SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of October 21, 2005 (this "Guarantee"),
made by each of the signatories hereto (together with any other entity that may
become a party hereto as provided herein, individually and collectively, the
"Guarantors"), in favor of the purchasers signatory (the "Purchasers") to that
certain Securities Purchase Agreement, dated as of the date hereof (the
"Purchase Agreement") among OneTravel Holdings, Inc., a Delaware corporation
(the "Company") and the Purchasers.
W I T N E S S E T H:
WHEREAS, pursuant to the Purchase Agreement, the Company has agreed to
sell and issue to the Purchasers, and the Purchasers have agreed to purchase
from the Company, the Company's Secured Convertible Debentures, due October 21,
2008 (the "Debentures"), subject to the terms and conditions set forth therein;
and
WHEREAS, each Guarantor will directly benefit from the extension of credit
to the Company represented by the issuance of the Debentures; and
NOW, THEREFORE, in consideration of the premises and to induce the
Purchasers to enter into the Purchase Agreement and to carry out the
transactions contemplated thereby, each Guarantor hereby agrees with the
Purchasers, as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Purchase Agreement and used herein shall have the meanings given to them in the
Purchase Agreement. The words "hereof," "herein," "hereto" and "hereunder" and
words of similar import when used in this Guarantee shall refer to this
Guarantee as a whole and not to any particular provision of this Guarantee, and
Section and Schedule references are to this Guarantee unless otherwise
specified. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms. The following
terms shall have the following meanings:
"Agent" shall have the meaning given such term in the Security
Agreement.
"Guarantee" means this Subsidiary Guarantee, as the same may be
amended, supplemented or otherwise modified from time to time.
"Obligations" means the collective reference to all obligations and
undertakings of the Company of whatever nature, monetary or otherwise,
under the Debentures, the Purchase Agreement, the Security Agreement, the
Warrants, the Registration Rights Agreement or any other future agreement
executed in connection therewith, together with all reasonable attorneys'
fees, disbursements and all other costs and expenses of collection
incurred by Purchasers in enforcing any of such Obligations and/or this
Guarantee.
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2. Guarantee.
(a) Guarantee.
(i) The Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantee to the Purchasers and
their respective successors, indorsees, transferees and assigns, the
prompt and complete payment and performance by the Company when due
(whether at the stated maturity, by acceleration or otherwise) of
the Obligations.
(ii) Anything herein or in any other Transaction Document to
the contrary notwithstanding, the maximum liability of each
Guarantor hereunder and under the other Transaction Documents shall
in no event exceed the amount which can be guaranteed by such
Guarantor under applicable federal and state laws, including laws
relating to the insolvency of debtors, fraudulent conveyance or
transfer or laws affecting the rights of creditors generally (after
giving effect to the right of contribution established in Section
2(b)).
(iii) Each Guarantor agrees that the Obligations may at any
time and from time to time exceed the amount of the liability of
such Guarantor hereunder without impairing the guarantee contained
in this Section 2 or affecting the rights and remedies of the
Purchasers hereunder.
(iv) The guarantee contained in this Section 2 shall remain in
full force and effect until all the Obligations (other than
contingent indemnification obligations for which no claims shall
have been asserted) shall have been paid in full.
(v) No payment made by the Company, any of the Guarantors, any
other guarantor or any other Person or received or collected by the
Purchasers from the Company, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding
or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Obligations shall
be deemed to modify, reduce, release or otherwise affect the
liability of any Guarantor hereunder which shall, notwithstanding
any such payment (other than any payment made by such Guarantor in
respect of the Obligations or any payment received or collected from
such Guarantor in respect of the Obligations), remain liable for the
Obligations up to the maximum liability of such Guarantor hereunder
until the Obligations (other than contingent indemnification
obligations for which no claims shall have been asserted) are paid
in full.
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(vi) Notwithstanding anything to the contrary in this
Agreement, with respect to any defaulted non-monetary Obligations
the specific performance of which by the Guarantors is not
reasonably possible (e.g. the issuance of the Company's Common
Stock), the Guarantors shall only be liable for making the
Purchasers whole on a monetary basis for the Company's failure to
perform such Obligations in accordance with the Transaction
Documents.
(b) Right of Contribution. Each Guarantor hereby agrees that to the extent
that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2(c). The provisions of
this Section 2(b) shall in no respect limit the obligations and liabilities of
any Guarantor to the Purchasers, and each Guarantor shall remain liable to the
Purchasers for the full amount guaranteed by such Guarantor hereunder.
(c) No Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the
Purchasers, no Guarantor shall be entitled to be subrogated to any of the rights
of the Purchasers against the Company or any other Guarantor or any collateral
security or guarantee or right of offset held by the Purchasers for the payment
of the Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Company or any other Guarantor in respect
of payments made by such Guarantor hereunder, until all amounts owing to the
Purchasers by the Company on account of the Obligations (other than contingent
indemnification obligations for which no claims shall have been asserted) are
paid in full. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Obligations (other than
contingent indemnification obligations for which no claims shall have been
asserted) shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Purchasers, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over
to the Agent, for the benefit of the Purchasers, in the exact form received by
such Guarantor (duly indorsed by such Guarantor to the Purchasers, if required),
to be applied by the Agent against the Obligations, whether matured or
unmatured, in accordance with Section 9 of the Security Agreement.
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(d) Amendments, Etc. With Respect to the Obligations. Each Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of
rights against any Guarantor and without notice to or further assent by any
Guarantor, any demand for payment of any of the Obligations made by the
Purchasers may be rescinded by the Purchasers and any of the Obligations
continued, and the Obligations, or the liability of any other Person upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Purchasers, and the Purchase Agreement and the
other Transaction Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Purchasers may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the
Purchasers for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Purchasers shall have no obligation to protect,
secure, perfect or insure any Lien at any time held by them as security for the
Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.
(e) Guarantee Absolute and Unconditional. Each Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Purchasers upon the
guarantee contained in this Section 2 or acceptance of the guarantee contained
in this Section 2; the Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon the guarantee contained in this Section 2;
and all dealings between the Company and any of the Guarantors, on the one hand,
and the Purchasers, on the other hand, likewise shall be conclusively presumed
to have been had or consummated in reliance upon the guarantee contained in this
Section 2. Each Guarantor waives to the extent permitted by law diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Company or any of the Guarantors with respect to the Obligations.
Each Guarantor understands and agrees that the guarantee contained in this
Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Purchase Agreement or any other Transaction Document, any of the Obligations or
any other collateral security therefor or guarantee or right of offset with
respect thereto at any time or from time to time held by the Purchasers, (b) any
defense, set-off or counterclaim (other than a defense of payment or performance
or fraud or misconduct by Purchasers) which may at any time be available to or
be asserted by the Company or any other Person against the Purchasers, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of the
Company or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company for the Obligations,
or of such Guarantor under the guarantee contained in this Section 2, in
bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Agent may, but shall be under no obligation to, make a similar demand on or
otherwise pursue such rights and remedies as they may have against the Company,
any other Guarantor or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and
any failure by the Agent or the Purchasers to make any such demand, to pursue
such other rights or remedies or to collect any payments from the Company, any
other Guarantor or any other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release of
the Company, any other Guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve any Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the
Purchasers against any Guarantor. For the purposes hereof, "demand" shall
include the commencement and continuance of any legal proceedings.
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(f) Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations (other than contingent
indemnification obligations for which no claims shall have been asserted) is
rescinded or must otherwise be restored or returned by the Purchasers upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Company or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
(g) Payments. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Agent, for the benefit of the Purchasers, without set-off or
counterclaim in U.S. dollars at the address set forth or referred to in the
Purchase Agreement.
3. Representations and Warranties. Each Guarantor hereby makes the
following representations and warranties to the Purchasers, as of the date
hereof: (a) Organization and Qualification. The Guarantor is a corporation, duly
incorporated, validly existing and in good standing under the laws of the
applicable jurisdiction set forth on Schedule 1, with the requisite corporate
power and authority to own and use its properties and assets and to carry on its
business as currently conducted. The Guarantor has no subsidiaries other than
those identified as such on the Disclosure Schedules to the Purchase Agreement.
The Guarantor is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the case may be,
could not, individually or in the aggregate, (x) adversely affect the legality,
validity or enforceability of any of this Guarantee in any material respect, (y)
have a material adverse effect on the results of operations, assets, prospects,
or financial condition of the Guarantor or (z) adversely impair in any material
respect the Guarantor's ability to perform fully on a timely basis its
obligations under this Guarantee (a "Material Adverse Effect").
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(b) Authorization; Enforcement. The Guarantor has the requisite corporate
power and authority to enter into and to consummate the transactions
contemplated by this Guarantee, and otherwise to carry out its obligations
hereunder. The execution and delivery of this Guarantee by the Guarantor and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on the part of the Guarantor. This
Guarantee has been duly executed and delivered by the Guarantor and constitutes
the valid and binding obligation of the Guarantor enforceable against the
Guarantor in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement
of, creditors' rights and remedies or by other equitable principles of general
application.
(c) No Conflicts. The execution, delivery and performance of this
Guarantee by the Guarantor and the consummation by the Guarantor of the
transactions contemplated thereby do not and will not (i) conflict with or
violate any provision of its Certificate of Incorporation or By-laws or (ii)
conflict with, constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Guarantor is a party, or (iii) result in a
violation of any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which the Guarantor
is subject (including Federal and state securities laws and regulations), or by
which any material property or asset of the Guarantor is bound or affected,
except in the case of each of clauses (ii) and (iii), such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as could
not, individually or in the aggregate, have or result in a Material Adverse
Effect. The business of the Guarantor is not being conducted in violation of any
law, ordinance or regulation of any governmental authority, except for
violations which, individually or in the aggregate, do not have a Material
Adverse Effect.
(d) Consents and Approvals. The Guarantor is not required to obtain any
consent, waiver, authorization or order of, or make any filing or registration
with, any court or other federal, state, local, foreign or other governmental
authority or other person in connection with the execution, delivery and
performance by the Guarantor of this Guarantee.
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(e) Purchase Agreement. Except as set forth in the Disclosure Schedules or
in the SEC Reports (each, as defined in the Purchase Agreement), the
representations and warranties of the Company set forth in the Purchase
Agreement as they relate to such Guarantor, each of which is hereby incorporated
herein by reference, are true and correct in all material respects as of each
time such representations are deemed to be made pursuant to such Purchase
Agreement, and the Purchasers, shall be entitled to rely on each of them as if
they were fully set forth herein, provided, that each reference in each such
representation and warranty to the Company's knowledge shall, for the purposes
of this Section 3, be deemed to be a reference to such Guarantor's knowledge.
(f) Foreign Law. Each Guarantor has consulted with appropriate foreign
legal counsel with respect to any of the above representations for which
non-U.S. law is applicable. Such foreign counsel have advised each applicable
Guarantor that such counsel knows of no reason why any of the above
representations would not be true and accurate. Such foreign counsel were
provided with copies of this Guarantee and the Transaction Documents prior to
rendering their advice.
4. Covenants.
(a) Each Guarantor covenants and agrees with the Purchasers, that, from
and after the date of this Guarantee until the Obligations (other than
contingent indemnification obligations for which no claims shall have been
asserted) shall have been paid in full, such Guarantor shall take, and/or shall
refrain from taking, as the case may be, each commercially reasonable action
that is necessary to be taken or not taken, as the case may be, so that no Event
of Default is caused by the failure to take such action or to refrain from
taking such action by such Guarantor.
(b) So long as any of the Obligations (other than contingent
indemnification obligations for which no claims shall have been asserted) are
outstanding, each Guarantor will not directly or indirectly on or after the date
of this Guarantee:
i. except with the prior written consent of the Agent and except for
Permitted Indebtedness (as defined in the Debentures), enter into, create,
incur, assume or suffer to exist any indebtedness for borrowed money of
any kind, including but not limited to, a guarantee, on or with respect to
any of its property or assets now owned or hereafter acquired or any
interest therein or any income or profits therefrom that is senior to, or
pari passu with, in any respect, such Guarantor's obligations hereunder;
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ii. except with the prior written consent of the Agent and except
for Permitted Liens (as defined in the Debentures), enter into, create,
incur, assume or suffer to exist any liens of any kind, on or with respect
to any of its property or assets now owned or hereafter acquired or any
interest therein or any income or profits therefrom that is senior to, in
any respect, such Guarantor's obligations hereunder;
iii. amend its certificate of incorporation, bylaws or other charter
documents so as to adversely affect any rights of Agent or the Purchasers;
iv. except with the prior written consent of the Agent or as
otherwise permitted under the Debentures, repay, repurchase or offer to
repay, repurchase or otherwise acquire more than a de minimis number of
shares of its Common Stock or Common Stock Equivalents;
v. enter into any agreement with respect to any of the foregoing; or
vi. pay cash dividends on any equity securities of the Guarantors,
except for dividends and distributions to the Company.
5. Miscellaneous.
(a) Amendments in Writing. None of the terms or provisions of this
Guarantee may be waived, amended, supplemented or otherwise modified except in
writing by the Guarantors and the Agent, for the benefit of the Purchasers.
(b) Notices. All notices, requests and demands to or upon the Agent or any
Guarantor hereunder shall be effected in the manner provided for in the Purchase
Agreement; provided that any such notice, request or demand to or upon any
Guarantor shall be addressed to such Guarantor at its notice address set forth
on Schedule 5(b).
(c) No Waiver By Course Of Conduct; Cumulative Remedies. The Agent shall
not by any act (except by a written instrument pursuant to Section 5(a)), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any default under the Transaction Documents
or Event of Default. No failure to exercise, nor any delay in exercising, on the
part of the Agent, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Agent of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Agent would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.
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(d) Enforcement Expenses; Indemnification.
(i) Each Guarantor agrees to pay, or reimburse the Agent, for the
benefit of the Purchasers for, all its costs and expenses incurred in
collecting against such Guarantor under the guarantee contained in Section
2 or otherwise enforcing or preserving any rights under this Guarantee and
the other Transaction Documents to which such Guarantor is a party,
including, without limitation, the reasonable fees and disbursements of
counsel to the Agent.
(ii) Each Guarantor agrees to pay, and to save the Purchasers
harmless from, any and all liabilities with respect to, or resulting from
any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable in connection with any of the
transactions contemplated by this Guarantee.
(iii) Each Guarantor agrees to pay, and to save the Purchasers
harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Guarantee to the
extent the Company would be required to do so pursuant to the Purchase
Agreement.
(iv) The agreements in this Section shall survive repayment of the
Obligations and all other amounts payable under the Purchase Agreement and
the other Transaction Documents.
(e) Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Purchasers and their respective successors and assigns; provided that no
Guarantor may assign, transfer or delegate any of its rights or obligations
under this Guarantee without the prior written consent of the Agent, for the
benefit of the Purchasers.
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(f) Set-Off. Each Guarantor hereby irrevocably authorizes the Agent, for
the benefit of the Purchasers, at any time and from time to time while an Event
of Default under any of the Transaction Documents shall have occurred and be
continuing, without notice to such Guarantor or any other Guarantor, any such
notice being expressly waived by each Guarantor, to set-off and appropriate and
apply any and all deposits, credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Purchasers to or for the credit or
the account of such Guarantor, or any part thereof in such amounts as the Agent,
for the benefit of the Purchasers, may elect, against and on account of the
obligations and liabilities of such Guarantor to the Purchasers hereunder and
claims of every nature and description of the Purchasers against such Guarantor,
in any currency, whether arising hereunder, under the Purchase Agreement, any
other Transaction Document or otherwise, as the Agent, for the benefit of the
Purchasers, may elect, whether or not the Agent has made any demand for payment
and although such obligations, liabilities and claims may be contingent or
unmatured. The Agent shall notify such Guarantor promptly of any such set-off
and the application made by the Agent of the proceeds thereof, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Agent under this Section are in addition to other
rights and remedies(including, without limitation, other rights of set-off)
which the Agent, for the benefit of the Purchasers, may have.
(g) Counterparts. This Guarantee may be executed by one or more of the
parties to this Guarantee on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
(h) Severability. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(i) Section Headings. The Section headings used in this Guarantee are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
(j) Integration. This Guarantee and the other Transaction Documents
represent the agreement of the Guarantors and the Purchasers with respect to the
subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Purchasers relative to subject matter
hereof and thereof not expressly set forth or referred to herein or in the other
Transaction Documents.
(k) Governing Law. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO ANY PRINCIPLES OF CONFLICTS OF LAWS.
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(l) Submission to Jurisdictional; Waiver. Each Guarantor hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Guarantee and the other Transaction Documents
to which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, located in New York County, New York, the
courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Guarantor at its address referred to in the Purchase
Agreement or at such other address of which the Agent shall have been
notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential
damages.
(m) Acknowledgements. Each Guarantor hereby acknowledges that:
(i) it has been advised by counsel in the negotiation, execution and
delivery of this Guarantee and the other Transaction Documents to which it
is a party;
(ii) the Purchasers have no fiduciary relationship with or duty to
any Guarantor arising out of or in connection with this Guarantee or any
of the other Transaction Documents, and the relationship between the
Guarantors, on the one hand, and the Purchasers, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
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(iii) no joint venture is created hereby or by the other Transaction
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Guarantors and the Purchasers.
(n) Additional Guarantors. The Company shall cause each of its
subsidiaries formed or acquired subsequent to the date hereof to become a
Guarantor for all purposes of this Guarantee by executing and delivering an
Assumption Agreement in the form of Annex 1 hereto.
(o) Release of Guarantors. Subject to Section 2.6, each Guarantor will be
released from all liability hereunder concurrently with the repayment in full of
the Obligations (other than contingent indemnification obligations for which no
claims shall have been asserted).
(p) Waiver of Jury Trial. EACH GUARANTOR AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, THE PURCHASERS, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE AND
FOR ANY COUNTERCLAIM THEREIN.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
to be duly executed and delivered as of the date first above written.
FAREQUEST HOLDINGS, INC., a Delaware corporation
By:\s\ Marc E. Bercoon
---------------------
Name: Marc E. Bercoon
Its: Vice Chairman
ONETRAVEL, INC., a Texas corporation
By:\s\ Marc E. Bercoon
---------------------
Name: Marc E. Bercoon
Its: President
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SCHEDULE 1
GUARANTORS
The following are the names, notice addresses and jurisdiction of
incorporation of each Guarantor.
NAME AND JURISDICTION OF
NOTICE ADDRESS INCORPORATION
- -------------- ---------------
OneTravel, Inc. Texas
5775 Peachtree Dunwoody Road
Building G, Suite 300
Atlanta, GA 30346
Attn.: President
Farequest Holdings, Inc. Delaware
5775 Peachtree Dunwoody Road
Building G, Suite 300
Atlanta, GA 30346
Attn.: President
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Annex 1 to
SUBSIDIARY GUARANTEE
ASSUMPTION AGREEMENT, dated as of ____ __, ______ made by
______________________________, a ______________ corporation (the "Additional
Guarantor"), in favor of the Purchaser signatory (the "Purchasers") to that
certain Securities Purchase Agreement, dated as of October ___, 2005 (the
"Purchase Agreement") among OneTravel Holdings, Inc., a Delaware corporation
(the "Company"), Agent and the Purchasers. All capitalized terms not defined
herein shall have the meaning ascribed to them in such Purchase Agreement.
W I T N E S S E T H :
WHEREAS, in connection with the Purchase Agreement, certain of the
Company's Subsidiaries have entered into the Subsidiary Guarantee, dated as of
October ____, 2005 (as amended, supplemented or otherwise modified from time to
time, the "Guarantee") in favor of Purchasers;
WHEREAS, the Purchase Agreement requires the Additional Guarantor to
become a party to the Guarantee; and
WHEREAS, the Additional Guarantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee. By executing and delivering this Assumption Agreement, the
Additional Guarantor, as provided in Section 5(n) of the Guarantee, hereby
becomes a party to the Guarantee as a Guarantor thereunder with the same force
and effect as if originally named therein as a Guarantor and, without limiting
the generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Guarantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in Schedule 1 to the
Guarantee. The Additional Guarantor hereby represents and warrants that each of
the representations and warranties contained in Section 3 of the Guarantee is
true and correct in all material respects on and as the date hereof as to such
Additional Guarantor (after giving effect to this Assumption Agreement) as if
made on and as of such date.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement
to be duly executed and delivered as of the date first above written.
[ADDITIONAL GUARANTOR]
By:
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Name:
Title:
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