of New York Mellon, London Branch, in its capacity as common depositary for Euroclear and Clearstream, which shall be the Depositary for the Notes (and registered in the name of the Depositary’s nominee), for, and in respect of interests held through, Clearstream or Euroclear. The Depositary is not required to register as a clearing agency under the Exchange Act or any other applicable statute or regulation. The Notes shall be in initial denominations of €100,000 and any integral multiple of €1,000 in excess thereof.

SECTION 2.3 Issuance of Additional Notes . After the date hereof, the Company shall, subject to compliance with the terms of the Indenture and without notice to or the consent of the Holders of the Notes, be entitled to create and issue Additional Notes under the Indenture, which Notes shall have identical terms as, and rank equally and ratably with, the Initial Notes issued on the Issue Date in all respects (or in all respects except for the date of issuance, issue price, the initial interest accrual date and amount of interest payable on the first payment date applicable thereto).

With respect to any Additional Notes, the Company shall set forth in a resolution of the Board of Directors of the Company and an Officers’ Certificate, a copy of each of which shall be delivered to the Trustee, the following information:

(a) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to the Indenture; and

 

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(b) the issue price, the issue date and the CUSIP and ISIN numbers of such Additional Notes; provided, however, that no Additional Notes may be issued with the same CUSIP or ISIN number as the Notes issued on the date hereof if such Additional Notes were issued at a price that would cause such Additional Notes to not be fungible for U.S. federal income tax purposes with any other Notes issued under the Indenture.

The Initial Notes and any Additional Notes shall vote and consent together on all matters as one class (including for purposes of waivers and amendments); and neither the Initial Notes nor any Additional Notes shall have the right to vote or consent as a separate class on any matter. The Initial Notes and any Additional Notes shall together be deemed to constitute a single class or series for all purposes under the Indenture (including for purposes of redemptions).

SECTION 2.4 Additional Amounts . All payments of principal and interest in respect of the Notes by the Company or a Paying Agent on the Company’s behalf will be made free and clear of, and without deduction or withholding for or on account of, any present or future taxes, duties, assessments or other similar governmental charges imposed or levied by the United States or any political subdivision or taxing authority of or in the United States (collectively, “ Taxes ”), unless such withholding or deduction is required by law. In the event such withholding or deduction for Taxes is required by law, subject to the limitations described below, the Company shall pay to any Non-U.S. Holder such additional amounts (“ Additional Amounts ”) as may be necessary to ensure that the net amount received by such Person, after withholding or deduction for such Taxes, will be equal to the amount such Person would have received in the absence of such withholding or deduction. However, no Additional Amounts shall be payable with respect to any Taxes if such Taxes are imposed or levied for reasons unrelated to the Holder’s or beneficial owner’s ownership or disposition of Notes, nor shall Additional Amounts be payable for or on account of:

(a) any Taxes which would not have been so imposed, withheld or deducted but for:

(i) the existence of any present or former connection between the Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder or other equity owner of, or a Person having a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, a trust, a limited liability company, a partnership, a corporation or other entity) and the United States, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or other equity owner or Person having such a power) being or having been a citizen or resident or treated as a resident of the United States, being or having been engaged in a trade or business in the United States, being or having been present in the United States, or having or having had a permanent establishment in the United States;

(ii) the failure of the Holder or beneficial owner to comply with any applicable certification, information, documentation or other reporting requirement, if compliance is required under the tax laws and regulations of the United States or any political subdivision or taxing authority of or in the United States to establish entitlement to a partial or complete exemption from such Taxes (including, but not limited to, the requirement to provide Internal Revenue Service Form W-8BEN, Form W-8BEN-E, Form W-8ECI, or any subsequent versions thereof or successor thereto); or

 

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(iii) the Holder’s or beneficial owner’s present or former status as a personal holding company or a foreign personal holding company with respect to the United States, as a controlled foreign corporation with respect to the United States, as a passive foreign investment company with respect to the United States, as a foreign tax exempt organization with respect to the United States or as a corporation that accumulates earnings to avoid United States federal income tax;

(b) any Taxes which would not have been imposed, withheld or deducted but for the failure of the Holder or beneficial owner to meet the requirements (including the certification requirements) of Section 871(h) or Section 881(c) of the Code;

(c) any Taxes which would not have been imposed, withheld or deducted but for the presentation by the Holder or beneficial owner of such Note for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment of the Note is duly provided for and notice is given to Holders, whichever occurs later, except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts on presenting such Note on any date during such 30-day period;

(d) any estate, inheritance, gift, sales, excise, transfer, personal property, wealth or similar Taxes;

(e) any Taxes which are payable otherwise than by withholding or deduction from a payment on such Note;

(f) any Taxes which are imposed, withheld or deducted with respect to, or payable by, a Holder that is not the beneficial owner of the Note, or a portion of the Note, or that is a fiduciary, partnership, limited liability company or other similar entity, but only to the extent that a beneficial owner, a beneficiary or settlor with respect to such fiduciary or member of such partnership, limited liability company or similar entity would not have been entitled to the payment of an Additional Amount had such beneficial owner, settlor, beneficiary or member received directly its beneficial or distributive share of the payment;

(g) any Taxes required to be withheld or deducted by any Paying Agent from any payment on any Note, if such payment can be made without such withholding or deduction by at least one other Paying Agent;

(h) any Taxes required to be withheld or deducted where such withholding or deduction is imposed pursuant to European Council Directive 2003/48/EC on the taxation of savings income, or any law implementing or complying with, or introduced in order to conform to, such European Council Directive;

(i) any Taxes imposed, withheld or deducted under Sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code;

 

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(j) any Taxes that would not have been imposed, withheld or deducted but for a change in any law, treaty, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the applicable payment becomes due or is duly provided for, whichever occurs later; or

(k) any combination of clauses (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j) of this Section 2.4.

Any Additional Amounts shall be paid in euro.

For purposes of this Section 2.4, the acquisition, ownership, enforcement, or holding of or the receipt of any payment with respect to a Note will not constitute a connection (1) between the Holder or beneficial owner and the United States or (2) between a fiduciary, settlor, beneficiary, member or shareholder or other equity owner of, or a Person having a power over, such Holder or beneficial owner if such Holder or beneficial owner is an estate, a trust, a limited liability company, a partnership, a corporation or other entity and the United States.

Except as specifically provided under this Section 2.4, the Company shall not be required to make any payment with respect to any tax, duty, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority.

If the Company is required to pay Additional Amounts with respect to the Notes, the Company shall notify the Trustee and Paying Agent pursuant to an Officers’ Certificate that specifies the Additional Amounts payable and when the Additional Amounts are payable. If the Trustee and the Paying Agent do not receive such an Officers’ Certificate from the Company, the Trustee and Paying Agent may rely on the absence of such an Officers’ Certificate in assuming that no such Additional Amounts are payable.

For so long as the Notes are Outstanding, the Company undertakes that, to the extent permitted by law, the Company shall maintain a Paying Agent in a jurisdiction that will not require withholding or deduction of tax pursuant to any law implementing European Council Directive 2003/48/EC on the taxation of savings income.

Whenever in the Indenture (including the Notes) there is referenced, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or any other amount payable under, or with respect to, the Notes or the Guarantees, such reference will be deemed to include payment of Additional Amounts as described under this Section 2.4 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

ARTICLE THREE

REDEMPTION

SECTION 3.1 Optional Redemption . (a) Prior to March 3, 2022 (the date that is three months prior to the maturity date of the Notes), the Notes shall be redeemable, in whole or in part,

 

11


from time to time, at the option of the Company, at a redemption price equal to the greater of (i) 100% of the aggregate principal amount of the Notes to be redeemed and (ii) the sum of the present values of the Remaining Scheduled Payments thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 40 basis points, in each case plus accrued and unpaid interest thereon to but excluding the redemption date. The Company shall give the Trustee notice of the Redemption Price with respect to any redemption pursuant to this clause (a) promptly after the calculation thereof and the Trustee shall not be responsible for any such calculation. Notwithstanding Section 4.04 of the Base Indenture, the notice to the Holders of any redemption pursuant to this clause (a) need not set forth the Redemption Price but only the manner of calculation thereof.

(b) On or after March 3, 2022 (the date that is three months prior to the maturity date of the Notes), the Notes shall be redeemable, in whole or in part, from time to time, at the option of the Company, at a redemption price equal to 100% of the aggregate principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to but excluding the Redemption Date.

SECTION 3.2 Redemption for Tax Reasons . (a) The Company may redeem the Notes at its option, in whole but not in part, at a redemption price equal to 100% of the principal amount, together with any accrued and unpaid interest on the Notes to, but excluding, the Redemption Date, at any time, if:

(i) the Company has or will become obliged to pay Additional Amounts with respect to the Notes as a result of any change in, or amendment to, the laws, regulations, treaties, or rulings of the United States or any political subdivision of or in the United States or any taxing authority thereof or therein affecting taxation, or any change in, or amendment to, the application, official interpretation, administration or enforcement of such laws, regulations, treaties or rulings (including a holding by a court of competent jurisdiction in the United States), which change or amendment is enacted, adopted, announced or becomes effective on or after May 28, 2015; or

(ii) on or after May 28, 2015, any action is taken by a taxing authority of, or any action has been brought in a court of competent jurisdiction in, the United States or any political subdivision of or in the United States or any taxing authority thereof or therein, including any of those actions specified in clause (i) above, whether or not such action was taken or brought with respect to the Company, or there is any change, amendment, clarification, application or interpretation of such laws, regulations, treaties or rulings, which in any such case, will result in a material probability that the Company will be required to pay Additional Amounts with respect to the Notes (it being understood that such material probability will be deemed to result if the written opinion of independent tax counsel described in clause (ii) of Section 3.2(b) to such effect is delivered to the Trustee and the Paying Agent).

(b) Notice of any redemption pursuant to Section 3.2(a) will be mailed, or delivered electronically if held by any depositary, at least 30 days but not more than 60 days before the Redemption Date to each Holder; provided, however , that the notice of redemption shall not be

 

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given earlier than 90 days before the earliest date on which the Company would be obligated to pay such Additional Amounts if a payment in respect of the Notes was then due. Prior to the mailing or delivery of any notice of redemption pursuant to this Section 3.2, in the case of a redemption for the reasons specified in clause (i) or (ii) of Section 3.2(a), the Company shall deliver to the Trustee and the Paying Agent:

(i) an Officers’ Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the Company’s right to so redeem have occurred; and

(ii) a written opinion of independent tax counsel of nationally recognized standing to the effect that the Company has or will become obligated to pay such Additional Amounts as a result of such change or amendment or that there is a material probability that the Company will be required to pay Additional Amounts as a result of such action, change, amendment, clarification, application or interpretation, as the case may be.

(c) Unless the Company defaults in payment of the redemption price, on and after the Redemption Date, the Notes shall cease to bear interest and all rights under the Notes shall terminate.

SECTION 3.3 Selection of Notes to be Redeemed . If fewer than all the Notes then Outstanding are to be redeemed, the particular Notes to be redeemed shall be selected from the Outstanding Notes, pro rata or by lot or by such method as the Trustee shall deem fair and appropriate; provided that as long as the Notes are represented by Global Notes, interests in the Notes shall be selected for redemption by Euroclear or Clearstream in accordance with their respective standard procedures therefor. The Notes to be redeemed shall be selected from Outstanding Notes not previously called for redemption. Notes and portions thereof selected for redemption shall be in amounts of €100,000 or integral multiples of €1,000 in excess thereof. The principal amount of a Note remaining after a redemption in part shall be €100,000 or integral multiples of €1,000 in excess thereof. Provisions of the Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.

SECTION 3.4 Mandatory Redemption; Sinking Fund . The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

ARTICLE FOUR

CERTAIN COVENANTS

SECTION 4.1 Limitations on Liens . (a) So long as any Notes remain Outstanding, the Company shall not directly or indirectly, incur, and shall not permit any of its Subsidiaries to, directly or indirectly, incur any Indebtedness secured by a Lien upon any properties or assets (including Capital Stock) of the Company, or any of its Subsidiaries or upon any shares of stock or Indebtedness of any of its Subsidiaries (whether such property, assets, shares or Indebtedness are now existing or owned or hereafter created or acquired) without in any such case effectively

 

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providing, concurrently with or prior to the incurrence of any such secured Indebtedness, or the grant of a Lien with respect to any such Indebtedness to be so secured, that the Notes or, in respect of Liens on any property or assets of any Subsidiary Guarantor, the Guarantee of such Subsidiary Guarantor (together with, if the Company shall so determine, any other Indebtedness of or guarantee by the Company, the Subsidiary Guarantors or any of their respective Subsidiaries ranking equally in right of payment with the Notes or the Guarantee) shall be secured equally and ratably with (or, at the Company’s option, prior to) such Indebtedness to be so secured; provided , however , that the foregoing restrictions shall not apply to:

(1) Liens on property, shares of stock or Indebtedness of any Person existing at the time such Person becomes a Subsidiary of the Company; provided that such Lien was not incurred in anticipation of such Person becoming a Subsidiary;

(2) Liens on property, shares of stock or Indebtedness existing at the time of acquisition thereof by the Company or a Subsidiary of the Company or any of its Subsidiaries (which may include property previously leased by the Company or any of its Subsidiaries and leasehold interests on such property; provided that the lease terminates prior to or upon the acquisition) or Liens on property, shares of stock or Indebtedness to secure the payment of all or any part of the purchase price thereof, or Liens on property, shares of stock or Indebtedness to secure any Indebtedness for borrowed money incurred prior to, at the time of, or within 18 months after, the latest of the acquisition thereof, or, in the case of property, the completion of construction, the completion of improvements or the commencement of substantial commercial operation of such property for the purpose of financing all or any part of the purchase price thereof, such construction or the making of such improvements;

(3) Liens securing Indebtedness of any of the Company’s Subsidiaries or of the Company owing to the Company or any of its Subsidiaries;

(4) Liens existing on the Issue Date;

(5) Liens on property or assets of a Person existing at the time such Person is merged into or consolidated with the Company or any of its Subsidiaries, at the time such Person becomes a Subsidiary of the Company or at the time of a sale, lease or other disposition of all or substantially all of the properties or assets of a Person to the Company or any of its Subsidiaries; provided that such Lien was not incurred in anticipation of such merger, consolidation, or sale, lease or other disposition or other transaction;

(6) Liens created in connection with a project financed with, and created to secure, a Nonrecourse Obligation;

(7) Liens securing the Notes or the Guarantees; or

(8) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in the

 

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foregoing clauses (1) to (7), inclusive, without increase of the principal of the Indebtedness secured thereby; provided , however , that any Liens permitted by any of the foregoing clauses (1) to (7), inclusive, shall not extend to or cover any property of the Company or any of its Subsidiaries, as the case may be, other than the property specified in such clauses and improvements thereto.

(b) Notwithstanding the foregoing provisions of Section 4.1(a), the Company and its Subsidiaries shall be permitted to incur Indebtedness secured by Liens which would otherwise be subject to the foregoing restrictions without equally and ratably securing the Notes, or in respect of Liens on any Subsidiary Guarantor’s property or assets, the Guarantee of such Subsidiary Guarantor; provided that after giving effect thereto, the aggregate amount of all Indebtedness so secured by Liens (not including Liens permitted under clauses (1) through (8) above), together with all Attributable Debt outstanding pursuant to Section 4.2(b) does not at the time exceed 10% of the Consolidated Net Assets of the Company.

SECTION 4.2 Limitation on Sale and Lease-Back Transactions . (a) The Company shall not directly or indirectly, and shall not permit any of its Subsidiaries directly or indirectly to, enter into any sale and lease-back transaction for the sale and leasing back of any property, whether now owned or hereafter acquired, unless:

(1) such transaction was entered into prior to the Issue Date;

(2) such transaction was for the sale and leasing back to the Company of any property by one of the Company’s Subsidiaries;

(3) such transaction involves a lease for not more than three years (or which may be terminated by the Company or such Subsidiary within a period of not more than three years);

(4) the Company or such Subsidiary would be entitled to incur Indebtedness secured by a Lien with respect to such sale and lease-back transaction without equally and ratably securing the Notes or Guarantees pursuant to clauses (1) through (8) of Section 4.1(a); or

(5) the Company or any Subsidiary of the Company applies an amount equal to the net proceeds from the sale of such property to the purchase of other property or assets used or useful in the business of the Company or of any of its Subsidiaries or to the retirement of long-term Indebtedness within 270 days before or after the effective date of any such sale and lease-back transaction; provided that, in lieu of applying such amount to the retirement of long-term indebtedness, the Company may deliver Notes to the Trustee for cancellation, such Notes to be credited at the cost thereof to the Company.

(b) Notwithstanding the restrictions set forth in Section 4.2(a), the Company and its Subsidiaries shall be permitted to enter into any sale and lease-back transaction which would otherwise be subject to the foregoing restrictions, if after giving effect thereto the aggregate amount of all Attributable Debt outstanding with respect to such transactions, together with all

 

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Indebtedness outstanding pursuant to Section 4.1(b), does not at the time exceed 10% of the Consolidated Net Assets of the Company.

SECTION 4.3 Change of Control Triggering Event . (a) Upon the occurrence of a Change of Control Triggering Event, unless the Company has mailed or electronically delivered a notice of redemption pursuant to paragraph 5 of the Notes with respect to all Outstanding Notes and redeems all Notes validly tendered pursuant to such notice of redemption, each Holder shall have the right to require the Company to repurchase all or any part (in an aggregate principal amount equal to €100,000 or an integral multiple of €1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof on the date of the purchase, plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on an Interest Payment Date occurring on or prior to the date of purchase), in accordance with the terms set forth in this Section 4.3.

(b) Within 30 days following any Change of Control Triggering Event, unless the Company has previously or concurrently mailed or electronically delivered a redemption notice with respect to all Outstanding Notes pursuant to paragraph 5 of the Notes, the Company shall mail by first-class mail, or deliver electronically if the Notes are held by any depositary, a notice to each Holder with a copy to the Trustee and the Paying Agent (the “ Change of Control Offer ”) stating:

(i) that a Change of Control Triggering Event has occurred and that such Holder has the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof on the date of purchase, plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest on an Interest Payment Date occurring on or prior to the date of purchase);

(ii) the circumstances and relevant facts regarding such Change of Control Triggering Event;

(iii) the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed or electronically delivered;

(iv) if the notice is mailed or electronically delivered prior to a Change of Control, that the Change of Control Offer is conditioned on the Change of Control occurring; and

(v) the instructions, as determined by the Company, consistent with this Section 4.3, that the Holder must follow in order to have that Holder’s Notes purchased.

(c) Holders electing to have a Note purchased will be required to surrender the Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders will be entitled to withdraw their election not later than one Business Day prior to the purchase date.

 

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(d) On the purchase date, all Notes purchased by the Company under this Section 4.3 shall be delivered by the Company to the Trustee for cancellation, and the Company shall pay the purchase price plus accrued and unpaid interest, if any, to the Holders entitled thereto.

(e) Notwithstanding the foregoing provisions of this Section 4.3, the Company shall not be required to make a Change of Control Offer following a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.3 applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.

(f) A Change of Control Offer may be made in advance of a Change of Control, and may be conditional upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of the making of the Change of Control Offer.

(g) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.3. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.3, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.3 by virtue of its compliance with such securities laws or regulations.

ARTICLE FIVE

AMENDMENT, SUPPLEMENT AND WAIVER

SECTION 5.1 Without Consent of Holders of the Notes . Notwithstanding Section 5.2, the Company, the Subsidiary Guarantors and the Trustee may amend, with respect to the Notes, the Indenture or the Notes without notice to or consent of any Holder:

(1) to cure any ambiguity, omission, defect or inconsistency;

(2) to evidence the succession of another Person to the Company or any Subsidiary Guarantor and the assumption by any such Person of the obligations of the Company or such Subsidiary Guarantor, in each case, in accordance with the provisions of Article Ten of the Base Indenture;

(3) to add any additional Events of Default;

(4) to add to the covenants of the Company or any Subsidiary Guarantor for the benefit of the Holders of all the Notes or to surrender any right or power herein conferred upon the Company;

(5) to add one or more guarantees for the benefit of Holders of the Notes;

 

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(6) to evidence the release of any Subsidiary Guarantor from its Guarantee of the Notes in accordance with Article Thirteen of the Base Indenture (as amended and supplemented by this Supplemental Indenture);

(7) to add collateral security with respect to the Notes or any Guarantee;

(8) to add or appoint a successor or separate Trustee or other agent;

(9) to provide for the issuance of any Additional Notes;

(10) to comply with any requirements in connection with qualifying the Indenture under the Trust Indenture Act;

(11) to comply with the rules of any applicable securities depository;

(12) to provide for uncertificated Notes in addition to or in place of certificated Notes; provided , however , that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code or in a manner such that the uncertificated Notes are as described in Section 163(f)(2)(B) of the Code;

(13) to conform the text of the Indenture, the Notes or any Guarantees to any provision of the Description of Notes set forth in the prospectus supplement dated May 28, 2015 relating to the sale of the Notes, to the extent that such provision in the Description of Notes was intended to set forth, verbatim or in substance, a provision of the Indenture, the Notes or the Guarantees; and

(14) to change any other provision if the change does not adversely affect the interests of any Holder.

After an amendment under this Section 5.1 becomes effective, the Company shall mail or electronically deliver to Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 5.1.

SECTION 5.2 With Consent of Holders of Notes . The Company, the Subsidiary Guarantors and the Trustee may amend the Indenture or the Notes without notice to any Holder but with the written consent of the Holders of at least a majority in aggregate principal amount of the Notes then Outstanding (including consents obtained in connection with a tender offer or exchange for Notes) as each relates to the Notes. However, without the consent of each Holder affected thereby, an amendment may not:

(1) change the Stated Maturity of the principal of, or installment of interest on, any Note;

(2) reduce the principal amount of, or the rate of interest on, any Notes;

(3) reduce any premium, if any, payable on the redemption of any Note or change the date on which any Note may or must be redeemed or repaid (it being

 

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understood that the definitions used in Section 4.3 may be amended or modified at any time prior to the occurrence of a Change of Control with the consent of Holders of at least a majority in principal amount of the Notes then Outstanding);

(4) change the coin or currency in which the principal of, premium, if any, or interest on any Note is payable;

(5) release the Guarantee of any Subsidiary Guarantor except as provided under Article Thirteen of the Base Indenture (as amended and supplemented by this Supplemental Indenture), or make any changes to such Guarantee in a manner adverse to the Holders;

(6) impair the right of any Holder to institute suit for the enforcement of any payment on or after the Stated Maturity of any Note;

(7) reduce the percentage in principal amount of the Outstanding Notes, the consent of whose Holders is required in order to take certain actions;

(8) reduce the requirements for quorum or voting by Holders in the Indenture or the Notes;

(9) modify any of the provisions of the Indenture regarding the waiver of past defaults and the waiver of certain covenants by Holders except to increase any percentage vote required or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of each Holder affected thereby; or

(10) modify any of the above provisions of this Section 5.2.

It shall not be necessary for the consent of the Holders under this Section 5.2 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent approves the substance thereof.

After an amendment under this Section 5.2 becomes effective, the Company shall mail or electronically deliver to Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 5.2.

SECTION 5.3 Compliance with Trust Indenture Act . Every amendment to the Indenture or the Notes shall comply with the Trust Indenture Act as then in effect.

SECTION 5.4 Effect of Consents and Waivers . A consent to an amendment, supplement or a waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. After an amendment or waiver becomes effective with respect to the Notes, it shall bind every Holder.

The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or

 

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required or permitted to be taken pursuant to the Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to take any such action, whether or not such Persons continue to be Holders after such record date.

SECTION 5.5 Notation on or Exchange of Notes . If an amendment changes the terms of a Note, the Trustee may require the Holder of the Note to deliver such Note to the Trustee. The Company shall provide in writing to the Trustee an appropriate notation to be placed on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determine, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment.

SECTION 5.6 Trustee To Sign Amendments . The Trustee shall sign any amendment authorized pursuant to this Article Five if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such amendment the Trustee shall receive indemnity reasonably satisfactory to it and receive, and (subject to Sections 8.01 and 8.03 of the Base Indenture) shall be fully protected in conclusively relying upon an Officers’ Certificate of the Company and an Opinion of Counsel stating that such amendment complies with the provisions of this Article Five, the amendment is authorized or permitted by the Indenture and that such supplemental indenture constitutes the legal, valid and binding obligation of the Company in accordance with its terms subject to customary exceptions.

ARTICLE SIX

GUARANTEES

SECTION 6.1 Guarantee . In accordance with Article Thirteen of the Base Indenture (as amended and supplemented by this Supplemental Indenture), the Notes will be fully, unconditionally and absolutely guaranteed on a senior basis, jointly and severally, by the Subsidiary Guarantors.

SECTION 6.2 Future Subsidiary Guarantors . After the Issue Date, the Company shall cause any Domestic Subsidiary that is not a Subsidiary Guarantor and that becomes a guarantor or a borrower under the Credit Agreement to execute and deliver to the Trustee within 60 days of becoming a guarantor or borrower under the Credit Agreement, a supplemental indenture pursuant to which such Domestic Subsidiary shall become a Subsidiary Guarantor and shall provide a Guarantee of the Obligations with respect to the Notes.

 

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ARTICLE SEVEN

DEFAULTS AND REMEDIES

SECTION 7.1 Events of Default . An “ Event of Default ” occurs with respect to the Notes if:

(1) a default in any payment of interest on any Note when the same becomes due and payable, and such default continues for a period of 30 days;

(2) a default in the payment of the principal or premium, if any, of any Note when the same becomes due and payable at its Stated Maturity, upon optional redemption or otherwise;

(3) the Company or any Subsidiary Guarantor fails to comply with any of its agreements in the Notes or the Indenture (other than those referred to in (1) or (2) above) and such failure continues for 90 days after the notice specified below;

(4) a failure to make any payment at maturity, including any applicable grace period, in respect of Indebtedness of the Company or any of its Subsidiaries (other than Indebtedness of the Company or any of its Subsidiaries owing to the Company or any of its Subsidiaries) in an amount in excess of $35,000,000 or the equivalent thereof in any other currency or composite currency and such failure shall have continued for 30 days after the notice specified below; provided , however , that if any such failure shall cease, or be cured, waived, rescinded or annulled, then the Event of Default by reason thereof shall be deemed likewise to have been cured;

(5) a default with respect to any Indebtedness of the Company or any of its Subsidiaries (other than Indebtedness of the Company or of any of its Subsidiaries owing to the Company or any of its Subsidiaries), which default results in the acceleration of such Indebtedness in an amount in excess of $35,000,000 or the equivalent thereof in any other currency or composite currency without such Indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled for a period of 30 days after written notice specified below; provided , however , that if any such default or acceleration shall be cured, waived, rescinded or annulled then the Event of Default by reason thereof shall be deemed likewise to have been cured;

(6) the Company or any Subsidiary Guarantor pursuant to or within the meaning of any Bankruptcy Law:

(A) commences a voluntary case;

(B) consents to the entry of an order for relief against it in an involuntary case in which it is the debtor;

(C) consents to the appointment of a Custodian of it or for any substantial part of its property; or

 

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(D) makes a general assignment for the benefit of its creditors;

or takes any comparable action under any foreign laws relating to insolvency;

(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(A) is for relief against the Company or any Subsidiary Guarantor in an involuntary case;

(B) appoints a Custodian of the Company or for any substantial part of the property of the Company or any Subsidiary Guarantor; or

(C) orders the winding up or liquidation of the Company or any Subsidiary Guarantor;

(or any similar relief is granted under any foreign laws) and the order, decree or relief remains unstayed and in effect for 60 consecutive days; or

(8) the Guarantee of any Subsidiary Guarantor ceases to be in full force and effect during its term or such Subsidiary Guarantor denies or disaffirms in writing its obligations under the terms of the Indenture or its Guarantee, in each case, other than any such cessation, denial or disaffirmation in connection with the termination of such Guarantee pursuant to the provisions of Article Thirteen of the Base Indenture (as amended and supplemented by this Supplemental Indenture).

The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is 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. Any payment in respect of the Notes made in U.S. dollars as permitted by paragraph 2 of the Notes shall not constitute an Event of Default under the Notes or the Indenture.

A Default with respect to Notes under clauses (3), (4) or (5) of this Section 7.1 is not an Event of Default until the Trustee (by notice to the Company) or the Holders of at least 25% in aggregate principal amount of the Outstanding Notes (by notice to the Company and the Trustee) gives notice of the Default and the Company does not cure such Default within the time specified in said clause (3), (4) or (5) after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default”.

The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officers’ Certificate of any event which with the giving of notice or the lapse of time would become an Event of Default of this Section 7.1, its status and what action the Company is taking or proposes to take with respect thereto.

SECTION 7.2 Acceleration . If an Event of Default with respect to the Notes (other than an Event of Default specified in Section 7.1(6) or 7.1(7) with respect to the Company) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in aggregate

 

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principal amount of the Outstanding Notes by notice to the Company and the Trustee, may, and the Trustee at the request of such Holders, shall, declare the principal of, premium, if any, and accrued and unpaid interest on all the Notes to be due and payable. Upon such a declaration, such principal, premium, if any, and accrued and unpaid interest shall be due and payable immediately. If an Event of Default specified in Section 7.1(6) or 7.1(7) with respect to the Company occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest on all the Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. The Holders of a majority in aggregate principal amount of the Outstanding Notes by notice to the Trustee may rescind an acceleration and its consequences if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or interest that has become due solely because of such acceleration. No such rescission shall affect any subsequent Default or impair any right consequent thereto.

SECTION 7.3 Other Remedies . If an Event of Default with respect to the Notes occurs and is continuing, the Trustee may pursue any available remedy to it under the Indenture to collect the payment of principal of, premium, if any, or interest on the Notes or to enforce the performance of any provision of the Notes or the Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are, to the extent permitted by law, cumulative.

SECTION 7.4 Waiver of Past Defaults . The Holders of no less than a majority in aggregate principal amount of the Notes then Outstanding by notice to the Trustee may, on behalf of the Holders of all Notes, waive any past or existing Default and its consequences except (1) a Default in the payment of the principal of, premium, if any, or interest on the Notes or (2) a Default in respect of a covenant or provision of the Indenture that under Section 5.2 cannot be amended without the consent of each Holder affected. When a Default is waived, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of the Indenture, but no such waiver shall extend to any subsequent or other Default or impair any consequent right.

SECTION 7.5 Control by Majority . Upon provision of security or indemnity satisfactory to the Trustee, the Holders of a majority in aggregate principal amount of the Notes then Outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee with respect to the Notes or of exercising any trust or power conferred on the Trustee. However, the Trustee, which may conclusively rely on opinions of counsel, may refuse to follow any direction that conflicts with law or the Indenture or that the Trustee determines is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability; provided , however , that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.

SECTION 7.6 Limitation on Suits . A Holder of Notes may not pursue any remedy with respect to the Indenture or the Notes unless:

 

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(i) an Event of Default shall have occurred and be continuing and the Holder gives to the Trustee prior written notice stating that an Event of Default is continuing;

(ii) the Holders of at least 25% in aggregate principal amount of the Notes then Outstanding make a written request to the Trustee to pursue the remedy;

(iii) such Holder or Holders offer to the Trustee security or indemnity satisfactory to it against any costs, liabilities or expenses in compliance with such request;

(iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and

(v) the Holders of a majority in aggregate principal amount of the Notes then Outstanding do not give the Trustee a direction inconsistent with the request during such 60-day period.

A Holder may not use the Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder (it being understood that the Trustee shall not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).

SECTION 7.7 Rights of Holders to Receive Payment . Notwithstanding any other provision of the Indenture, the right of any Holder to receive payment of principal of, premium, if any, and interest on the Notes held by such Holder, on or after the respective due dates expressed in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

SECTION 7.8 Collection Suit by Trustee . If an Event of Default specified in Section 7.1(1) or 7.1(2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 8.07 of the Base Indenture.

SECTION 7.9 Trustee May File Proofs of Claim . The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company, its creditors or any other obligor upon the Notes, or any of their creditors or the property of the Company or such other obligor or their creditors and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 8.07 of the Base Indenture.

 

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SECTION 7.10 Priorities . Any money or other property collected by the Trustee pursuant to this Article Seven, or any money or other property otherwise distributable in respect of the Company’s obligations under the Indenture, shall be applied in the following order:

FIRST: to the Trustee (including any predecessor Trustee) for amounts due under Section 8.07 of the Base Indenture;

SECOND: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and

THIRD: to the Company.

The Trustee may, upon prior written notice to the Company, fix a record date and payment date for any payment to Holders pursuant to this Section 7.10. At least 15 days before such record date, the Company shall mail or electronically deliver to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.

SECTION 7.11 Undertaking for Costs . In any suit for the enforcement of any right or remedy under the Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 7.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 7.7 or a suit by Holders of more than 10% in aggregate principal amount of the Outstanding Notes.

SECTION 7.12 Waiver of Stay or Extension Laws . The Company (to the extent it may lawfully do so) shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of the Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.

SECTION 7.13 Restoration of Rights and Remedies . If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and such Holder shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of such Trustee and such Holder shall continue as though no such proceeding had been instituted.

 

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ARTICLE EIGHT

APPLICATION OF SUPPLEMENTAL INDENTURE

AND CREATION OF THE INITIAL NOTES

SECTION 8.1 Application of This Supplemental Indenture . Notwithstanding any other provision of this Supplemental Indenture, the provisions of this Supplemental Indenture, including as provided in Section 8.2 below, are expressly and solely for the benefit of the Trustee and the Holders. The Initial Notes constitute a series of Securities as provided in Section 3.01 of the Base Indenture. Unless otherwise expressly specified, references in this Supplemental Indenture to specific Article numbers or Section numbers refer to Articles and Sections contained in this Supplemental Indenture, and not the Base Indenture or any other document.

SECTION 8.2 Effect of Supplemental Indenture . With respect to the Notes only, the Base Indenture shall be supplemented pursuant to Section 11.01(c) thereof to establish the form and terms of the Notes as set forth in this Supplemental Indenture, including, without limitation, as follows:

(i) Definitions . The definition of each term set forth in Section 1.01 of the Base Indenture is with respect to the Notes deleted and replaced in its entirety by the definition ascribed to such term in Article One of this Supplemental Indenture to the extent any such term is defined in both the Base Indenture and this Supplemental Indenture.

(ii) Provisions of General Application; Security Forms and Transfer and Exchange . The provisions of Article Two and Article Three of the Base Indenture are, with respect to the Notes, hereby supplemented by and shall be in addition to the provisions of Article Two of this Supplemental Indenture.

(iii) Redemption . The provisions of Article Four of the Base Indenture are, with respect to the Notes, hereby supplemented by and shall be in addition to the provisions of Article Three of this Supplemental Indenture; provided that, Section 4.03 of the Base Indenture is, with respect the Notes, deleted and replaced in its entirety by Section 3.3 of this Supplemental Indenture.

(iv) Covenants . The provisions of Article Twelve of the Base Indenture are, with respect to the Notes, hereby supplemented by and shall be in addition to the provisions of Article Four of this Supplemental Indenture. In addition, Section 12.04 of the Base Indenture is, with respect to the Notes, deleted and replaced by the following: “The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company (which, until the Company shall otherwise notify the Trustee, shall be deemed to be the calendar year) ending after the date hereof, an Officers’ Certificate signed by its principal executive officer, principal financial officer or principal accounting officer, which Officers’ Certificate shall comply with the provisions of Section 314 of the Trust Indenture Act, stating whether or not to the knowledge of the signers thereof any Default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) occurred during the previous fiscal year,

 

26


specifying all such Defaults and the nature and status thereof of which they may have knowledge.”

(v) Discharge of Indenture; Defeasance . The words “U.S. Dollars in an amount sufficient” in Section 6.01(a) of the Base Indenture is, with respect to the Notes, deleted and replaced by the following: “euros in an amount sufficient or Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms shall provide cash at such times and in such amounts as shall be (solely with respect to Government Obligations, in the written opinion delivered to the Trustee of a nationally recognized firm of independent accountants) sufficient, or a combination thereof sufficient”. Section 6.01(b)(ii) of the Base Indenture is, with respect to the Notes, deleted and replaced in its entirety by the following: “the operation of Sections 7.01(d), 7.01(e), 7.01(f) and 7.01(i) of the Base Indenture and Sections 4.1, 4.2 and 4.3 of this Supplemental Indenture (“ covenant defeasance option ”)”. The words “U.S. Dollars or U.S. Government Obligations” in Section 6.02(i) of the Base Indenture is, with respect to the Notes, deleted and replaced by the following: “euros or Government Obligations”. All other references to U.S. Government Obligations in Article Six are, with respect to the Notes, deleted and replaced by the following: “Government Obligations”.

(vi) Amendment, Supplement and Waiver . The provisions of Article Eleven (other than Section 11.05) of the Base Indenture are, with respect to the Notes, deleted and replaced in their entirety by the provisions of Article Five of this Supplemental Indenture.

(vii) Guarantees . The provisions of Article Thirteen of the Base Indenture are, with respect to the Notes, hereby supplemented by and shall be in addition to the provisions of Article Six of this Supplemental Indenture. In addition, Section 13.06(1) of the Base Indenture is, with respect to the Notes, deleted and replaced by the following: “upon the termination for any reason of the obligations of such Subsidiary Guarantor as a guarantor or borrower under the Credit Agreement (including, without limitation, pursuant to the terms of the Credit Agreement, upon agreement of the requisite lenders under the Credit Agreement or upon the termination of the Credit Agreement or upon the replacement thereof with a credit facility not providing for such Subsidiary Guarantor to be a guarantor or a borrower thereunder)”.

(viii) Default and Remedies . The provisions of Article Seven of the Base Indenture are, with respect to the Notes, deleted and replaced in their entirety by the provisions of Article Seven of this Supplemental Indenture.

To the extent that the provisions of this Supplemental Indenture (including those referred to in clauses (i) through (viii) above) conflict with any provision of the Base Indenture, the provisions of this Supplemental Indenture shall govern and be controlling, with respect to the Notes. Except as set forth in this Supplemental Indenture, the provisions of the Base Indenture shall remain in full force and effect with respect to the Notes.

 

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ARTICLE NINE

MISCELLANEOUS

SECTION 9.1 The Supplemental Indenture . The Base Indenture, as amended and modified by this Supplemental Indenture, hereby is in all respects ratified, confirmed and approved. This Supplemental Indenture shall be construed in connection with and as part of the Base Indenture.

SECTION 9.2 Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.

SECTION 9.3 Effect of Headings and Table of Contents . The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

SECTION 9.4 Governing Law . This Supplemental Indenture and the Notes will be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 9.5 No Representation . The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.

[ Signatures on following page ]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed as of the date first above written.

 

EXPEDIA, INC., a Delaware corporation,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
EXPEDIA, INC., a Washington corporation,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
TRAVELSCAPE, LLC,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
HOTWIRE, INC.,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President

[ Signature Page to Fourth Supplemental Indenture ]


HRN 99 HOLDINGS, LLC,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Manager
INTERACTIVE AFFILIATE NETWORK, LLC,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
EXPEDIA, INC., a Washington corporation, on behalf of HOTELS.COM GP, LLC,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
HOTELS.COM, L.P.,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
EAN.COM, L.P.,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer

[ Signature Page to Fourth Supplemental Indenture ]


EGENCIA LLLC,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
CLASSIC VACATIONS, LLC,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
WWTE, INC.,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer
CARRENTALS.COM, INC.,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President
EXPEDIA, INC., a Washington Corporation, on behalf of CRUISE, LLC,
By: /s/ Mark D. Okerstrom
Name: Mark D. Okerstrom
Title: Executive Vice President and Chief Financial Officer

[ Signature Page to Fourth Supplemental Indenture ]


THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
By: /s/ Teresa Petta
Name: Teresa Petta
Title: Vice President

[ Signature Page to Fourth Supplemental Indenture ]


EXHIBIT A

FORM OF 2.500% SENIOR NOTE DUE 2022

(Face of Note)

2.500% Senior Note due 2022

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V. (“EUROCLEAR”), OR CLEARSTREAM BANKING, SOCIETE ANONYME (“CLEARSTREAM”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ITS AUTHORIZED NOMINEE, OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM (AND ANY PAYMENT HEREON IS MADE TO ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.] 1

 

1   These paragraphs should be included only if the Note is a Global Note.


EXPEDIA, INC.

2.500% SENIOR NOTE DUE 2022

 

No.          CUSIP:
ISIN:
Common Code:

Expedia, Inc. promises to pay to The Bank of New York Depository (Nominees) Limited, as nominee of The Bank of New York Mellon, London Branch, as common depositary for Euroclear Bank, S.A./N.V. (“ Euroclear ”) and Clearstream Banking, société anonyme (“ Clearstream”) , the principal sum of             euros (€            ) on June 3, 2022 (the “ Maturity Date ”) [as such amount may be increased or decreased as indicated on the attached Schedule of Exchanges of Interests in the Global Note] 2 .

Interest Payment Date: June 3.

Record Date: May 20 (or, if the Notes are represented by one or more Global Notes, the close of business on the business day (for this purpose a day on which Clearstream and Euroclear are open for business) immediately preceding the Interest Payment Date).

Additional provisions of this Note are set forth on the other side of this Note.

 

2   Add for Global Note.


IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

Dated:                     

 

EXPEDIA, INC.
By:  
Name:
Title:

 

Attest:
 

 

Name:
Title:


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture:

Dated:                     

THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee

By:  
Authorized Signatory


(Reverse of Note)

2.500% Senior Note due 2022

EXPEDIA, INC.

Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

1. Interest . Expedia, Inc., a Delaware corporation (together with its successors and assigns under the Indenture hereinafter referred to, being herein called the “ Company ”), promises to pay interest on the principal amount of this Note at the rate of 2.500% per annum. The Company shall pay interest annually on June 3 of each year (each such date, an “ Interest Payment Date ”), commencing on                     . 3 Interest on the Notes shall accrue from                     , 4 or from the most recent Interest Payment Date to or for which interest has been paid or duly provided. Interest shall be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Notes (or                      4 if no interest has been paid on the Notes), to but excluding the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.

2. Method of Payment . By no later than 11:00 a.m. (London time) on the date on which any principal of, premium, if any, and interest on any Note is due and payable or by such earlier time as may be agreed to with the Paying Agent, the Company shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal, premium, if any, and/or interest. The Company shall pay interest due on an Interest Payment Date (except Defaulted Interest) to the Persons who are Holders at the close of business on the May 20 immediately preceding the Interest Payment Date (whether or not such day is a Business Day), or, if the Notes are represented by one or more Global Notes, the close of business on the business day (for this purpose a day on which Clearstream and Euroclear are open for business) immediately preceding the Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments.

Payments of principal of, premium, if any, and interest on the Notes shall be payable in euro. If euro are unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control (including the dissolution of the euro) or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes shall be made in U.S. dollars until the euro is again available to the Company or so used. The amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S.

 

3   With respect to an Initial Note, June 3, 2016. With respect to an Additional Note, to be determined.
4  

With respect to an Initial Note, June 3, 2015. With respect to an Additional Note, to be determined.


Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the then most recent U.S. dollar/ euro exchange rate available on or prior to the second Business Day prior to the relevant payment date as determined by the Company in its sole discretion. Any payment in respect of the Notes so made in U.S. dollars will not constitute an Event of Default under the Notes or the Indenture. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest) shall be made by the transfer of immediately available funds to the accounts specified by Depositary. The Company may make all payments in respect of a certificated Note (including principal, premium, if any, and interest) by mailing a check to the registered address of each Holder thereof.

If any interest or other payment date of a Note falls on a day that is not a Business Day, the required payment of principal, premium, if any, and interest will be made on the next succeeding Business Day as if made on the date that the payment was due, and no interest shall accrue on that payment for the period from and after that interest or other payment date, as the case may be, to the date of that payment on the next succeeding Business Day.

“euro” and “€” means the lawful currency of the member states of the European Monetary Union that have adopted the single currency in accordance with the treaty establishing the European Community, as amended by the Treaty on European Union.

3. Paying Agent and Registrar . The Bank of New York Mellon, London Branch, at its corporate trust office located at One Canada Square, London E14 5AL, England, shall initially act as Paying Agent, The Bank of New York Mellon Trust Company, N.A. shall initially act as Securities Registrar and the Place of Payment for the Notes shall be the City of London, England. The Company may appoint and change any Paying Agent or Registrar without notice to any Holder. The Company or any of its domestically organized wholly owned Subsidiaries may act as Paying Agent.

4. Indenture . The Company issued the Notes under an Indenture dated as of August 18, 2014 (the “ Base Indenture ”), as supplemented and amended by the Fourth Supplemental Indenture, dated as of June 3, 2015 (the “ Fourth Supplemental Indenture ” and the Base Indenture, as so supplemented and amended, the “ Indenture ”), among the Company, the Subsidiary Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of those terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.

The Notes are senior unsecured obligations of the Company. This Note is one of the Initial Notes referred to in the Indenture. The Notes include the Initial Notes issued on the Issue Date and any Additional Notes issued in accordance with Section 2.3 of the Fourth Supplemental Indenture. The Initial Notes and any Additional Notes are treated as a single class of securities under the Indenture (including for purposes of redemptions). The Indenture imposes certain

 

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limitations on the ability of the Company and its Subsidiaries to create Liens, enter into sale and lease-back transactions and enter into mergers and consolidations.

5. Optional Redemption . Prior to March 3, 2022 (the date that is three months prior to the Maturity Date of the Notes), the Notes shall be redeemable, in whole or in part, from time to time, at the option of the Company, at a redemption price equal to the greater of (i) 100% of the principal amount of such Notes and (ii) the sum of the present values of the Remaining Scheduled Payments thereon (exclusive of interest accrued to the date of redemption) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 40 basis points, plus, in each case, accrued and unpaid interest thereon to but excluding the redemption date.

On or after March 3, 2022 (the date that is three months prior to the Maturity Date of the Notes), the Notes shall be redeemable, in whole or in part, from time to time, at the option of the Company, at a redemption price equal to 100% of the principal amount of such Notes, plus accrued and unpaid interest thereon to but excluding the Redemption Date.

Except as set forth above and in paragraph 6, the Notes shall not be redeemable at the election of the Company prior to maturity.

Notice of redemption pursuant to this paragraph 5 will be mailed, or delivered electronically if held by any depositary, at least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at its registered address. Notes in denominations larger than €100,000 principal amount may be redeemed in part but only in whole multiples of €1,000. The principal amount of a Note remaining after a redemption in part shall be €100,000 or integral multiples of €1,000 in excess thereof. Notes of €100,000 or less may be redeemed in whole and not in part. If money sufficient to pay the redemption price of and accrued interest on all Notes (or portions thereof) to be redeemed on the Redemption Date is deposited with the Paying Agent on or before 11:00 a.m. (London time) on the Redemption Date or by such earlier time as may be agreed to with the Paying Agent (or, if the Company or any of its Subsidiaries is the Paying Agent, such money is segregated and held in trust) and certain other conditions are satisfied, on and after the redemption date interest shall cease to accrue on such Notes (or such portions thereof) called for redemption.

The Notes shall not be entitled to the benefit of any sinking fund.

6. Redemption for Tax Reasons . The Company may redeem the Notes at its option, in whole but not in part, at a redemption price equal to 100% of the principal amount, together with any accrued and unpaid interest on the Notes to, but excluding, the Redemption Date, at any time, for certain tax reasons as set forth in Section 3.2 of the Fourth Supplemental Indenture.

7. Put Provisions . Upon a Change of Control Triggering Event, subject to limited exceptions, any Holder of Notes will have the right to cause the Company to repurchase all or any part (in an aggregate principal amount equal to €100,000 or an integral multiple of €1,000 in excess thereof) of the Notes of such Holder at a repurchase price equal to 101% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest to the date of repurchase (subject to the right of Holders of record on the relevant record date to receive interest due on an

 

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Interest Payment Date occurring on or prior to the date of purchase) as provided in, and subject to the terms of, the Indenture.

8. Denominations; Transfer; Exchange . The Notes are in fully registered form without coupons in denominations of principal amount of €100,000 and integral multiples of €1,000 in excess thereof. A Holder may register, transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) for a period beginning 15 days before the mailing or electronic delivery of a notice of redemption of Notes to be redeemed and ending on the date of such mailing or electronic delivery.

9. Persons Deemed Owners . The registered holder of this Note shall be treated as the owner of it for all purposes.

10. Unclaimed Money . If money for the payment of principal, premium, if any, or interest remains unclaimed for two years after the date of payment of principal, premium, if any, and interest, the Trustee or Paying Agent shall pay the money back to the Company at its request. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.

11. Defeasance . Subject to certain conditions set forth in the Indenture, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee euro, Government Obligations or both for the payment of principal of, premium, if any, and interest on the Notes to redemption or maturity, as the case may be.

12. Guarantees. The Company’s obligation to pay principal, premium, if any, and interest with respect to the Notes is unconditionally guaranteed on a senior basis, jointly and severally, by the Subsidiary Guarantors pursuant to Article Thirteen of the Base Indenture (as amended and supplemented by the Fourth Supplemental Indenture).

13. Amendment, Waiver . Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Notes may be amended with the written consent of the Holders of at least a majority in principal amount of the Outstanding Notes and (ii) any default or noncompliance with any provision of the Indenture or the Notes may be waived with the written consent of the Holders of a majority in principal amount of the Outstanding Notes (including consents obtained in connection with a tender offer or exchange for Notes). However, the Indenture requires the consent of each Holder that would be affected for certain specified amendments or modifications of the Indenture and the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company, the Subsidiary Guarantors and the Trustee may amend the Indenture or the Notes to cure any ambiguity, omission, defect or inconsistency, or to evidence the succession of another Person to the Company or any Subsidiary Guarantor and the assumption by any such Person of the obligations of the Company or such Subsidiary Guarantor in accordance with Article Ten of the Base Indenture (as amended and supplemented by the

 

4


Supplemental Indenture), or to add any additional Events of Default, or to add to the covenants of the Company or any Subsidiary Guarantor or surrender rights and powers conferred on the Company, or to add one or more guarantees for the benefit of the Holders of the Notes, or to evidence the release of any Subsidiary Guarantor from its Guarantee in accordance with the Indenture, or to add collateral security with respect to the Notes or any Guarantee, or to add or appoint a successor or separate trustee or other agent, or to provide for the issuance of Additional Notes, or to comply with any requirements in connection with qualifying the Indenture under the Trust Indenture Act, or to comply with the rules of any applicable securities depository, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to conform the text of the Indenture, the Notes or any Guarantees to any provision of the Description of Notes set forth in the prospectus supplement dated May 28, 2015 relating to the sale of the Notes, to the extent that such provision in the Description of Notes was intended to set forth, verbatim or in substance, a provision of the Indenture, the Notes or the Guarantees, or to change any other provision if the change does not adversely affect the interests of any Holder.

14. Defaults and Remedies . Under the Indenture, Events of Default include (i) default for 30 days in payment of interest on the Notes; (ii) default in payment of principal, or premium, if any, on the Notes at its Stated Maturity, upon optional redemption or otherwise; (iii) failure by the Company or any Subsidiary Guarantor to comply with any covenant or agreement in the Indenture or the Notes, subject to notice and lapse of time; (iv) failure to make any payment at maturity, including any applicable grace period, in respect of Indebtedness of the Company or any of its Subsidiaries (other than Indebtedness of the Company or of any of its Subsidiaries owing to the Company or any of its Subsidiaries) with an aggregate principal amount then outstanding in excess of $35,000,000, subject to certain conditions; (v) default in respect of other Indebtedness of the Company or any of its Subsidiaries (other than Indebtedness of the Company or of any of its Subsidiaries owing to the Company or any of its Subsidiaries) in an amount in excess of $35,000,000, which results in the acceleration of such Indebtedness, subject to certain conditions; (vi) certain events of bankruptcy or insolvency involving the Company or any Subsidiary Guarantor; and (vii) the Guarantee of any Subsidiary Guarantor ceases to be in full force and effect during its term or any Subsidiary Guarantor denies or disaffirms in writing its obligations under the Indenture or its Guarantee, other than in connection with the termination of such Guarantee pursuant to the provisions of the Indenture.

If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes may declare all the Notes to be due and payable immediately. Certain events of bankruptcy or insolvency involving the Company are Events of Default which will result in the Notes being due and payable immediately upon the occurrence of such Events of Default.

Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of the Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal, premium, if any, or interest) if it in good faith determines that withholding notice is not opposed to their interest.

 

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15. Trustee Dealings with the Company . Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company and may otherwise deal with the Company with the same rights it would have if it were not Trustee.

16. No Recourse Against Others . A director, officer, employee or stockholder (other than the Company), as such, of the Company shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.

17. Authentication . This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent acting on its behalf) manually or by facsimile signs the certificate of authentication on the other side of this Note.

18. Abbreviations . Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (tenants in common), TEN ENT (tenants by the entirety), JT TEN (joint tenants with rights of survivorship and not as tenants in common), CUST (custodian) and U/G/M/A (Uniform Gift to Minors Act).

19. CUSIP and ISIN Numbers . The Company has caused CUSIP and ISIN numbers and/or other similar numbers to be printed on the Notes and has directed the Trustee to use CUSIP and ISIN numbers and/or other similar numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

20. Governing Law . This Note shall be governed by, and construed in accordance with, the laws of the State of New York.

 

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ASSIGNMENT FORM

To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

 

and irrevocably appoint

 

to transfer this Note on the books of the Company. The agent may substitute another to act for him.

Date:                     

 

Your Signature:

 

(Sign exactly as your name appears on the

face of this Note)

Signature guarantee:                                         

(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Company pursuant to Section 4.3 of the Fourth Supplemental Indenture (Change of Control Triggering Event), check the box below:

[    ]

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.3 of the Fourth Supplemental Indenture (Change of Control Triggering Event), state the amount you elect to have purchased:

 

                    

 

Date:                                  Your Signature:    
    (Sign exactly as your name appears on the Note)

 

    Tax Identification Number:    

Signature guarantee:                             

(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)


SCHEDULE A

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE

The following exchanges of a part of this Global Note for other 2.500% Senior Notes due 2022 have been made:

 

Date of Exchange

   Amount of
Decrease in
Principal
Amount of this
Global Note
   Amount of
Increase in
Principal
Amount of this
Global Note
   Principal
Amount of this
Global Note
Following Such
Decrease (or
Increase)
   Signature of
Authorized
Officer of
Trustee or Note
Custodian

EXHIBIT 5.1

[LETTERHEAD OF WACHTELL, LIPTON, ROSEN & KATZ]

June 3, 2015

Expedia, Inc.

333 108th Avenue N.E.

Bellevue, WA 98004

Re: Expedia, Inc.

Ladies and Gentlemen:

We have acted as special counsel to Expedia, Inc., a Delaware corporation (the “Company”), in connection with the registration, pursuant to the registration statement on Form S-3 (File No. 333-197974) (the “Registration Statement”), filed with the U.S. Securities and Exchange Commission (the “Commission”) on August 8, 2014, as amended on April 29, 2015, under the U.S. Securities Act of 1933, as amended (the “Act”), and the prospectus supplement, dated May 28, 2015 and filed with the Commission on June 1, 2015, of the offer, issuance and sale by the Company of an aggregate principal amount of €650,000,000 of the Company’s 2.500% Senior Notes due 2022 (the “Notes”) and the related guarantees (the “Guarantees”) by the guarantors set forth in Schedule A hereto (the “Guarantors”). The Notes and Guarantees were issued pursuant to the Indenture dated as of August 18, 2014 (the “Base Indenture”), as supplemented and amended by the Fourth Supplemental Indenture, dated as of the date hereof, among the Company, the Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) (the “Supplemental Indenture,” and together with the Base Indenture, the “Indenture”). The Base Indenture has been filed as Exhibit 4.1 to the current report on Form 8-K filed by the Company on August 18, 2014, and the Supplemental Indenture has been filed as Exhibit 4.1 to the current report on Form 8-K filed by the Company on the date hereof (the “Current Report”). The Notes were sold by the Company pursuant to an underwriting agreement among the Company, the Guarantors and the Underwriters named therein (the “Agreement”), which has been filed as Exhibit 1.1 to the Current Report.

We have examined originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or appropriate for the purposes of this letter. The Notes and the Indenture are referred to herein as the “Transaction Documents.” We have also conducted such investigations of fact and law as we have deemed necessary or advisable for purposes of this letter. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies and the legal capacity of all individuals executing such documents. As to any facts material to this letter that we did not independently establish or verify, we have, with your consent, relied upon the statements, certificates and representations of officers and other representatives of parties to the Transaction Documents and of the Company and the Guarantors. We have also assumed the valid authorization, execution and delivery of the Transaction Documents by each party thereto (except with respect to HRN 99 Holdings, LLC) , and we have assumed that each party thereto (except with respect to HRN 99


Expedia, Inc.

June 3, 2015

 

Holdings, LLC) (in the case of parties which are not natural persons) has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, that each party thereto has the legal capacity, power and authority to perform its obligations thereunder and that the Indenture constitutes the valid and binding obligation of the Trustee, enforceable against it in accordance with its terms. We have also assumed that, except with respect to the Relevant Laws (as defined below), the execution, delivery and performance by each of the Company and the Guarantors of the Transaction Documents to which it is a party have been duly authorized by all necessary action (corporate or otherwise) (except with respect to HRN 99 Holdings, LLC) and do not contravene its respective certificate or articles of incorporation, limited liability company agreement, partnership agreement, bylaws or other organizational documents; except with respect to Relevant Laws, violate any law, rule, order or regulation applicable to it; or result in any conflict with, or breach of any agreement or document binding on it. In addition, enforceability may be subject to public policy considerations. Furthermore, the manner in which any particular issue relating to the opinions set forth below would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it.

We are members of the Bar of the State of New York, and we have not considered, and we express no opinion as to, the laws of any jurisdiction other than the laws of the State of New York that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Company, the Guarantors, the Transaction Documents or the transactions governed by the Transaction Documents and the federal securities laws of the United States of America, in each case as in effect on the date hereof (the “Relevant Laws”). Without limiting the generality of the foregoing definition of Relevant Laws, the term “Relevant Law” does not include any law, rule or regulation that is applicable to the Company, the Guarantors, the Transaction Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Transaction Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.

Insofar as the opinions expressed herein relate to or are dependent upon matters governed by (i) the laws of the State of Nevada, we have relied upon the letter dated the date hereof of Holland & Hart, LLP, special counsel to the Guarantors incorporated or organized in the State of Nevada; (ii) the laws of the State of Texas, we have relied upon the letter dated the date hereof of Jones Day, special counsel to the Guarantors incorporated or organized in the State of Texas; (iii) the laws of the State of Delaware, we have relied upon the letter dated the date hereof of Morris, Nichols, Arsht & Tunnell LLP, special counsel to the Company and the Guarantors incorporated or organized in the State of Delaware and (iv) the laws of the State of Washington, we have relied upon the letter dated the date hereof of Perkins Coie LLP, special counsel to the Guarantor incorporated in the State of Washington, in each case of clauses (i) through (iv), which are filed as exhibits to the Current Report.

 

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Expedia, Inc.

June 3, 2015

 

We express no opinion with respect to the enforceability of (i) consents to, or restrictions upon, judicial relief or jurisdiction or venue; (ii) waivers of rights or defenses with respect to stay, extension or usury laws; (iii) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights; (iv) broadly or vaguely stated waivers of rights; (v) provisions authorizing or validating conclusive or discretionary determinations; (vi) restrictions upon non-written modifications and waivers; (vii) severability clauses; and (viii) provisions for liquidated damages, default interest, late charges, monetary penalties, forfeitures, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty.

Based upon the foregoing, and subject to the qualifications set forth in this letter, it is our opinion that,

(a) the Notes constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally and by general equitable principles (whether considered in a proceeding in equity or at law); and

(b) the Guarantees constitute valid and legally binding obligations of each Guarantor, enforceable in accordance with their terms, except as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally and by general equitable principles (whether considered in a proceeding in equity or at law).

We hereby consent to the filing of a copy of this letter as an exhibit to the Registration Statement and to the use of our name in the prospectus forming a part of the Registration Statement under the caption “Legal Matters.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act and the rules and regulations thereunder. This letter speaks as of its date, and we undertake no (and hereby disclaim any) obligation to update this letter.

 

Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz

 

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Schedule A

Expedia, Inc. (Washington)

CarRentals.com, Inc. (Nevada)

Classic Vacations, LLC (Nevada)

Cruise, LLC (Washington)

EAN.com, LP (Delaware)

Egencia LLC (Nevada)

Hotels.com, L.P. (Texas)

Hotels.com GP, LLC (Texas)

Hotwire, Inc. (Delaware)

HRN 99 Holdings, LLC (New York)

Interactive Affiliate Network, LLC (Delaware)

Travelscape, LLC (Nevada)

WWTE, Inc. (Nevada)

 

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EXHIBIT 5.2

 

LOGO

June 3, 2015

Expedia, Inc.

333 108th Avenue N.E.

Bellevue, Washington 98004

 

  Re: Registration Statement on Form S-3

Ladies and Gentlemen:

We are acting as special Nevada counsel for Travelscape, LLC, a Nevada limited liability company (“ Travelscape ”), WWTE, Inc., a Nevada corporation (“ WWTE ”), Egencia LLC, a Nevada limited liability company (“ Egencia ”), Classic Vacations, LLC, a Nevada limited liability company (“ Classic Vacations ”), and CarRentals.com, Inc., a Nevada corporation (“ CarRentals ”, and together with Travelscape, WWTE, Egencia and Classic Vacations, the “ Nevada Parties ”), in connection with the Registration Statement on Form S-3, as amended, as supplemented by the Prospectus Supplement dated May 28, 2015 (File No. 333-197974) (the “ Registration Statement ”) filed by Expedia, Inc., a Delaware corporation (“ Expedia ”), relating to the registration under the Securities Act of 1933, as amended (the “ Act ”), of the issuance and sale of €650,000,000 principal amount of Expedia’s 2.500% Senior Notes due 2022, pursuant to which the Nevada Parties will execute, each as a subsidiary guarantor of Expedia’s obligations with respect to the foregoing Notes, a Fourth Supplemental Indenture dated as of June 3, 2015 (the “ Fourth Supplemental Indenture ”), and guarantees (“ Guarantees ”) of the foregoing Notes.

We have reviewed and are familiar with: (a) the Articles of Incorporation, Articles of Organization, Bylaws, Operating Agreements and other organizational documents of the Nevada Parties (as the same may have been amended or amended and restated), in each case certified to us by an officer or member of the Nevada Parties as being the true and correct copies of same, (b) Resolutions adopted by the Boards of Directors or Managing Members of the Nevada Parties, executed by authorized signatories of the Nevada Parties and certified to us by an officer or member of the Nevada Parties as being true and correct and having not been modified or rescinded since such date, (c) a certificate of an officer or member of the Nevada Parties representing certain factual matters in connection with the approval, execution and delivery of the Fourth Supplemental Indenture, which representations we have assumed the validity of and relied on, (d) Secretary’s Certificates for the Nevada Parties, which we have assumed the validity of and relied on, and (e) such other matters as we have deemed necessary for this opinion.

In making our examination, we have assumed that all signatures on documents examined by us are genuine, the conformity with the original documents of all documents submitted to us as certified, conformed or photostatic copies, the legal capacity of all natural persons, and the accuracy and completeness of all other information provided to us by Expedia and the Nevada Parties, as applicable, during the course of our investigations, on which we have relied in issuing the opinions expressed below. In addition, we have assumed that the persons identified to us as officers and directors or members of the Nevada Parties as of particular dates were actually serving in such capacities on such dates.

Holland & Hart LLP Attorneys at Law

Phone (775) 327-3000 Fax (775) 786-6179 www.hollandhart.com

5441 Kietzke Lane Second Floor Reno, Nevada 89511

Aspen Billings Boise Boulder Carson City Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington, D.C


LOGO

Expedia, Inc.

June 3, 2015

Page 2

 

Based upon the foregoing, we are of the opinion that (i) each of the Nevada Parties is validly existing and in good standing under the laws of the State of Nevada, and (ii) each of the Nevada Parties has the corporate or limited liability company power and authority to execute, deliver and perform the Fourth Supplemental Indenture and the Guarantees. This opinion is limited to matters governed by the laws of the State of Nevada, and to the extent that any of the foregoing matters are deemed to be governed by the laws of any other state, we render no opinion with respect thereto.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, as amended, and any additional amendments thereto including any and all post-effective amendments, and to the use of our name under the caption “Legal Matters” in the prospectus forming a part of the Registration Statement and any prospectus supplements relating thereto. In addition, we consent to the reliance by Wachtell, Lipton, Rosen & Katz as to matters of Nevada law upon this opinion letter in connection with the rendering of its opinion of even date herewith concerning the Guarantees, but only to the extent of the opinions specifically set forth herein. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

 

Sincerely,
/s/ Holland & Hart LLP

EXHIBIT 5.3

June 3, 2015

Expedia, Inc.

333 108 th Avenue N.E.

Bellevue, WA 98004

 

  Re: Registration Statement on Form S-3 and Related Note Offering (as defined below)

Ladies and Gentlemen:

We have acted as special Texas counsel for Hotels.com, L.P., a Texas limited partnership (the “ Texas L.P. ”), and Hotels.com GP, LLC, a Texas limited liability company (the “ Texas LLC ”), in connection with the Post-Effective Amendment No. 1 (the “Post-Effective Amendment”) to the Registration Statement on Form S-3 (Commission File No. 333-197974) (as amended by the Post-Effective Amendment, the “ Registration Statement ”) and the proposed issuance (the “ Note Offering ”) relating thereto of up to €650,000,000 aggregate principal amount of 2.5000% Senior Notes due 2022 (the “ Notes ”) of Expedia, Inc., a Delaware corporation (the “ Company ”), and the related Subsidiary Guarantees (as defined below) of the Subsidiary Guarantors (as defined below) listed in the Registration Statement, pursuant to the Indenture referred to below. The Notes will be issued pursuant to a Fourth Supplemental Indenture, dated as of June 3, 2015 (as amended, supplemented or otherwise modified through the date hereof, the “ Indenture ”), by and among the Company, Texas L.P., Texas LLC (together with Texas L.P., the “ Covered Guarantors ” and each, a “ Covered Guarantor ”), the other Subsidiary Guarantors party thereto (collectively with the Covered Guarantors, the “ Subsidiary Guarantors ”), and The Bank of New York Mellon Trust Company, N.A., as trustee. The Notes will be guaranteed (each, a “ Subsidiary Guarantee ”) on a joint and several basis by the Subsidiary Guarantors.

In connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinions.

Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that:

1. The Texas L.P. is a limited partnership existing and in good standing under the laws of the State of Texas, and the Texas LLC is a limited liability company existing and in good standing under the laws of the State of Texas.

2. The execution and delivery of the Indenture by each Covered Guarantor has been authorized by all necessary limited partnership action or limited liability company action, as applicable, of such Covered Guarantor.


Expedia, Inc.

June 3, 2015

Page 2

 

3. The Subsidiary Guarantee of the Notes by each Covered Guarantor has been authorized by all necessary limited partnership action or limited liability company action, as applicable, of such Covered Guarantor.

The opinions set forth above are subject to the following limitations, qualifications and assumptions:

The opinions expressed herein with respect to the existence and/or good standing of the Covered Guarantors are based solely on certificates and records of public officials as to factual matters and legal conclusions set forth therein.

For purposes of the opinions expressed herein, we have assumed that each party to the Indenture, other than the Covered Guarantors, has authorized, executed and delivered the Indenture and that the Indenture is the valid, binding and enforceable obligation of each such party.

The opinions expressed herein are limited by (i) bankruptcy, insolvency, reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar laws, and related regulations and judicial doctrines from time to time in effect relating to or affecting creditors’ rights and remedies generally, and (ii) general equitable principles and public policy considerations, whether such principles and considerations are considered in a proceeding at law or in equity.

As to facts material to the opinions and assumptions expressed herein, we have relied upon written statements and representations of officers and other representatives of the Covered Guarantors. The opinions expressed herein are limited to the laws of the State of Texas as currently in effect, and we express no opinion as to the effect of or the laws of any other jurisdiction on the opinions expressed herein.

We hereby consent to the filing of this opinion as Exhibit 5.3 to the Registration Statement and to the reference to Jones Day under the caption “Legal Matters” in the prospectus constituting a part of such Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

 

Very truly yours,
/s/ Jones Day

EXHIBIT 5.4

June 3, 2015

Expedia, Inc.

13810 SE Eastgate Way, Suite 400

Bellevue, WA 98005

 

  Re: The Transaction Documents (as defined below)

Ladies and Gentlemen:

We have acted as special Delaware counsel to the Delaware Corporations (as identified and defined in Annex A hereto), the Delaware LLC (as identified and defined in Annex B hereto) and the Delaware LP (as identified and defined in Annex C hereto) (the Delaware Corporations, the Delaware LLC and the Delaware LP are hereinafter collectively referred to as the “Delaware Companies” and each is individually referred to as a “Delaware Company”), in connection with certain matters of Delaware law relating to:

 

  I. the Underwriting Agreement dated May 28, 2015 (the “Underwriting Agreement”) by and among the Delaware Companies, BNP Paribas Securities Corp., Goldman, Sachs & Co., J.P. Morgan Securities plc and the other Underwriters (as defined therein) party thereto;

 

  II. the Indenture dated as of August 18, 2014 by and among Expedia (as identified and defined in Annex A hereto), as issuer, the other Delaware Companies, as guarantors, the other guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Base Indenture”);

 

  III. the Fourth Supplemental Indenture dated as of June 3, 2015 by and among Expedia, as issuer, the other Delaware Companies, as guarantors, the other guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”); and

 

  IV. the Global Note dated June 3, 2015 issued by Expedia in favor of The Bank of New York Depository (Nominees) Limited, as nominee of The Bank of New York Mellon, London Branch, as common depository, represented by Certificate No. 001 in the aggregate principal amount of €650,000,000.00 (the “Senior Note” and together with the Underwriting Agreement and the Indenture, the “Transaction Documents” and each, individually, a “Transaction Document”).


Expedia, Inc.

June 3, 2015

Page 2

 

In rendering this opinion, we have examined and relied on copies of the following documents in the form provided to us:

 

  A. the Underwriting Agreement;

 

  B. the Indenture;

 

  C. the Registration Statement on Form S-3 (the “Registration Statement”) as filed with the Securities and Exchange Commission (the “Commission”) by Expedia on August 8, 2014 under the Securities Act of 1933, as amended (the “Securities Act”), as amended by Post-Effective Amendment No. 1 thereto as filed with the Commission on April 29, 2015;

 

  D. the Senior Note;

 

  E. the Governing Documents (as identified and defined in Annex D hereto);

 

  F. the Authorizing Resolutions (as identified and defined in Annex E hereto);

 

  G. one or more certificates of an officer of each of the Delaware Companies dated on or about the date hereof; and

 

  H. certifications of good standing of each of the Delaware Companies obtained as of a recent date from the Office of the Secretary of State of the State of Delaware (the “State Office”).

In such examinations, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies or drafts of documents to be executed and the legal capacity of natural persons to complete the execution of documents. We have further assumed for purposes of this opinion:

 

  i. except to the extent addressed by our opinions in paragraphs 1, 2 and 3 below, the due incorporation, formation or organization, valid existence and good standing of each entity that is a signatory to any of the documents examined by us under the laws of the jurisdiction of its respective incorporation, formation or organization;

 

  ii. except to the extent addressed by our opinions in paragraphs 8, 9, 10 and 11 below, the due authorization, authentication, adoption, approval, certification, acknowledgement, execution, filing, indexing and delivery, as applicable, of each of the above-referenced documents by each of the signatories thereto;


Expedia, Inc.

June 3, 2015

Page 3

 

  iii. that payment for consideration has been made for limited liability company interests in the Delaware LLC by all members of the Delaware LLC as provided in the Governing Documents of the Delaware LLC, and all of the other terms, conditions and restrictions set forth in the Governing Documents of the Delaware LLC have been satisfied or complied with in connection with the admission of members to the Delaware LLC and the issuance of limited liability company interests in the Delaware LLC;

 

  iv. that payment for consideration has been made for partnership interests in the Delaware LP by all partners of the Delaware LP as provided in the Governing Documents of the Delaware LP, and all of the other terms, conditions and restrictions set forth in the Governing Documents of the Delaware LP have been satisfied or complied with in connection with the admission of partners to the Delaware LP and the issuance of partnership interests in the Delaware LP;

 

  v. that the execution and delivery by Mark D. Okerstrom, as Executive Vice President and Chief Financial Officer of the Delaware LP, and/or Robert J. Dzielak, as Executive Vice President, General Counsel and Secretary of the Delaware LP, as applicable, of each of the Transaction Documents to which the Delaware LP is a party have been duly authorized by Hotels.com GP, LLC, acting in its capacity as the sole general partner of the Delaware LP, under the laws of Texas

 

  vi. that the Transaction Documents are substantially in the form approved by the governing body of each respective Delaware Company that adopted the respective Authorizing Resolutions;

 

  vii. that each Transaction Document is necessary or convenient to the conduct, promotion or attainment of the business of each Delaware Corporation;

 

  viii. solely with respect to the Delaware Corporations, that the consummation of the transactions contemplated by each of the Transaction Documents does not constitute a “business combination” (as defined in Section 203 of the Delaware General Corporation Law (the “DGCL”)) with an “interested stockholder” (as defined in Section 203 of the DGCL); and

 

  ix. that each of the documents examined by us is in full force and effect, sets forth the entire understanding of the parties thereto with respect to the subject matter thereof and has not been amended, supplemented or otherwise modified, except as herein referenced.

We have not reviewed any documents other than those identified above in connection with this opinion, and we have assumed that there are no other documents contrary to or inconsistent with the opinions expressed herein. No opinion is expressed herein with respect to the requirements of, or compliance with, federal or state securities or blue sky laws. As to any facts material to our opinion, other than those assumed, we have relied, without independent investigation, on the above-referenced documents and on the accuracy, as of the date hereof, of the matters therein contained.


Expedia, Inc.

June 3, 2015

Page 4

 

We have been retained to act as special Delaware counsel in connection with the Transaction Documents. We are not regular counsel to the Delaware Companies, and we are not generally informed as to their business affairs. With respect to our opinions below, we note that each Transaction Document is, by its terms, governed by and construed in accordance with the laws of the State of New York and, for purposes of our opinions, we have assumed that each Transaction Document will be interpreted in accordance with the plain meaning of the written terms thereof as such terms would be interpreted as a matter of Delaware law and we express no opinion with respect to any matter of the laws of the State of New York or any legal standards or concepts under the laws of the State of New York (or any other law other than Delaware law).

Based upon and subject to the foregoing and to the further assumptions and qualifications set forth below, and limited in all respects to matters of Delaware law, it is our opinion that:

 

  1. Each Delaware Corporation is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.

 

  2. The Delaware LLC is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware.

 

  3. The Delaware LP is a limited partnership duly formed, validly existing and in good standing under the laws of the State of Delaware.

 

  4. Expedia has the requisite corporate power and authority to execute and deliver each of the Transaction Documents and to perform its obligations thereunder.

 

  5. Hotwire (as identified and defined in Annex A hereto) has the requisite corporate power and authority to guarantee the Obligations (as defined in the Indenture) pursuant to the terms of the Indenture.

 

  6. The Delaware LLC has the requisite limited liability company power and authority to guarantee the Obligations pursuant to the terms of the Indenture.

 

  7. The Delaware LP has the requisite limited partnership power and authority to guarantee the Obligations pursuant to the terms of the Indenture.

 

  8. The Senior Note has been duly authorized by Expedia, and the Indenture has been duly authorized, executed and delivered by Expedia.


Expedia, Inc.

June 3, 2015

Page 5

 

  9. Hotwire’s guarantee of the Obligations pursuant to the terms of the Indenture has been duly authorized by Hotwire, and the Indenture has been duly authorized, executed and delivered by Hotwire.

 

  10. The Delaware LLC’s guarantee of the Obligations pursuant to the terms of the Indenture has been duly authorized by the Delaware LLC, and the Indenture has been duly authorized, executed and delivered by the Delaware LLC.

 

  11. The Delaware LP’s guarantee of the Obligations pursuant to the terms of the Indenture has been duly authorized by the Delaware LP, and the Indenture has been duly authorized, executed and delivered by the Delaware LP.

We hereby consent to the filing of a copy of this opinion with the Commission as an exhibit to the Registration Statement and the use of our name in the prospectus forming a part of the Registration Statement under the caption “Legal Matters.” In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. We understand that the firm of Wachtell, Lipton, Rosen & Katz (“WLRK”) wishes to rely as to certain matters of Delaware law on the opinions expressed herein in connection with the delivery of its opinion to you dated on or about the date hereof concerning the transactions contemplated hereby, and we hereby consent to such reliance. This opinion speaks only as of the date hereof and is based on our understandings and assumptions as to present facts and our review of the above-referenced documents and the application of Delaware law as the same exist on the date hereof, and we undertake no obligation to update or supplement this opinion after the date hereof for the benefit of any person or entity (including WLRK) with respect to any facts or circumstances that may hereafter come to our attention or any changes in facts or law that may hereafter occur or take effect.

 

Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL LLP
/s/ David A. Harris
David A. Harris


ANNEX A

DELAWARE CORPORATIONS

 

1. Expedia, Inc., a Delaware corporation (“Expedia”)

 

2. Hotwire, Inc., a Delaware corporation (“Hotwire”)

Expedia and Hotwire are collectively referred to as the “Delaware Corporations” and each is individually referred to as a “Delaware Corporation”.

 

A-1


ANNEX B

DELAWARE LLC

 

1. Interactive Affiliate Network, LLC, a Delaware limited liability company (the “Delaware LLC”)

 

B-1


ANNEX C

DELAWARE LP

 

1. EAN.com, LP, a Delaware limited partnership (the “Delaware LP”)

 

C-1


ANNEX D

GOVERNING DOCUMENTS

As the context requires, the following documents are collectively referred to as the “Governing Documents” or as the “Governing Documents” of the Delaware Company to which they relate:

Expedia, Inc.

A certified copy of the Certificate of Incorporation of Expedia, Inc. (attaching a Consent to Use of Name), filed in the State Office on April 18, 2005

A certified copy of the Amended and Restated Certificate of Incorporation of Expedia, Inc., filed in the State Office on August 8, 2005

A certified copy of the Certificate of Designations of Series A Cumulative Convertible Preferred Stock of Expedia, Inc., filed in the State Office on August 9, 2005

A certified copy of the Restated Certificate of Incorporation of Expedia, Inc., filed in the State Office on December 20, 2011

The General By-Laws of Expedia, Inc., Amended and Restated as of August 9, 2005

Hotwire, Inc.

A certified copy of the Certificate of Incorporation of Hotwire, Inc. (originally incorporated under the name Cimo, Inc.), filed in the State Office on December 1, 1999

The Amended and Restated Certificate of Incorporation of Hotwire, Inc., as attached to a certified copy of the Certificate of Merger of Hydrogen Properties, Inc. with and into Hotwire, Inc., filed in the State Office on November 5, 2003

A certified copy of the Certificate of Change of Location of Registered Office and of Registered Agent, filed in the State Office on February 17, 2004

The Bylaws of Hotwire, Inc. (under the name Cimo, Inc.)

 

D-1


Interactive Affiliate Network, LLC

A certified copy of the Certificate of Formation of Interactive Affiliate Network, LLC as filed in the State Office on September 30, 2003, as amended by the Certificate of Amendment thereto as filed in the State Office on March 4, 2004

Limited Liability Company Agreement of Interactive Affiliate Network, LLC dated as of September 30, 2003, as amended by the First Amendment thereto dated as of December 9, 2008

EAN.com, LP

A certified copy of the Certificate of Limited Partnership of IAN.com, LP (then named “IAN.com, LP”) as filed in the State Office on September 30, 2003, as amended by the Certificate of Amendment thereto as filed in the State Office on March 4, 2004, which Certificate of Amendment was corrected pursuant to the Certificate of Correction thereto as filed in the State Office on February 5, 2010, and as further amended by the Certificate of Amendment thereto as filed in the State Office on April 25, 2011

Agreement of Limited Partnership of EAN.com, LP (then named IAN.com, LP) dated as of September 30, 2003, as amended by the First Amendment thereto dated as of February 5, 2010 and the Second Amendment thereto dated as of April 25, 2011

 

D-2


ANNEX E

AUTHORIZING RESOLUTIONS

As the context requires, the following documents are collectively referred to as the “Authorizing Resolutions” or as the “Authorizing Resolutions” of the Delaware Company to which they relate:

 

  1. Unanimous Written Consent of the Board of Directors of Expedia, Inc. dated August 8, 2014

 

  2. Resolutions of the Board of Directors of Expedia, Inc. adopted at a meeting held on March 4, 2015

 

  3. Resolutions of the Special Pricing Committee of the Board of Directors of Expedia, Inc. adopted at a meeting held on May 27, 2015

 

  4. Unanimous Written Consent of Certain Subsidiaries of Expedia, Inc. dated August 8, 2014, relating to, among other things, the automatic shelf registration statement on Form S-3

 

  5. Unanimous Written Consent of Certain Subsidiaries of Expedia, Inc. dated August 13, 2014, relating to, among other things, the Base Indenture

 

  6. Unanimous Written Consent of Certain Subsidiaries of Expedia, Inc. dated April 29, 2015

EXHIBIT 5.5

[PERKINS COIE LLP LETTERHEAD]

June 3, 2015

Expedia, Inc.

333 108th Avenue N.E.

Bellevue, WA 98004

 

Re: Expedia, Inc. Corporation Registration Statement on Form S-3, as amended and supplemented, initially filed on August 8, 2014 (File No. 333-197974)

Ladies and Gentlemen:

We have acted as special counsel to Expedia, Inc., a Washington corporation (“ Expedia WA ”), and Cruise, LLC, a Washington limited liability company (“ Cruise ” and, together with Expedia WA, the “ Companies ”), in connection with the guarantees by the Companies of the Notes (as defined below). Each Company is one of several guarantors (such guarantors, including the Companies, are hereinafter collectively referred to as the “ Subsidiary Guarantors ”) in connection with (i) a registration statement on Form S-3 initially filed by the Companies’ ultimate parent company, Expedia, Inc., a Delaware corporation (the “ Parent ”), and the Subsidiary Guarantors with the Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), on August 8, 2014, as amended on April 29, 2015, and as supplemented by the Prospectus Supplement dated May 28, 2015 (File No. 333-197974) (the “ Registration Statement ”); and (ii) the offering of €650,000,000 aggregate principal amount of the Parent’s 2.500% Senior Notes due 2022 (the “ Notes ”) and related guarantees of the Subsidiary Guarantors registered pursuant to the Registration Statement under the Securities Act, whereby the Parent is issuing the Notes and the Subsidiary Guarantors are issuing the related guarantees under the Base Indenture (the “ Base Indenture ”), dated August 18, 2014, by and among the Parent, the Subsidiary Guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, as supplemented by the Fourth Supplemental Indenture, dated June 3, 2015, by and among the Parent, the Subsidiary Guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (the “ Supplemental Indenture ”, and together with the Base Indenture, the “ Indenture ”).

In connection with this opinion letter, we have examined originals or copies of such documents, records, certificates of public officials and certificates of officers and representatives of the Companies as we have considered necessary to provide a basis for the opinions expressed herein, including the following:

 

  1. Executed copy of the Indenture (including the related guarantees) as provided to us by the Companies;

 

  2. The Underwriting Agreement, dated May 28, 2015, by and among the Parent, BNP Paribas, Goldman, Sachs & Co. and J.P. Morgan Securities plc, as representatives of the several underwriters, and the Subsidiary Guarantors (the “ Underwriting Agreement );


Expedia, Inc.

June 3, 2015

Page 2

 

  3. The Registration Statement;

 

  4. Restated Articles of Incorporation of the Expedia WA, as amended, as certified by an officer of Expedia WA to be a true and complete copy of such Restated Articles of Incorporation as of the date hereof;

 

  5. Bylaws of Expedia WA, as amended, as certified by an officer of Expedia WA to be a true and complete copy of such Bylaws as of the date hereof;

 

  6. Certificate of Formation of Cruise, as certified by an officer of the sole member of Cruise to be a true and complete copy of such Certificate of Formation as of the date hereof;

 

  7. Operating Agreement of Cruise, as certified by an officer of the sole member of Cruise to be a true and complete copy of such Operating Agreement as of the date hereof;

 

  8. Certificates of Existence for each of the Companies, issued by the Washington Secretary of State, dated April 20, 2015 and a bringdown letter for each of the Companies with respect to the State of Washington issued by CT Corporation, dated June 2, 2015;

 

  9. Resolutions of the Board of Directors (or a committee thereof) of Expedia WA, certified by an officer of Expedia WA as of the date hereof; and

 

  10. Resolutions of the sole member of Cruise, certified by an officer of the sole member of Cruise as of the date hereof.

The documents listed in items 1 through 3 above are herein collectively referred to as the “ Transaction Documents .”

As to matters of fact material to the opinions expressed herein, we have relied on (a) information in the Certificates of Existence of the Companies dated April 20, 2015 and issued by the Secretary of State of the State of Washington as confirmed by a bringdown letter issued by CT Corporation, dated June 2, 2015 (and all opinions based on this document are as of the date of such document and not as of the date of this opinion letter), (b) information provided in certificates of officers/representatives of the Companies and (c) the representations and warranties of the Companies in the Underwriting Agreement. We have not independently verified the facts so relied on.

We have relied, without investigation, on the following assumptions:

 

  1. Original documents reviewed by us are authentic, copies of original documents reviewed by us conform to the originals, and all signatures on executed documents are genuine.


Expedia, Inc.

June 3, 2015

Page 3

 

  2. When the Notes (and related guarantees) proposed to be issued pursuant to the terms of the Indenture are issued, they will conform to the description of the 2.500% Senior Notes Due 2022 in the Registration Statement.

 

  3. All individuals have sufficient legal capacity to perform their functions with respect to the Transaction Documents and the transactions contemplated by the Transaction Documents.

Based on the foregoing and subject to the qualifications and exclusions stated herein, we express the following opinions:

 

  1. Each Company is validly existing as a corporation or limited liability company, as the case may be, under the laws of the State of Washington and has the necessary corporate or limited liability power, as the case may be, and authority to guarantee the Notes pursuant to the terms of the Indenture.

 

  2. Each Company’s guarantee of the Notes pursuant to the terms of the Indenture has been duly authorized by all necessary corporate or limited liability company action, as the case may be, and each of the Transaction Documents to which the Companies are a party have been validly authorized, executed and delivered by the Companies, as the case may be.

For purposes of expressing the opinions herein, we have examined the laws of the State of Washington and our opinions are limited to such laws.

The opinions expressed herein (a) are limited to matters expressly stated herein, and no other opinions may be implied or inferred and (b) are as of the date hereof (except as otherwise noted above). We disclaim any undertaking or obligation to update these opinions for events and circumstances occurring after the date hereof or as to facts relating to prior events that are subsequently brought to our attention.

Wachtell, Lipton, Rosen & Katz may rely on the opinions expressed herein as if this opinion were addressed directly to it. You may refer to and produce a copy of this opinion letter in connection with the assertion of a defense as to which this opinion letter is relevant and necessary and in response to a court order. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and any amendments thereto, including any and all post-effective amendments, and to the reference to our firm under the caption “Legal Matters” in the prospectus or any prospectus supplement which is part of the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder nor do we admit that we are experts with respect to any part of the Registration Statement within the meaning of the term “expert” as used in the Securities Act or the related rules and regulations of the SEC promulgated thereunder.

 

Very truly yours,
/s/ Perkins Coie LLP
PERKINS COIE LLP

EXHIBIT 99.1

 

LOGO

Expedia, Inc. Announces Proposed Offering of Senior Notes

BELLEVUE, Washington – May 28, 2015 – Today, Expedia, Inc. (“Expedia”) announced that it is commencing an offering of euro-denominated senior unsecured notes (the “Notes”), subject to market and other conditions. If the offering is consummated, Expedia expects to use the net proceeds from the offering to fund a portion of the cash consideration payable in connection with its previously announced proposed acquisition of Orbitz Worldwide, Inc. and for other general corporate purposes. There can be no assurance that the issuance and sale of the Notes will be consummated.

BNP Paribas, Goldman, Sachs & Co, J.P. Morgan Securities plc, Merrill Lynch International, Mizuho International plc and RBC Europe Limited are the joint book-running managers of the offering, and HSBC Bank plc, Mitsubishi UFJ Securities International plc, SMBC Nikko Capital Markets Limited, Barclays Bank plc and U.S. Bancorp Investments, Inc. are the co-managers of the offering. The offering is being made pursuant to an effective shelf registration statement (File No. 333-197974), as amended, filed with the Securities and Exchange Commission (“SEC”). The offering will be made only by means of a prospectus supplement and the accompanying base prospectus, copies of which may be obtained by contacting: BNP Paribas, 10 Harewood Avenue, London, NW1 6AA, United Kingdom (fax: +44 20 7595 2555); Attention: Fixed Income Syndicate, Goldman, Sachs & Co., 200 West Street, New York, NY 10282; Attention: Registration Department or J.P. Morgan Securities plc, 25 Bank Street, Canary Wharf, London E14 5JP, United Kingdom (fax: +44 20 3493 0682; Email: Head_of_EMEA_DCMG@jpmorgan.com); Attention: Head of Debt Syndicate and Head of EMEA Debt Capital Markets Group. An electronic copy of the preliminary prospectus supplement, together with the accompanying prospectus, will be available on the SEC’s website, www.sec.gov.

This press release shall not constitute an offer to sell or a solicitation of an offer to buy the securities described herein, nor shall there be any sale of these securities in any state or other jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

About Expedia, Inc.

Expedia, Inc. (NASDAQ: EXPE) is one of the world’s largest travel companies, with an extensive brand portfolio that includes leading online travel brands, such as:

 

    Expedia.com ® , a leading full service online travel agency with localized sites in 31 countries

 

    Hotels.com ® , the hotel specialist with localized sites in more than 60 countries

 

    Hotwire ® , a leading discount travel site that offers opaque deals in 12 countries throughout North America, Europe and Asia

 

    Travelocity ® , a pioneer in online travel and a leading online travel agency in the US and Canada

 

    Egencia ® , a leading corporate travel management company

 

    Venere.com™, an online hotel reservation specialist in Europe


    trivago ® , a leading online hotel metasearch company with sites in 51 countries

 

    Wotif Group, a leading operator of travel brands in the Asia-Pacific region, including Wotif.com ® , lastminute.com.au ® , travel.com.au, Asia Web Direct ® , LateStays.com and GoDo.com.au

 

    Expedia Local Expert ® , a provider of online and in-market concierge services, activities, experiences and ground transportation in hundreds of destinations worldwide

 

    Classic Vacations ® , a top luxury travel specialist

 

    Expedia ® CruiseShipCenters ® , a provider of exceptional value and expert advice for travelers booking cruises and vacations through its network of 180 franchise locations across North America

 

    CarRentals.com™, the premier car rental booking company on the web.

Expedia delivers consumers value in leisure and business travel, drives incremental demand and direct bookings to travel suppliers, and provides advertisers the opportunity to reach a highly valuable audience of in-market consumers through Expedia ® Media Solutions. Expedia also powers bookings for some of the world’s leading airlines and hotels, top consumer brands, high traffic websites, and thousands of active affiliates through Expedia ® Affiliate Network.

# # #

Forward-Looking Statements . This press release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These statements are not guarantees of future performance. These forward-looking statements reflect the views of our management regarding current expectations and projections about future events and are based on currently available information. The use of words such as “anticipates,” “estimates,” “expects,” “intends,” “plans,” and “believes,” among others, generally identifies forward-looking statements. However, these words are not the exclusive means of identifying such statements. In addition, any statements that refer to expectations, projections or other characterizations of future events or circumstances are forward-looking statements and may include statements relating to future revenues, expenses, margins, profitability, net income/(loss), earnings per share and other measures of results of operations and the prospects for future growth of Expedia’s business. These forward-looking statements are inherently subject to uncertainties, risks and changes in circumstances that are difficult to predict. Actual results and the timing and outcome of events may differ materially from those expressed or implied in the forward-looking statements for a variety of reasons, including, among others: an increasingly competitive global environment; risks related to our dynamic industry; changes in search engine algorithms and dynamics or other traffic-generating arrangements; our failure to maintain and expand our relationships and contractual agreements with travel suppliers or travel distribution partners; our failure to maintain and expand our brand awareness or increased costs to do so; our failure to invest in and adapt to technological developments or industry trends; risks related to our acquisitions, investments or significant commercial arrangements; risks relating to our operations in international markets, including China; our failure to comply with current laws, rules and regulations, or changes to such laws, rules and regulations; application of existing tax laws, rules or regulations; amendment to existing tax laws, rules or regulations or enactment of new unfavorable tax laws, rules or regulations; adverse outcomes in legal proceedings to which we are a party; declines or disruptions in the travel industry; payments-related and fraud risks; fluctuations in foreign exchange rates; volatility in our stock price; liquidity constraints or our inability to access the capital markets when necessary or desirable; system interruption, security breaches or lack of redundancy in our information systems; our failure to comply with governmental regulation and other legal obligations related to our processing, storage and use of personal information, payment card information and other consumer data; failure to retain or motivate key personnel or hire, retain and motivate qualified personnel, including senior management; changes in control of Expedia; management and director conflicts of interest; risks related to actions taken by our business partners and third party service providers, including failure to comply with our requirements or standards or the requirements or standards of governmental authorities, or any cessation of their operations; risks related to the failure of counterparties to perform on financial obligations; risks related to our long-term indebtedness; our inability to effectively operate our businesses due to restrictive covenants in the agreements governing our indebtedness; our failure to protect our intellectual property or proprietary information from copying or use


by others, including potential competitors; and other risks detailed in Expedia’s public filings with the SEC, including its annual report on Form 10-K for the year ended December 31, 2014 and subsequent Forms 10-Q. Other unknown or unpredictable factors also could have a material adverse effect on our business, financial condition and results of operations. In addition, in light of these risks and uncertainties, the matters referred to in the forward-looking statements contained in this press release may not in fact occur. Accordingly, you should not place undue reliance on those statements. Except as required by law, we undertake no obligation, and do not intend, to publicly update or revise any forward-looking statement or other statement in this press release, whether as a result of new information, future events or otherwise, even if experience or future events make it clear that any expected results express or implied by these forward-looking statements will not be realized.

Trademarks and logos are the property of their respective owners. © 2015 Expedia, Inc. All rights reserved. CST: 2029030-50

Contacts:

Investor Relations

(425) 679-3759

ir@expedia.com

Communications

(425) 679-4317

press@expedia.com

EXHIBIT 99.2

 

LOGO

Expedia, Inc. Announces Pricing of Senior Notes Offering

BELLEVUE, Washington – May 28, 2015 – Today, Expedia, Inc. (“Expedia”) announced that it has agreed to sell €650 million aggregate principal amount of 2.500% senior notes due 2022 (the “Notes”). The Notes will be guaranteed by certain subsidiaries of Expedia, Inc. The offering of the Notes is expected to close on June 3, 2015. Expedia expects to use the net proceeds from the offering to fund a portion of the cash consideration payable in connection with its previously announced proposed acquisition of Orbitz Worldwide, Inc. and for other general corporate purposes.

BNP Paribas, Goldman, Sachs & Co, J.P. Morgan Securities plc, Merrill Lynch International, Mizuho International plc and RBC Europe Limited are the joint book-running managers of the offering, and HSBC Bank plc, Mitsubishi UFJ Securities International plc, SMBC Nikko Capital Markets Limited, Barclays Bank plc and U.S. Bancorp Investments, Inc. are the co-managers of the offering. The offering is being made pursuant to an effective shelf registration statement (File No. 333-197974), as amended, filed with the Securities and Exchange Commission (“SEC”). The offering will be made only by means of a prospectus supplement and the accompanying base prospectus, copies of which may be obtained by contacting: BNP Paribas, 10 Harewood Avenue, London, NW1 6AA, United Kingdom (fax: +44 20 7595 2555); Attention: Fixed Income Syndicate, Goldman, Sachs & Co., 200 West Street, New York, NY 10282; Attention: Registration Department or J.P. Morgan Securities plc, 25 Bank Street, Canary Wharf, London E14 5JP, United Kingdom (fax: +44 20 3493 0682; Email: Head_of_EMEA_DCMG@jpmorgan.com); Attention: Head of Debt Syndicate and Head of EMEA Debt Capital Markets Group. An electronic copy of the preliminary prospectus supplement, together with the accompanying prospectus, is also available on the SEC’s website, www.sec.gov.

This press release shall not constitute an offer to sell or a solicitation of an offer to buy the securities described herein, nor shall there be any sale of these securities in any state or other jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

About Expedia, Inc.

Expedia, Inc. (NASDAQ: EXPE) is one of the world’s largest travel companies, with an extensive brand portfolio that includes leading online travel brands, such as:

 

    Expedia.com ® , a leading full service online travel agency with localized sites in 31 countries

 

    Hotels.com ® , the hotel specialist with localized sites in more than 60 countries

 

    Hotwire ® , a leading discount travel site that offers opaque deals in 12 countries throughout North America, Europe and Asia

 

    Travelocity ® , a pioneer in online travel and a leading online travel agency in the US and Canada

 

    Egencia ® , a leading corporate travel management company

 

    Venere.com™, an online hotel reservation specialist in Europe


    trivago ® , a leading online hotel metasearch company with sites in 51 countries

 

    Wotif Group, a leading operator of travel brands in the Asia-Pacific region, including Wotif.com ® , lastminute.com.au ® , travel.com.au, Asia Web Direct ® , LateStays.com and GoDo.com.au

 

    Expedia Local Expert ® , a provider of online and in-market concierge services, activities, experiences and ground transportation in hundreds of destinations worldwide

 

    Classic Vacations ® , a top luxury travel specialist

 

    Expedia ® CruiseShipCenters ® , a provider of exceptional value and expert advice for travelers booking cruises and vacations through its network of 180 franchise locations across North America

 

    CarRentals.com™, the premier car rental booking company on the web.

Expedia delivers consumers value in leisure and business travel, drives incremental demand and direct bookings to travel suppliers, and provides advertisers the opportunity to reach a highly valuable audience of in-market consumers through Expedia ® Media Solutions. Expedia also powers bookings for some of the world’s leading airlines and hotels, top consumer brands, high traffic websites, and thousands of active affiliates through Expedia ® Affiliate Network.

# # #

Forward-Looking Statements . This press release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These statements are not guarantees of future performance. These forward-looking statements reflect the views of our management regarding current expectations and projections about future events and are based on currently available information. The use of words such as “anticipates,” “estimates,” “expects,” “intends,” “plans,” and “believes,” among others, generally identifies forward-looking statements. However, these words are not the exclusive means of identifying such statements. In addition, any statements that refer to expectations, projections or other characterizations of future events or circumstances are forward-looking statements and may include statements relating to future revenues, expenses, margins, profitability, net income/(loss), earnings per share and other measures of results of operations and the prospects for future growth of Expedia’s business. These forward-looking statements are inherently subject to uncertainties, risks and changes in circumstances that are difficult to predict. Actual results and the timing and outcome of events may differ materially from those expressed or implied in the forward-looking statements for a variety of reasons, including, among others: an increasingly competitive global environment; risks related to our dynamic industry; changes in search engine algorithms and dynamics or other traffic-generating arrangements; our failure to maintain and expand our relationships and contractual agreements with travel suppliers or travel distribution partners; our failure to maintain and expand our brand awareness or increased costs to do so; our failure to invest in and adapt to technological developments or industry trends; risks related to our acquisitions, investments or significant commercial arrangements; risks relating to our operations in international markets, including China; our failure to comply with current laws, rules and regulations, or changes to such laws, rules and regulations; application of existing tax laws, rules or regulations; amendment to existing tax laws, rules or regulations or enactment of new unfavorable tax laws, rules or regulations; adverse outcomes in legal proceedings to which we are a party; declines or disruptions in the travel industry; payments-related and fraud risks; fluctuations in foreign exchange rates; volatility in our stock price; liquidity constraints or our inability to access the capital markets when necessary or desirable; system interruption, security breaches or lack of redundancy in our information systems; our failure to comply with governmental regulation and other legal obligations related to our processing, storage and use of personal information, payment card information and other consumer data; failure to retain or motivate key personnel or hire, retain and motivate qualified personnel, including senior management; changes in control of Expedia; management and director conflicts of interest; risks related to actions taken by our business partners and third party service providers, including failure to comply with our requirements or standards or the requirements or standards of governmental authorities, or any cessation of their operations; risks related to the failure of counterparties to perform on financial obligations; risks related to our long-term indebtedness; our inability to effectively operate our businesses due to restrictive covenants in the agreements governing our indebtedness; our failure to protect our intellectual property or proprietary information from copying or use by others, including potential competitors; and other risks detailed in


Expedia’s public filings with the SEC, including its annual report on Form 10-K for the year ended December 31, 2014 and subsequent Forms 10-Q. Other unknown or unpredictable factors also could have a material adverse effect on our business, financial condition and results of operations. In addition, in light of these risks and uncertainties, the matters referred to in the forward-looking statements contained in this press release may not in fact occur. Accordingly, you should not place undue reliance on those statements. Except as required by law, we undertake no obligation, and do not intend, to publicly update or revise any forward-looking statement or other statement in this press release, whether as a result of new information, future events or otherwise, even if experience or future events make it clear that any expected results express or implied by these forward-looking statements will not be realized.

Trademarks and logos are the property of their respective owners. © 2015 Expedia, Inc. All rights reserved. CST: 2029030-50

Contacts:

Investor Relations

(425) 679-3759

ir@expedia.com

Communications

(425) 679-4317

press@expedia.com