1
Exhibit 4.2
EXECUTION COPY
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM UNDER SUCH ACT. FURTHERMORE, THIS NOTE MAY NOT BE SOLD
OR OTHERWISE TRANSFERRED OTHER THAN IN COMPLIANCE WITH THE PROVISIONS OF SECTION
4 OF THIS NOTE.
THIS NOTE AND ALL OBLIGATIONS OF THE COMPANY HEREUNDER ARE SUBORDINATE AND
JUNIOR TO THE PRIOR PAYMENT IN FULL IN CASH OF ALL SENIOR INDEBTEDNESS AS
DEFINED HEREIN.
MIAMI CRUISELINE SERVICES HOLDINGS II B.V.
Junior Subordinated Note due May 15, 2009
US$10,000,000 May 15, 2009
FOR VALUE RECEIVED, the undersigned Miami Cruiseline Services Holdings
II B.V., a Dutch private company with limited liability (the "Company"), hereby
promises to pay to the order of Viad Corp., a Delaware corporation (the
"Seller"), or its registered assigns, at the address set forth in Section 13.6
of the Share Purchase Agreement dated as of July 31, 1998, between the Seller
and the Company (the "Share Purchase Agreement"), or at such other place as the
Holder of this Note shall from time to time have designated to the Company in
writing, on May 15, 2009 (the "Maturity Date"), Ten Million United States
Dollars (US $10,000,000), and to pay interest thereon as provided in Section 2
hereof.
1. THE NOTE. This Note is the junior subordinated note of the Company referred
to in Section 3.2 of the Share Purchase Agreement. Certain capitalized terms are
used herein as defined in Section 7 of this Note; other terms defined in the
Share Purchase Agreement and not otherwise defined in Section 7 hereof or
elsewhere in this Note are used herein with the meanings as defined in the Share
Purchase Agreement. The Company will furnish a copy of the Share Purchase
Agreement to any Holder of this Note free of charge upon written request.
2. PAYMENT OF INTEREST.
2.1. Payment of Interest. This Note shall accrue interest from the date
hereof, on the principal amount hereof from time to time unpaid, at a rate per
annum equal to twelve percent (12%) (compounded quarterly on the basis of a year
of 365 days, actual days elapsed). The interest shall be payable in the manner
set forth below, semiannually on March 1, and September
2
1, of each year and on the Maturity Date (unless such day is not a business day,
in which event on the next succeeding business day), with the first interest
payment to be made on March 1, 1999 (each of such dates being an "Interest
Payment Date").
Each payment of interest shall be payable in cash; provided, however,
that, subject to Section 2.2 hereof, prior to the Maturity Date, interest
payments on this Note may, at the Company's election, be paid by issuing
additional subordinated notes (the "PIK Notes") in an original principal amount
equal to such interest payment. PIK Notes issued hereunder shall have terms
substantially identical to the terms of this Note but shall be dated and bear
interest from the Interest Payment Date for which each such PIK Note is
issuable.
2.2. Applicable High Yield Discount Obligation Payments.
Notwithstanding Section 2.1, if the aggregate amount of accrued and unpaid
interest (including all interest in respect of the PIK Notes) and all unpaid
original issue discount on any Interest Payment Date following the fifth
anniversary of the issuance of this Note would, but for this provision, exceed
an amount equal to the product of (x) the issue price (as defined in Code
Sections 1273(b) and 1274(a)) of this Note and (y) the yield to maturity
(interpreted in accordance with Code Section 163(i)) of this Note (such product
being the "Maximum Accrual") then all accrued and unpaid interest (including, if
necessary, interest in respect of the PIK Notes) and original issue discount on
this Note in excess of an amount equal to the Maximum Accrual shall be paid in
cash by the Company to the holders of this Note on such Interest Payment Date.
3. PAYMENT OF PRINCIPAL. The Company covenants that so long as this Note is
outstanding:
3.1. Payment at Maturity of Note. On the Maturity Date, or on any
accelerated maturity of this Note, the Company shall pay the entire principal
amount of the Notes then outstanding, together with all accrued and unpaid
interest thereon.
3.2. Voluntary Prepayments.
3.2.1 Prepayment. The Company may at any time and from
time to time prepay without penalty or premium all or part of the
principal amount of the Notes then outstanding, at 100% of the
principal amount being prepaid, together with all accrued interest
thereon and all other amounts payable in connection therewith. From and
after the date such payment is made, the interest on the principal
amount so prepaid shall cease to accrue.
3.2.2 Selection of Notes for Voluntary Prepayment. Each
prepayment permitted by Section 3.2 shall be made so that the Notes
then held by each Holder shall be prepaid in a principal amount which
shall bear the same ratio, as nearly as may be, to the total principal
amount being prepaid as the principal amount of such Notes held by such
Holder shall bear to the aggregate principal amount of all Notes then
outstanding.
-2-
3
3.3. Mandatory Prepayments.
3.3.1 Mandatory Prepayment upon Consummation of Initial
Public Offering. Immediately upon the consummation of an Initial Public
Offering, the Company shall prepay the entire principal amount of all
of the Notes outstanding, on a date no later than 30 days following the
consummation of the Initial Public Offering, at a prepayment price
equal to 100% of the aggregate principal amount thereof, together with
all accrued interest thereon and all other amounts payable in
connection therewith, in cash. From and after the date such prepayment
is made, interest on the principal amount so prepaid shall cease to
accrue.
3.3.2 Mandatory Prepayment in the Event of a Change of
Control. In the event of a Change of Control, the Company shall prepay
the entire principal amount of all of the Notes then outstanding, on a
date no later than 30 days following the Change of Control, at a
prepayment price equal to 100% of the aggregate principal amount
thereof, together with all accrued interest thereon and all other
amounts payable in connection therewith, in cash. From and after the
date such prepayment is made, interest on the principal amount so
prepaid shall cease to accrue.
3.4. Permanent Retirement of Notes. Notes prepaid in full or otherwise
acquired by the Company shall be permanently retired and canceled and shall not
under any circumstances be reissued or resold.
3.5. Setoff. The Company hereby waives any right to setoff or
counterclaim it might have against any Holder of a Note in respect of any amount
payable by the Company thereunder.
3.6. Reports. The Company will furnish to the Holder: (i) 90 days after
the end of each fiscal year of the Company or at such other time as they are
first made available to any holder of Senior Indebtedness, the consolidated
balance sheet of the Company and its Subsidiaries as at the end of such fiscal
year and the consolidated statements of income, cash flows and changes in
stockholders' equity of the Company and its Subsidiaries for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
accompanied by the report of independent certified public accountants of
recognized national standing issued with respect thereto and (ii) 45 days after
the end of the first three fiscal quarters of each fiscal year of the Company or
at such other time as they are made available to any holder of Senior
Indebtedness, the consolidated balance sheet of the Company and its Subsidiaries
as at the end of such quarter and the consolidated statements of income, cash
flows and changes in stockholders' equity for such quarter and the portion of
the fiscal year then ended of the Company and its Subsidiaries, setting forth in
each case in comparative form the figures for the corresponding periods of the
previous fiscal year.
3.7. Notification. The Company shall promptly (i) notify each Holder of
a Note of any amendment to any Senior Indebtedness and (ii) send each Holder a
copy of such amendment.
-3-
4
3.8. No Cash Dividend Payments on any Preferred Stock or Common Stock.
So long as the Notes remain outstanding, in whole or in part, the Company shall
not pay cash dividends on any preferred or common stock of the Company without
the prior written consent of the Holders of a majority of the principal amount
outstanding of the Notes.
4. RESTRICTIONS ON TRANSFER; RELATED PROCEDURES.
4.1. Transfer Limitations. The Notes may be transferred to a third
party (including an affiliate of Viad Corp.), in whole or in part; provided,
that (i) such transfer is of not less than $1,000,000 in the aggregate, in
denominations of not less than $10,000 and (ii) such transferee shall not be
engaged in any business similar to or in competition with the businesses
heretofore or hereafter engaged in by Greyhound Leisure Services, Inc. and its
subsidiaries. Except as specifically permitted in this Section 4, the Holder may
not sell, assign, transfer or otherwise grant any direct or indirect interest in
this Note or the Indebtedness evidenced hereby.
4.2. Registration, Transfer and Exchange of Notes. The Company shall
keep at its principal office a register in which shall be entered the name and
address of the registered Holders of the Notes and all transfers, exchanges and
other issuances of the Notes or any replacement or substitute Notes. The
ownership of the Notes shall be proven by such register; provided, however, that
such register shall not be conclusive as to ownership of any Note in the event
of manifest error in such register. In connection with each proposed transfer of
Notes, the Holder will deliver written notice (the "Transfer Notice") to the
Company not fewer than five (5) business days prior to the proposed transfer,
describing in reasonable detail the proposed transfer (including, without
limitation, the identity of the transferee and the nature of its affiliation
with the Holder, together with an opinion of counsel, in form and substance and
from counsel reasonably satisfactory to the Company, to the effect that such
transfer of Notes may be effected without registration of such Notes under the
Securities Act of 1933, as amended). Thereafter, at any time prior to maturity
or redemption of such Notes, the Holder thereof may surrender such Notes
(subject to compliance with the applicable provisions of this Section 4)
together with a request to transfer at said office of the Company. Thereafter,
if and only if such transfer complies with Section 4.1, without expense (other
than transfer taxes, if any) to the Holder, the Company shall (so long as the
other provisions of this Section 4 have been satisfied) promptly issue in
exchange therefor another Note or Notes, dated the most recent date upon which
interest has been paid (whether in cash or by issuance of PIK Notes) on the
surrendered Notes (or, if no interest has been paid, September __, 1998), for
the same aggregate principal amount as the unpaid principal amount of the Notes
so surrendered, having the same maturity and rate of interest, containing the
same provisions and subject to the same terms and conditions as the Notes so
surrendered. Subject to the limitations provided in Section 4.1, each such new
Note shall be registered in the name of the transferee designated in the
Transfer Notice by the surrendering Holder.
-4-
5
5. SUBORDINATION TO THE SENIOR INDEBTEDNESS. The obligations of the
Company in respect of all Subordinated Indebtedness are hereby made subordinate
and junior to the prior payment in full of all Senior Indebtedness, to the
extent and in the manner hereinafter provided in this Section 5:
5.1. The obligations of the Company in respect of the principal amount
of and interest on, and for payment of any other amounts in respect of, the
Subordinated Indebtedness shall be subordinate and junior in right of payment,
to the extent and in the manner provided in this Section 5, to any Senior
Indebtedness, and the Subordinated Indebtedness is hereby subordinated as a
claim against the Company or any of its assets to the prior payment in full of
all Senior Indebtedness, in each case whether such right of payment or claim in
respect of the Subordinated Indebtedness be (i) in the ordinary course of
business, or (ii) in the event of any distribution of the assets of the Company
upon any voluntary or involuntary dissolution, winding-up, total or partial
liquidation or reorganization, restructuring or refinancing, whether by judicial
proceedings or otherwise, or bankruptcy, insolvency, receivership or other
statutory or common law proceedings or arrangements, including without
limitation any proceeding under the Bankruptcy Code of the Netherlands,
involving the Company, Miami Cruiseline Services Holdings I B.V., Miami
Cruiseline Services Holdings III B.V., any subsidiary thereof or any successor
of any thereof (each a "Loan Party"), the readjustment of the liabilities of any
Loan Party or any assignment for the benefit of creditors or any marshaling of
the assets or liabilities of any Loan Party (collectively referred to
hereinafter as a "Reorganization").
5.2. Notwithstanding anything to the contrary contained in this Note,
(a) the Company will not make, and no Holder of Subordinated Indebtedness will
accept or receive from, or on behalf of, the Company, any payment of any
Subordinated Indebtedness, whether in cash, securities or other property or by
way of conversions, exchange or otherwise, and (b) no such payment shall become
(or be considered) due, in each case until all amounts outstanding under the
Senior Loan Agreements and the Senior Notes have been paid in full and all
obligations to extend credit under the Senior Loan Agreements shall have been
irrevocably terminated; provided, however, that (i) the Company shall issue and
the Holder may accept and receive PIK Notes or, so long as no default should
exist or be created thereby in respect of the Senior Loan Agreements or the
Senior Notes, cash in payment of regularly scheduled interest obligations under
the Notes, and (ii) on and after the Maturity Date, so long as no default (or
event or circumstance which, whether with or without notice or passage of time
or both, would constitute a default or an event of default) under or with
respect to any Senior Indebtedness shall have occurred and then be continuing,
the Company may make, and the Holder may accept and receive, payments of
principal and interest.
5.3. In the event of any Reorganization relative to the Company or its
property, then all Senior Indebtedness shall first be paid in full before any
payment of any kind or character (whether in cash, securities or otherwise) is
made on account of any Subordinated Indebtedness, and in any such proceedings
seeking to effect a Reorganization any payment or distribution of any kind or
character, whether in cash or property or securities which may be payable or
-5-
6
deliverable in respect of any Subordinated Indebtedness, shall be paid or
delivered directly to the holders of the Senior Indebtedness or their
representative or representatives under the agreements pursuant to which the
Senior Indebtedness may have been issued for application in payment of the
Senior Indebtedness, unless and until all such Senior Indebtedness shall have
been paid and satisfied in full.
5.4. In any proceedings with respect to a Reorganization relating to
the Company or its property, unless and until all Senior Indebtedness shall have
been paid in full, each Holder of Subordinated Indebtedness hereby irrevocably
authorizes the holders of the Senior Indebtedness: (i) to prove and enforce any
claims on the Subordinated Indebtedness either in their own name or in the name
of the Holder of Subordinated Indebtedness as such Xxxxxx's attorney-in-fact,
(ii) to the extent not prohibited by provisions of applicable law which cannot
be waived, to vote claims comprising Subordinated Indebtedness and to accept or
reject on behalf of the Holders of Subordinated Indebtedness any plan proposed
in connection with any such Reorganization, (iii) to accept any payment or
distribution made with respect to the Subordinated Indebtedness and to apply
such payment or distribution to the payment of the Senior Indebtedness, and (iv)
to do any and all things and to execute any and all instruments necessary to
effectuate the foregoing either in their own name or in the name of the Holder
of Subordinated Indebtedness as such Xxxxxx's attorney-in-fact.
5.5. If, notwithstanding the foregoing, the Company, or any person or
entity on behalf of the Company, makes any payment on account of the
Subordinated Indebtedness at a time when such payment is not permitted by the
Notes or any payment or distribution of the assets of the Company of any kind or
character shall be received by any Holder of Subordinated Indebtedness (other
than any payments in cash or in kind as contemplated by Section 2 of this Note,
payments of principal permissible under Section 5.2 and any payments to Seller
under the Stock Purchase Agreement) before all amounts outstanding under the
Senior Loan Agreements or the Senior Notes have been paid in full, such payment
or distribution shall be held in trust by such Holder of Subordinated
Indebtedness apart from such Holder's other assets for the benefit of the
holders of Senior Indebtedness and paid over to such holders of Senior
Indebtedness or their representative or representatives under the agreements
pursuant to which the Senior Indebtedness may have been issued (who shall have
the right to convert any such assets into cash) for application (including the
application of such cash and cash proceeds) to the payment of Senior
Indebtedness until all Senior Indebtedness shall have been paid in full in
accordance with its terms, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
5.6. Except for the act of acceleration (and not any enforcement in
respect thereof) provided for in Section 6 hereof, no Holder of Subordinated
Indebtedness shall, without the prior written consent of a majority of the
holders of the outstanding principal amount of the Senior Indebtedness and a
majority in outstanding principal amount of the Senior Notes, accelerate the
maturity of, or institute proceedings (whether in an action at law, suit in
equity, arbitration proceeding or other proceeding of a litigation or dispute
settlement nature) to enforce, any
-6-
7
Subordinated Indebtedness notwithstanding any term or provision to the contrary
contained in the Notes or the Share Purchase Agreement or in any agreement or
instrument relating thereto; provided, however, that the provisions of this
sentence shall not apply to an action instituted on or after the Maturity Date
(unless there shall have occurred and been continuing on such day any default or
event or circumstance which (whether with or without notice or passage of time
or both), would constitute a default or an event of default under the Senior
Loan Agreements or in respect of any other Senior Indebtedness then outstanding,
in which case such provisions shall not apply to an action instituted on or
after the later of (i) the Maturity Date or (ii) sixty days after the Holder
notifies the Company or the lenders under the Senior Loan Agreements of its
intent to institute such action). Without limiting the generality of the
foregoing sentence, in no event shall any Holder of Subordinated Indebtedness,
without such written consent, commence or join with any other creditor or
creditors of any Loan Party in commencing any proceeding against any Loan Party
seeking to effect a Reorganization of any Loan Party.
5.7. For the purposes of this Section 5, no Senior Indebtedness shall
be deemed to have been paid in full unless the holder thereof shall have
received and have been permitted to retain cash equal to the amount thereof then
outstanding.
5.8. Each Holder of this Note, by its acceptance hereof, agrees that,
until all Senior Indebtedness is repaid in full, it will not exercise any right
of reimbursement, subrogation, contribution, offset or other claim against any
creditor of any Loan Party arising by contract or operation of law in connection
with any payment made or required to be made by such Holder. After payment in
full, of all Senior Indebtedness, any Holder shall be entitled to such rights of
reimbursement, subrogation, contribution and offset to the fullest extent
permitted by law.
5.9. The provisions of this Section 5 are for the benefit of the
holders of Senior Indebtedness and may be enforced directly by them against any
Holder of the Notes. Each Holder of this Note acknowledges and agrees, by
acceptance hereof, that the holders of the Senior Indebtedness have relied upon
and will continue to rely upon the subordination provided for herein in entering
into the Senior Loan Agreements and any other agreements relating to the Senior
Indebtedness to which they are a party and making the extensions of credit
provided for therein or otherwise constituting Senior Indebtedness. The Holder
of this Note hereby waives notice of or proof of reliance hereon.
5.10. The provisions of this Section 5 are for the purpose of defining
the relative rights of the holders of the Senior Indebtedness on the one hand,
and the Holder of the Notes on the other hand, and none of such provisions shall
impair, as between the Company and the Holders of the Notes, the obligation of
the Company, which is unconditional and absolute, to pay to any such Holder the
principal thereof and interest thereon.
5.11. No holder of Senior Indebtedness shall be prejudiced in its right
to enforce the subordination contained herein in accordance with the terms
hereof by any act or failure to act on the part of the Company.
-7-
8
5.12. The subordination provisions contained herein may not be
rescinded, canceled, amended or modified in any way without the prior written
consent thereto of the holders of at least a majority in principal amount of the
Senior Indebtedness to be affected by such rescission, cancellation, amendment,
modification or shortening.
5.13. The subordinations effected, and the rights created, by this
Section 5 shall not be affected by (i) any amendment of or any addition of or
supplement to any instrument, document or agreement relating to any Senior
Indebtedness, (ii) any exercise or non-exercise of any right, power or remedy
under or in respect of any Senior Indebtedness or any instrument, document or
agreement relating thereto, (iii) the release, sale, exchange or surrender, in
whole or in part, of any part of the assets, property or business of any Loan
Party to which the holders of, or any guarantor of or pledgor securing, any
Senior Indebtedness may be entitled or any security for such pledge or guaranty,
or (iv) any waiver, consent, release, indulgence, extension, renewal,
modification, delay, or other action, or inaction or omission in respect of any
Senior Indebtedness or any instrument, document or agreement relating thereto or
any security therefor or pledge or guaranty thereof, whether or not the Holder
of this Note shall have had notice or knowledge of any of the foregoing and
regardless of whether the Holder of this Note shall have consented or objected
thereto.
5.14. The Company agrees not to publish or give, or to permit any of
its subsidiaries, affiliates or agents to publish or give, or to acquiesce in
the publishing or giving of, any financial statement or other credit information
to any creditor or prospective creditor of the Company or any of its
subsidiaries which refers to or indicates the existence of the Subordinated
Indebtedness without also stating that the Subordinated Indebtedness is
subordinated to the prior payment in full of all Senior Indebtedness on the
terms and conditions contained in this Section 5.
6. ACCELERATION.
6.1. Automatic Acceleration Upon Certain Events. If (a) the
Indebtedness evidenced by the Senior Notes and the Senior Loan Agreements shall
be accelerated pursuant to the default provisions thereof or (b) the Company
shall (i) commence a voluntary case under the Bankruptcy Code of the Netherlands
as from time to time in effect, or authorize, by appropriate proceedings of its
board of directors or other governing body, the commencement of such a voluntary
case; (ii) have entered against it an order for relief in any involuntary case
under the Bankruptcy Code of the Netherlands which order remains undischarged
and unstayed for ninety (90) consecutive days; (iii) seek relief as a debtor
under any applicable law, other than the Bankruptcy Code of the Netherlands, of
any jurisdiction relating to the liquidation or reorganization of debtors or to
the modification or alteration of the rights of creditors, or consent to or
acquiesce in such relief; (iv) be the subject of an order by a court of
competent jurisdiction (A) finding it to be bankrupt or insolvent, (B) ordering
or approving its liquidation, reorganization or any modification or alteration
of the rights of its creditors, or (C) assuming custody of, or appointing a
receiver or other custodian for, all or substantially all of its property which
remains undischarged and
-8-
9
unstayed for more than sixty (60) consecutive days; or (v) make an assignment
for the benefit of, or enter into a composition with, its creditors, or appoint
or consent to the appointment of a receiver or other custodian for all or
substantially all of its property; then, the unpaid balance of the Notes shall
automatically become due and payable, together with interest accrued hereon,
without presentation, presentment, protest or further demand or notice of any
kind, all of which are hereby expressly waived, and the Holder may proceed,
subject to Section 5 hereof, to enforce payment of such amount or part thereof
in such manner as it may elect.
6.2. Optional Acceleration upon Event of Default. If the Company fails
(i) to make any payment of interest under the Notes on an Interest Payment Date
(whether in cash or by delivery of additional PIK Notes) in accordance with
Section 2 hereof, (ii) to pay in cash all principal and interest outstanding
under the Notes by the close of business on the Maturity Date or (iii) to comply
with Section 3.3.1, 3.3.2 or 3.8, then any Holder may notify the Company of such
default. The Company will promptly notify all other Holders of Notes of such
default. If such default shall not have been cured or waived by the Holders of a
majority of the principal amount outstanding of the Notes within 30 days of
receipt of such default notice by the Company, the Holders of a majority of the
principal amount outstanding of the Notes may declare all amounts thereunder to
be immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Company and the Holder
may proceed, subject to Section 5 hereof, to enforce payment of such amount or
part thereof in such manner as it may elect.
7. DEFINITIONS. As used herein, the following terms shall have the meanings
indicated:
7.1. The term "Change of Control" shall mean such time as: (a)
Berkshire Cruise Holdings LLC, and its affiliates (collectively, "Berkshire")
beneficially own securities of the Company representing less than eighty percent
(80%) of the voting power of all classes of voting securities of the Company
that Berkshire beneficially owned on the date of the closing under the Share
Purchase Agreement; or (b) a sale or transfer of all or substantially all of the
assets of the Company to any person or group has been consummated; or (c) during
any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Company (together with any new
directors whose election was approved by a vote of a majority of the directors
then still in office, who either were directors at the beginning of such period
or whose election or nomination for the election was previously so approved)
cease for any reason to constitute a majority of the directors of the Company
then in office.
7.2. The term "Company" shall have the meaning set forth in the first
paragraph of this Note.
7.3. The terms "consolidated" and "consolidating", when used with
reference to any term, shall mean that term as applied to the accounts of the
Company and all of its subsidiaries.
-9-
10
7.4. The term "Holder" shall mean the payee of this Note and each payee
of any PIK Note, unless such payee shall have presented such Note to the Company
for transfer, in whole or in part, in accordance with the terms and in
compliance with the conditions of Section 4 hereof, in which case the term
"Holder" shall mean each subsequent holder of an interest in this Note or any
PIK Note.
7.5. The term "Indebtedness" shall mean all liabilities and obligations
(including without limitation obligations to repay the principal amounts of
borrowed money, pay interest thereon and prepayment or other premiums or
penalties and to pay or reimburse fees, indemnities and expenses) in respect of
debt (including without limitation obligations for borrowed money, obligations
evidenced by bonds, notes, debentures or similar instruments, obligations in
respect of the deferred purchase price for goods and services other than trade
payables incurred in the ordinary course of business and obligations in respect
of capital leases), or under any interest rate cap, swap, collar or other
agreements or arrangements intended to protect against fluctuations in interest
rates, or under any reimbursement obligation relating to a letter of credit, or
any guarantee in respect of any of the foregoing.
7.6. The term "Initial Public Offering" shall mean an underwritten
public offering of Common Stock pursuant to an effective registration statement
under the Securities Act of 1933, as amended, and shall, in addition, include
any sale, pursuant to such an underwritten registered public offering of any
common stock by any affiliate of the Company, the net proceeds of which are
contributed or loaned to the Company.
7.7. The term "Interest Payment Date" shall have the meaning set forth
in Section 2 of this Note.
7.8. The term "legal requirement" shall mean any federal, state, local
or foreign law, statute, standard, ordinance, code, order, rule, regulation,
resolution, promulgation, or any order, judgment or decree of any court,
arbitrator, tribunal or governmental authority, or any license, franchise,
permit or similar right granted under any of the foregoing, or any similar
provision having the force and effect of law.
7.9. The term "Loan Party" shall have the meaning set forth in Section
5.1 of this Note.
7.10. The term "Maturity Date" shall have the meaning set forth in the
first paragraph of this Note.
7.11. The term "Note" or "Notes" shall mean this Note, the PIK Notes
and any notes issued in partial or full exchange for this Note or any PIK Note
pursuant to Section 4 hereof.
7.12. The term "PIK Notes" shall have the meaning set forth in Section
2 of this Note.
-10-
11
7.13. The term "Reorganization" shall have the meaning set forth in
Section 5.1 of this Note.
7.14. The term "Seller" shall have the meaning set forth in the first
paragraph of this Note.
7.15. The term "Senior Indebtedness" shall mean: (i) all Indebtedness
of the Company and its subsidiaries arising under the Credit Agreement dated as
of the date hereof among Miami Cruiseline Services Holdings III B.V., the
Company, the Lenders named therein and Credit Suisse First Boston (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing,
replacing or restructuring (including, without limitation, increasing the amount
of available borrowings thereunder) all or a portion of the Indebtedness under
any such agreement or any successor or replacement agreement and whether by the
same or any other agents, lender or group of lenders (collectively, the "Senior
Loan Agreements"); (ii) all Indebtedness evidenced by the Notes (as defined in
the Debt Securities Purchase Agreement dated as of the date hereof (the "Senior
Note Purchase Agreement") among the Company, New York Life Insurance Company,
American Home Assurance Company and The Northwestern Mutual Life Insurance
Company, as may be amended from time to time, including any notes issued in
replacement thereof upon any transfer of such Notes (collectively, the "Senior
Notes"); (iii) all Indebtedness of the Company and its subsidiaries arising
under, or in respect of, any interest rate cap, swap, collar or other agreements
or arrangements intended to protect against fluctuations in interest rates with
respect to any Senior Indebtedness; (iv) all other Indebtedness of the Company
or any subsidiary of the Company whether incurred prior to, on or after the date
hereof, unless, in the case of any particular Indebtedness, the instruments
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Notes; (v) the principal of, and premium, if any, on, all
renewals, extensions, restructurings and refundings of Senior Indebtedness as
defined in clauses (i), (ii), (iii) and (iv) above, and guarantees of the
foregoing; (vi) all fees, costs, indemnities, expenses, reimbursement
obligations and other obligations payable under the Senior Loan Agreements or
any other agreement relating thereto or in respect of Senior Indebtedness as
defined in clauses (i), (ii), (iii), (iv) and (v) above accrued to the date of
payment, whether before or after the institution by or against the Company or
any of its subsidiaries of proceedings under the Bankruptcy Code of the
Netherlands, and guarantees of the foregoing; and (vii) without limiting the
generality of the foregoing, all interest arising on or with respect to Senior
Indebtedness as defined in clauses (i), (ii), (iii), (iv), (v) and (vi) above
accrued to the date of payment, whether before or after the institution by or
against the Company or any of its subsidiaries of proceedings under the
Bankruptcy Code of the Netherlands at the rate provided for in the documentation
with respect to such Senior Indebtedness, whether or not such interest is an
allowed claim under applicable law, and guarantees of the foregoing. Any and all
amounts of Senior Indebtedness outstanding shall continue to constitute Senior
Indebtedness for all purposes of the Notes notwithstanding that such Senior
Indebtedness or any claim in respect thereof may
-11-
12
be disallowed, avoided or subordinated pursuant to insolvency law or equitable
principles for any reason, including, without limitation, as a fraudulent
transfer or conveyance.
7.16. The term "Senior Loan Agreements" shall have the meaning set
forth in Section 7.15 of this Note.
7.17. The term "Senior Notes" shall have the meaning set forth in
Section 7.15 of this Note.
7.18. The term "Share Purchase Agreement" shall have the meaning set
forth in the first paragraph of this Note.
7.19. The term "Subordinated Indebtedness" shall mean (i) the principal
of and interest and all other obligations arising on or with respect to all
Indebtedness of the Company to the Holder evidenced by the Notes, and (ii) any
and all claims, damages and liabilities of any nature whatsoever arising
hereunder or with respect to any Subordinated Indebtedness as defined in clause
(i) above which the Holder of Subordinated Indebtedness may now or hereafter
have against the Company or any of its subsidiaries.
7.20. The term "Transfer Notice" shall have the meaning set forth in
Section 4.2 of this Note.
8. MISCELLANEOUS.
8.1. Confidentiality. Unless such information is otherwise publicly
available, all information furnished to or obtained by any Holder of this Note
or any or its affiliates pursuant to Section 3.6 shall be deemed proprietary and
confidential, and shall be held in confidence by the recipient thereof;
provided, that any or all such information may be disclosed to any prospective
purchaser of Notes so long as such prospective purchaser agrees, in writing, to
hold such information in confidence.
8.2. Notices. Any notice or other communication to the Company or the
Seller in connection with this Note shall be deemed to be delivered and received
by such addressee if delivered or made in the manner stipulated in the notice
provisions of the Share Purchase Agreement and to the addresses specified
therein. Notice to any other holder of record of a Note will be made in such
manner to such holder at its address set forth in the register referred to in
Section 4 hereof.
8.3. Withholding of Taxes, etc. There shall be withheld from any
payment of the principal of, or interest on, this Note, any and all amounts (in
respect of Taxes or otherwise) required to be withheld under legal requirements
applicable to the Company, the Notes or the payee in question. The Seller and
each transferee or prospective transferee of this Note, by its acceptance of
this Note, agrees to execute and deliver to the Company any and all Tax related
-12-
13
forms, certificates or other documents that the Company may request in
connection with this Note or the payment of the principal of this Note or
interest thereon including, without limitation, documentation in form and
substance satisfactory to the Company in its reasonably exercised discretion
necessary to support any reduction in withholding of Taxes, and otherwise to
comply with all applicable legal requirements.
8.4. Waiver of Presentment, etc. The parties hereto, including the
undersigned maker and all guarantors and endorsers, hereby waive presentment,
demand, notice, protest and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided herein, and assent to extensions of the time of
payment, or forbearance or other indulgence without notice.
8.5. Headings. The headings in this Note are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof.
8.6. Binding Effect. The terms of this Note shall bind and inure to the
benefit of the Company, the Seller and their respective successors, permitted
assigns and representatives.
8.7. Governing Law. This Note shall be governed by and construed in
accordance with the domestic substantive laws of the State of New York without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction.
8.8. WAIVER OF RIGHT TO JURY TRIAL. EACH OF THE COMPANY, BY ITS
EXECUTION HEREOF AND THE HOLDER, BY ITS ACCEPTANCE HEREOF, WAIVES ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS NOTE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY
AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS NOTE, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE
COMPANY AND THE HOLDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER
IN ENTERING INTO THE SHARE PURCHASE AGREEMENT PURSUANT TO WHICH THIS NOTE HAS
BEEN ISSUED AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. THE COMPANY AND THE HOLDER FURTHER WARRANT AND REPRESENT THAT
EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE. IN THE EVENT OF LITIGATION, THIS NOTE MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
-13-
14
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed by its officer thereunto duly authorized.
MIAMI CRUISELINE SERVICES HOLDINGS II B.V.
By /s/ Xxxxxxx Xxxxx
---------------------------------------
Title: Director A
The undersigned accepts
the terms of this Note:
VIAD CORP.
By /s/ Xxxxx X. Xxxxxx
--------------------------------
Title: Vice President
-14-
