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EXHIBIT 10.22
SCHEDULE TO FORM OF PUT AGREEMENT
The form of the Put Agreement is used for Put Agreements which Miami
Cruiseline Services Holdings II B.V. has entered into with the following
parties:
REPURCHASE AMOUNT
NAME FOR ALL OF THE SUBJECT STOCK
American Home Assurance Company $ 1,603,849.33
New York Life Insurance Company $ 1,603,849.34
The Norwestern Mutual Life Insurance $ 1,603,849.33
Company
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MIAMI CRUISELINE SERVICES HOLDINGS II B.V.
XXX XXXXXX XXXXX
XXXXXX, XX 00000-0000
September 17, 1998
Re: Put Agreement regarding Common Stock of Miami Cruiseline Services
Holdings I B.V.
Ladies and Gentlemen:
This Agreement is made in connection with the issuance by Miami Cruiseline
Services Holdings II B.V., a besloten vennootschap met beprekte
aansprakelijkheid (private company with limited liability) (the "Company") of
its Senior Subordinated Notes due 2006 (the "Notes") pursuant to a Debt
Securities Purchase Agreement dated September 17, 1998 by and between the
Company, as issuer of the Notes, and (together with its successors and permitted
assigns, the "Holder"), as Purchaser of a portion of the Notes. The rights and
obligations of the Company and the Purchasers with respect to the Notes are
governed by a Note Agreement dated September 17, 1998 (the "Note Agreement")
between the Company and the Holder, The Northwestern Mutual Life Insurance
Company and American Home Assurance Company. As part of the inducement to the
Holder to purchase the Notes, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company agrees that:
1. On the date hereof (the "Closing Date"), the Holder acquired from the
Company's corporate parent, Miami Cruiseline Services Holdings I B.V., a
besloten vennootschap met beprekte aansprakelijkheid (private company with
limited liability) (the "Parent") 3,333 shares of its Common Stock (the
"Parent Stock"). The Parent Stock so acquired by the Holder on the Closing
Date, together with any securities issued in respect of such Parent Stock
(whether by stock split, stock dividend, reclassification or in connection
with a corporate reorganization or otherwise), is referred to herein as the
"Subject Stock".
2. In consideration of the Holder's agreement to purchase the Notes, the
Company has agreed to enter into this Agreement and hereby agrees that the
Holder may, by exercising the Put Right provided by this Agreement, require
the Company to purchase all or any portion of the Subject Stock for a
purchase price (the "Purchase Price") equal (x) if all of the Subject Stock
is required to be purchased, to U.S. $ and
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(y) if only a portion of the Subject Stock is required to be purchased, to
a like percentage of such amount.
3. This Put Right is exercisable at any time prior to its expiry by the
Holder's delivery of a written notice to the Company (a "Put Notice");
provided, that the Put Right shall be deemed to have been exercised without
the need for delivery of a Put Notice upon the occurrence of an Insolvency
Event described in clause (b) of the definition thereof.
The term "Insolvency Event" shall mean (a) the acceleration of indebtedness
of the Company in an aggregate principal amount equal to or greater than
U.S. $8 million or (b) any of the events described in Annex I hereto.
4. The Purchase Price shall be payable in cash, in U.S. dollars, provided
that, at the Company's option, all or a portion of the Purchase Price may
be paid by the issuance of a note of the Company in a principal amount
equal to the portion of the Purchase Price represented by such note. Any
such note shall be payable in U.S. dollars; shall be subordinated to the
Company's guarantee obligations with respect to its Subsidiary's bank
indebtedness on substantially the same terms as the Notes; shall be pari
passu with other indebtedness of the Company (other than the Company's
guarantee of its Subsidiary's bank indebtedness) and shall not be senior to
the indebtedness represented by the Viad Note (as defined in the Note
Agreement); shall be prepayable without premium; shall bear interest at 15%
per annum (or 17% per annum on any overdue payment), calculated on the
basis of twelve 30-day months, compounded semi-annually, such interest to
be payable upon maturity or acceleration; and shall mature September 17,
2006 (subject to acceleration upon an Insolvency Event).
5. If not earlier exercised, the Put Right provided under this Agreement will
expire on the earlier of (i) September 15, 2006 or (ii) the consummation of
a Liquidity Event (as defined below); provided, that the Put Right shall be
exercisable in connection with a Liquidity Event until the conclusion of
the notice period related to such event referenced in paragraph 6.
The term "Liquidity Event" is defined in Annex II hereto.
6. The Company shall provide prompt written notice to the Holder of the
occurrence of an Insolvency Event or a Liquidity Event (provided that such
notice shall be given at least 20 days prior to the occurrence of any
Liquidity Event which is precipitated by action by the Company or by the
Parent). A Put Notice delivered in connection with a Liquidity Event may be
delivered to the Company within 20 days following delivery of the Put
Notice of such event.
7. The rights and obligations represented by this Agreement shall bind and
inure to the parties' successors and assigns; provided that the Holder's
rights under this Agreement shall only be assignable to, and in connection
with, a transfer of its Subject Stock which is permitted under the
shareholders agreement dated as of the date hereof among the shareholders
of the Parent Stock (as amended and in effect from time to time).
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8. Notices hereunder shall be in writing and shall be delivered by either (i)
delivery by a recognized national (U.S.A.) courier service or (ii) by
facsimile transmission (confirmed by delivery by a recognized national
courier service sent, to be delivered the following business day, on the
day of sending of such facsimile transmission).
Notices to the Company shall be delivered to: Miami Cruiseline Services
Holdings II B.V., c/o Berkshire Partners LLC, Xxx Xxxxxx Xxxxx, Xxxxxx, XX
00000-0000, Attn: Xxxxxxx X. Xxxxx.
Notices to the Holder shall be delivered to the attention of .
Notices addressed and delivered as herein provided shall be deemed to be
received when actually delivered to the address of the addressee (whether
or not delivery is accepted) or received by the telecopy machine of the
recipient. Any communication not so addressed and delivered shall be
ineffective.
9. This Agreement shall be governed by and construed in accordance with the
domestic substantive laws of the Netherlands without giving effect to any
choice or conflict of laws provision or rule that would cause the
application of the domestic substantive laws of any other jurisdiction.
[Remainder of page left intentionally blank]
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Very truly yours,
MIAMI CRUISELINE SERVICES HOLDINGS II
B.V.
By
----------------------------
Title:
Accepted and Agreed:
By
-------------------------------
Title:
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ANNEX I
(E) INSOLVENCY --
(I) INVOLUNTARY BANKRUPTCY PROCEEDINGS --
(A) a receiver, liquidator, custodian, curator or trustee of the
Company, or of all or any substantial part of its Property, is appointed by
court order and such order remains in effect for more than sixty (60) days;
or an order for relief is entered with respect to the Company, or the
Company is adjudicated a bankrupt or insolvent;
(B) all or any substantial part of the Property of the Company is
sequestered by court order and such order remains in effect for more than
sixty (60) days; or
(C) a proceeding for a faillisement is filed against the Company, or a
petition is filed against the Company under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation
law of any jurisdiction, whether now or hereafter in effect, and, in any
case, is not dismissed within sixty (60) days after such filing;
(ii) VOLUNTARY PETITIONS -- the Company commences a proceeding for a
faillisement or surseance van betaling or otherwise files a petition in
voluntary bankruptcy or seeks relief under any provision of any bankruptcy,
reorganization, arrangement, moratorium, suspension of payments,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect, or consents to the filing
of any petition against it under any such law; or
(iii) ASSIGNMENTS FOR BENEFIT OF CREDITORS, ETC. -- the Company makes
an assignment for the benefit of its creditors, or admits in writing its
inability, or fails, to pay its debts generally as they become due, or
consents to the appointment of a receiver, liquidator, curator or trustee
of the Company or of all or a substantial part of its Property;
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ANNEX II
LIQUIDITY EVENT - means either:
(a) a distribution in a bona fide public offering of at least
twenty-five percent (25%) (by number of shares, assuming that all options,
warrants or other rights to acquire the Parent Stock ("Rights") have been
exercised or converted into Parent Stock, whether or not such Rights are
then currently exercisable or convertible) of the Parent (or, in the case
of a public offering in the United States, of American Depositary Shares
representing such shares of Parent Stock), resulting in gross proceeds to
the Parent of not less than Twenty-Five Million Dollars ($25,000,000) (or
an equivalent amount in guilders) and, as a result of which offering and
any other related transactions, either:
(i) the Parent Stock or such American Depositary Shares become
registered under section 12(b) or 12(g) of the Exchange Act, or are
exempt from registration under section 12(g) thereof solely as a
result of the operation of Rule 12g3-2 under the Exchange Act; or
(ii) the Parent converts to, or otherwise becomes, a naamloze
vennootschap (public corporation with limited liability) and the
Parent Stock becomes listed on a designated offshore securities market
(as such term is defined in Rule 902(a) under the Securities Act); or
(iii) a Change in Control (as defined in the Note Agreement)
shall occur;
(b) all of the Parent Stock and any remaining Rights of the Parent are
sold to a third party which is not an Affiliate (as defined in the Note
Agreement) in an arm's length transaction; or
(c) either the Parent transfers all or substantially all of the
Property of the Company and its Subsidiaries or shall merge with or into or
consolidate or amalgamate with any other Person, as a result of which all
holders of the Parent Stock receive, in lieu of or in exchange for such
Parent Stock, securities of any Person other than the Parent or an
Affiliate, cash or other Property.
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