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EXHIBIT 10.34
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CREDIT AGREEMENT
among
ONEX FOOD SERVICES, INC.,
SC INTERNATIONAL SERVICES, INC.,
CATERAIR HOLDINGS CORPORATION,
CATERAIR INTERNATIONAL CORPORATION,
VARIOUS BANKS,
BANKERS TRUST COMPANY
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as CO-ARRANGERS,
BANKERS TRUST COMPANY,
as SYNDICATION AGENT,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as ADMINISTRATIVE AGENT,
and
THE BANK OF NEW YORK,
as CO-AGENT
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Dated as of September 29, 1995
and Amended and Restated
as of August 28, 1997
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit.............................. 1
1.01 The Commitments......................................... 1
1.02 Minimum Amount of Each Borrowing........................ 4
1.03 Notice of Borrowing..................................... 4
1.04 Disbursement of Funds................................... 5
1.05 Notes................................................... 6
1.06 Conversions............................................. 7
1.07 Pro Rata Borrowings..................................... 8
1.08 Interest................................................ 8
1.09 Interest Periods........................................ 9
1.10 Increased Costs, Illegality, etc........................ 10
1.11 Compensation............................................ 12
1.12 Change of Lending Office................................ 13
1.13 Replacement of Banks.................................... 13
SECTION 2. Letters of Credit....................................... 15
2.01 Letters of Credit....................................... 15
2.02 Minimum Stated Amount................................... 17
2.03 Letter of Credit Requests............................... 17
2.04 Letter of Credit Participation.......................... 17
2.05 Agreement to Repay Letter of Credit Drawings............ 19
2.06 Increased Costs......................................... 21
2.07 Indemnification......................................... 22
SECTION 3. Fees; Reductions of Commitment.......................... 22
3.01 Fees.................................................... 22
3.02 Voluntary Termination of Unutilized Commitments......... 23
3.03 Mandatory Reduction of Commitments...................... 24
SECTION 4. Prepayments; Payments; Taxes............................ 26
4.01 Voluntary Prepayments................................... 26
4.02 Mandatory Repayments.................................... 27
4.03 Method and Place of Payment............................. 29
4.04 Net Payments............................................ 29
(i)
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SECTION 5. Conditions Precedent to the Restatement Effective Date.. 31
5.01 Execution of Agreement; Notes........................... 31
5.02 Fees, etc............................................... 31
5.03 Officer's Certificate................................... 31
5.04 Opinions of Counsel and Accountants..................... 32
5.05 Corporate Documents; Proceedings; etc................... 32
5.06 Caterair Credit Agreement; etc. ........................ 33
5.07 Issuance of 9-1/4% Senior Subordinated Notes. .......... 33
5.08 Pledge Agreements....................................... 33
5.09 Security Agreement...................................... 34
5.10 Mortgage Amendments; Title Insurance.................... 34
5.11 Subsidiaries Guaranty; Designated Onex Sub Guaranty..... 35
5.12 Adverse Change; Approvals; etc.......................... 35
5.13 Litigation.............................................. 36
5.14 Solvency Certificate; Insurance Certificates............ 36
5.15 Pro Forma Balance Sheets................................ 36
5.16 Original Credit Agreement............................... 36
5.17 Caterair Holdings Subordination Agreement; etc.......... 37
5.18 13% Senior Subordinated Note Tender Offer; 13% Senior
Subordinated Note Consents; 13% Senior Subordinated
Note Indenture Supplement........................... 37
SECTION 6. Conditions Precedent to all Credit Events............... 38
6.01 Restatement Effective Date.............................. 38
6.02 No Default; Representations and Warranties.............. 38
6.03 Notice of Borrowing; Letter of Credit Request........... 38
SECTION 7. Representations, Warranties and Agreements.............. 39
7.01 Corporate Status........................................ 39
7.02 Corporate Power and Authority........................... 40
7.03 No Violation............................................ 40
7.04 Governmental Approvals.................................. 40
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Financial Projections.................. 41
7.06 Litigation.............................................. 42
7.07 True and Complete Disclosure............................ 42
7.08 Use of Proceeds; Margin Regulations..................... 43
7.09 Tax Returns and Payments................................ 43
7.10 Compliance with ERISA................................... 44
(ii)
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7.11 The Security Documents.................................. 45
7.12 Representations and Warranties in Other Documents....... 46
7.13 Properties.............................................. 46
7.14 Capitalization.......................................... 46
7.15 Subsidiaries............................................ 47
7.16 Compliance with Statutes, etc........................... 47
7.17 Investment Company Act.................................. 48
7.18 Public Utility Holding Company Act...................... 48
7.19 Environmental Matters................................... 48
7.20 Labor Relations......................................... 49
7.21 Patents, Licenses, Franchises and Formulas.............. 49
7.22 Indebtedness; Subordination Provisions.................. 50
7.23 Consummation of Transaction............................. 51
SECTION 8. Affirmative Covenants................................... 51
8.01 Information Covenants................................... 51
8.02 Books, Records and Inspections.......................... 56
8.03 Maintenance of Property; Insurance...................... 57
8.04 Corporate Franchises.................................... 58
8.05 Compliance with Statutes, etc........................... 59
8.06 Compliance with Environmental Laws...................... 59
8.07 ERISA................................................... 60
8.08 End of Fiscal Years; Fiscal Quarters.................... 61
8.09 Performance of Obligations.............................. 61
8.10 Payment of Taxes........................................ 62
8.11 Additional Security; Further Assurances................. 62
8.12 Corporate Separateness.................................. 63
8.13 Caterair Holdings Secured Note and Caterair Holdings
Unsecured Debentures................................ 64
8.14 Capital Contributions................................... 64
8.15 13% Senior Subordinated Note Tender Offer; Escrows...... 64
8.16 Termination of Existing Interest Rate Protection
Agreements.......................................... 65
SECTION 9. Negative Covenants...................................... 65
9.01 Liens................................................... 65
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.. 68
9.03 Dividends, etc.......................................... 73
9.04 Indebtedness............................................ 75
9.05 Advances, Investments and Loans......................... 78
(iii)
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9.06 Transactions with Affiliates............................ 82
9.07 Capital Expenditures.................................... 83
9.08 Combined Interest Coverage Ratio........................ 85
9.09 Combined Leverage Ratio................................. 86
9.10 Limitation on Payments of Certain Indebtedness;
Modifications of Certain Indebtedness;
Modifications of Certificates of Incorporation,
By-Laws and Certain Other Agreements; etc........... 86
9.11 Limitation on Certain Restrictions on Subsidiaries...... 87
9.12 Limitation on Issuance of Capital Stock................. 88
9.13 Business; etc........................................... 88
9.14 Limitation on Creation of Subsidiaries.................. 90
9.15 Senior Subordinated Notes; etc.......................... 91
SECTION 10. Events of Default...................................... 91
10.01 Payments............................................... 91
10.02 Representations, etc................................... 91
10.03 Covenants.............................................. 91
10.04 Default Under Other Indebtedness....................... 91
10.05 Bankruptcy, etc........................................ 92
10.06 ERISA.................................................. 93
10.07 Security Documents..................................... 94
10.08 Guaranties; etc........................................ 94
10.09 Judgments.............................................. 94
10.10 Change of Control...................................... 94
10.11 American Airlines Catering Agreements.................. 94
10.12 Certain Caterair Agreements............................ 95
10.13 Caterair Holdings Subordination Agreement and Escrow
Agreement........................................... 95
SECTION 11. Definitions and Accounting Terms....................... 96
11.01 Defined Terms.......................................... 96
SECTION 12. The Agents.............................................130
12.01 Appointment............................................130
12.02 Nature of Duties.......................................130
12.03 Lack of Reliance on the Agents.........................130
12.04 Certain Rights of the Agents...........................131
12.05 Reliance...............................................131
(iv)
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12.06 Indemnification........................................131
12.07 Each Agent in its Individual Capacity..................132
12.08 Holders................................................132
12.09 Resignation by the Agents..............................132
SECTION 13. Miscellaneous..........................................133
13.01 Payment of Expenses, etc...............................133
13.02 Right of Setoff........................................135
13.03 Notices................................................135
13.04 Benefit of Agreement...................................136
13.05 No Waiver; Remedies Cumulative.........................138
13.06 Payments Pro Rata......................................138
13.07 Calculations; Computations.............................139
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL.........................139
13.09 Counterparts...........................................141
13.10 Effectiveness..........................................141
13.11 Headings Descriptive...................................141
13.12 Amendment or Waiver; etc...............................141
13.13 Survival...............................................143
13.14 Domicile of Loans......................................143
13.15 Confidentiality........................................143
13.16 Register...............................................145
13.17 Certain Matters Relating to OFSI.......................146
13.18 Certain Post-Closing Actions...........................147
13.19 Non-Continuing Banks...................................147
SECTION 14. OFSI Guaranty..........................................147
14.01 The Guaranty...........................................147
14.02 Bankruptcy.............................................148
14.03 Nature of Liability....................................148
14.04 Independent Obligation.................................148
14.05 Authorization..........................................148
14.06 Reliance...............................................149
14.07 Subordination..........................................150
14.08 Waiver.................................................150
14.09 No Recourse Against Class B Assets.....................152
(v)
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SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Existing Letters of Credit
SCHEDULE IV Real Property
SCHEDULE V Capitalization
SCHEDULE VI Subsidiaries
SCHEDULE VII Existing Indebtedness
SCHEDULE VIII Class B Assets
SCHEDULE IX Insurance
SCHEDULE X Existing Liens
SCHEDULE XI Existing Investments
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Revolving Note
EXHIBIT B-2 Swingline Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Opinion of ▇▇▇▇, Scholer, Fierman, ▇▇▇▇ &
Handler, LLP (Corporate)
EXHIBIT E-2 Opinion of ▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP
(Tax)
EXHIBIT E-3 Accountant's Letter from Price Waterhouse
EXHIBIT F Officers' Certificate
EXHIBIT G-1 Amended and Restated General Pledge Agreement
EXHIBIT G-2 Amended and Restated OFSI Pledge Agreement
EXHIBIT G-3 Amended and Restated Designated Onex Sub Pledge
Agreement
EXHIBIT H Amended and Restated Security Agreement
EXHIBIT I-1 Amended and Restated Subsidiaries Guaranty
EXHIBIT I-2 Amended and Restated Designated Onex Sub Guaranty
EXHIBIT J Solvency Certificate
EXHIBIT K Intercompany Note
EXHIBIT L Amended and Restated Caterair Holdings Subordination
Agreement
EXHIBIT M Subordination Provisions
EXHIBIT N Letter Agreement
EXHIBIT O Assignment and Assumption Agreement
(vi)
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September 29,
1995, and amended and restated as of August 28, 1997, among ONEX FOOD SERVICES,
INC., a Delaware corporation ("OFSI"), SC INTERNATIONAL SERVICES, INC. a
Delaware corporation (the "Borrower"), CATERAIR HOLDINGS CORPORATION, a Delaware
corporation ("Caterair Holdings"), CATERAIR INTERNATIONAL CORPORATION, a
Delaware corporation ("Caterair"), the Banks (as defined in Section 11) party
hereto from time to time, BANKERS TRUST COMPANY and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Co-Arrangers (in such capacity, collectively, the "Co-Arrangers," and each a
"Co-Arranger"), BANKERS TRUST COMPANY, as Syndication Agent (in such capacity,
the "Syndication Agent"), THE BANK OF NEW YORK, as Co-Agent (in such capacity,
the "Co-Agent"), and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent (in such capacity, together with any successor thereto
appointed pursuant to Section 12.09, the "Administrative Agent"). All
capitalized terms used herein and defined in Section 11 are used herein as
therein defined.
W I T N E S S E T H :
WHEREAS, OFSI, the Borrower, Caterair Holdings, Caterair, the
Original Banks, the Co-Arrangers, the Co-Agent, and the Administrative Agent are
parties to a Credit Agreement, dated as of September 29, 1995 (as amended,
modified or supplemented through, but not including, the date hereof, the
"Original Credit Agreement"); and
WHEREAS, subject to and upon the terms and conditions set forth
herein, the parties hereto wish to amend and restate the Original Credit
Agreement in its entirety in the form of this Agreement;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Bank severally agrees, at any time and from
time to time after the Restatement Effective Date and prior to the Final
Maturity Date, to make a revolving loan or loans (each a "Revolving Loan" and,
collectively, the "Revolving Loans") to the Borrower, which Revolving Loans:
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(i) shall, at the option of the Borrower, be Base Rate Loans or
Eurodollar Loans, provided that (x) except as otherwise specifically
provided in Section 1.10(b), all Revolving Loans comprising the same
Borrowing shall at all times be of the same Type and (y) no Revolving
Loans maintained as Eurodollar Loans may be incurred prior to the earlier
of (1) the 15th day after the Restatement Effective Date and (2) the
Syndication Date;
(ii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iii) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which, when added to the product of (x) such
Bank's Adjusted RL Percentage and (y) the sum of (I) the aggregate amount
of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which
are repaid with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Revolving Loans) at such time and (II)
the aggregate principal amount of all Swingline Loans (exclusive of
Swingline Loans which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Adjusted Available Revolving Loan Commitment of
such Bank at such time; and
(iv) shall not exceed for all Banks at any time outstanding that
aggregate principal amount which, when added to the sum of (I) the amount
of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which
are repaid with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Revolving Loans) at such time and (II)
the aggregate principal amount of all Swingline Loans (exclusive of
Swingline Loans which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Total Available Revolving Loan Commitment at such
time.
Notwithstanding anything to the contrary contained in this Section 1.01(a) or
elsewhere in this Agreement, no Revolving Loans may be incurred on the
Restatement Effective Date.
(b) Subject to and upon the terms and conditions set forth herein,
the Swingline Bank agrees to make at any time and from time to time after the
Restatement Effective Date and prior to the Swingline Expiry Date, a revolving
loan or loans (each a "Swingline Loan" and, collectively, the "Swingline Loans")
to the Borrower, which Swingline Loans:
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(i) shall be made and maintained as Base Rate Loans;
(ii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iii) shall not exceed in aggregate principal amount at any time
outstanding, when combined with the aggregate principal amount of (x) all
Revolving Loans made by Non-Defaulting Banks then outstanding and (y) the
Letter of Credit Outstandings at such time, an amount equal to the
Adjusted Total Available Revolving Loan Commitment at such time (after
giving effect to any changes thereto on such date); and
(iv) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount.
The Swingline Bank shall not make any Swingline Loan after receiving a written
notice from the Borrower or the Required Banks stating that a Default or an
Event of Default exists and is continuing until such time as the Swingline Bank
shall have received written notice of (i) rescission of all such notices from
the party or parties originally delivering such notice, (ii) the waiver of such
Default or Event of Default by the Required Banks or (iii) the Administrative
Agent's good faith determination that such Default or Event of Default has
ceased to exist.
(c) On any Business Day, the Swingline Bank may, in its sole
discretion, give notice to the Banks that its outstanding Swingline Loans shall
be refunded with a Borrowing of Revolving Loans (provided that (x) such notice
shall be deemed to have been automatically given upon the occurrence of a
Default or an Event of Default under Section 10.05 or upon the exercise of any
of the remedies provided in the last paragraph of Section 10 and (y) to the
extent such notice is otherwise required to be given, such notice shall be
deemed to have been given on a certain day only if given before 3:00 P.M. (New
York time) on such day), in which case a Borrowing of Revolving Loans
constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing")
shall be made on the immediately succeeding Business Day by all Banks
(notwithstanding any termination of the Revolving Loan Commitments pursuant to
the last paragraph of Section 10) pro rata based on each Bank's Adjusted RL
Percentage (determined before giving effect to any termination of the Revolving
Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds
thereof shall be applied directly to the Swingline Bank to repay the Swingline
Bank for such outstanding Swingline Loans. Each Bank hereby irrevocably agrees
to make Revolving Loans upon one Business Day's notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified
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in writing by the Swingline Bank notwithstanding (i) the amount of the Mandatory
Borrowing may not comply with the minimum amount for Borrowings otherwise
required hereunder, (ii) whether any conditions specified in Section 6 are then
satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the
date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan
Commitment or the Adjusted Total Available Revolving Loan Commitment at such
time. In the event that any Mandatory Borrowing cannot for any reason be made on
the date otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each Bank hereby agrees that it shall forthwith purchase (as of
the date the Mandatory Borrowing would otherwise have occurred, but adjusted for
any payments received from the Borrower on or after such date and prior to such
purchase) from the Swingline Bank such participation in the outstanding
Swingline Loans as shall be necessary to cause the Banks to share in such
Swingline Loans ratably based upon their respective Adjusted RL Percentages
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10), provided that (x) all
interest payable on the Swingline Loans shall be for the account of the
Swingline Bank until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participation pursuant to this sentence is
actually made, the purchasing Bank shall be required to pay the Swingline Bank
interest on the principal amount of the participation purchased for each day
from and including the day upon which the Mandatory Borrowing would otherwise
have occurred to but excluding the date of payment for such participation, at
the overnight Federal Funds Rate for the first three days and at the rate
otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder
for each day thereafter.
1.02 Minimum Amount of Each Borrowing. The aggregate principal
amount of each Borrowing of Loans shall not be less than the Minimum Borrowing
Amount applicable to such Loans. More than one Borrowing may occur on the same
date, but at no time shall there be outstanding more than six Borrowings of
Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur
Revolving Loans hereunder (excluding Revolving Loans incurred pursuant to a
Mandatory Borrowing), the Borrower shall give the Administrative Agent at the
Notice Office at least one Business Day's prior written notice of each Base Rate
Loan and at least three Business Days' prior written notice of each Eurodollar
Loan to be made hereunder, provided that any such notice shall be deemed to have
been given on a certain day only if given before 11:00 A.M. (New York time) on
such day. Each such
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written notice (each a "Notice of Borrowing"), except as otherwise expressly
provided in Section 1.10, shall be irrevocable and shall be given by the
Borrower in the form of Exhibit A, appropriately completed to specify the
aggregate principal amount of the Revolving Loans to be made pursuant to such
Borrowing, the date of such Borrowing (which shall be a Business Day), whether
the Revolving Loans being made pursuant to such Borrowing are to be initially
maintained as Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the
initial Interest Period to be applicable thereto. The Administrative Agent shall
promptly give each Bank notice of such proposed Borrowing, of such Bank's
proportionate share thereof and of the other matters required by the immediately
preceding sentence to be specified in the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans
hereunder, the Borrower shall give the Swingline Bank not later than 12:00 Noon
(New York time) on the date that a Swingline Loan is to be incurred, written
notice or verbal notice promptly confirmed in writing of each Swingline Loan to
be incurred hereunder. Each such notice shall be irrevocable and specify in each
case (A) the date of Borrowing (which shall be a Business Day) and (B) the
aggregate principal amount of the Swingline Loans to be incurred pursuant to
such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(c), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of the Mandatory Borrowings as set forth in
Section 1.01(c).
(iii) Without in any way limiting the obligation of the Borrower to
confirm in writing any verbal notice of any Borrowing of Swingline Loans, the
Swingline Bank may act without liability upon the basis of verbal notice of such
Borrowing, believed by the Swingline Bank in good faith to be from the
President, a Vice President, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer or Controller of the Borrower prior to receipt of a written
confirmation. In each such case, the Borrower hereby waives the right to dispute
the Swingline Bank's record of the terms of such verbal notice of such Borrowing
of Swingline Loans absent gross manifest error on the part of the Administrative
Agent.
1.04 Disbursement of Funds. Not later than 12:00 Noon (New York
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 3:00 P.M. (New York time) on the date specified
pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, not
later than 12:00 Noon (New York time) on the date specified pursuant to Section
1.01(c)), each Bank will make available its pro rata portion (determined in
accordance with Section 1.07) of each such Borrowing requested to be made on
such date (or in the case of Swingline
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Loans, the Swingline Bank will make available the full amount thereof). All such
amounts will be made available in immediately available Dollar denominated funds
at the Payment Office, and the Administrative Agent will make available to the
Borrower at the Payment Office the aggregate of the amounts so made available by
the Banks (prior to 1:00 P.M. (New York time) on such day, to the extent of
funds actually received by the Administrative Agent on or prior to 12:00 Noon
(New York time) on such day). Unless the Administrative Agent shall have been
notified by any Bank prior to the date of Borrowing that such Bank does not
intend to make available to the Administrative Agent such Bank's portion of any
Borrowing to be made on such date, the Administrative Agent may assume that such
Bank has made such amount available to the Administrative Agent on such date of
Borrowing and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such Bank,
the Administrative Agent shall be entitled to recover such corresponding amount
on demand from such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Borrower and the Borrower agrees immediately to
pay such corresponding amount to the Administrative Agent. The Administrative
Agent shall also be entitled to recover on demand from such Bank or the
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Administrative Agent to the Borrower until the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (i) if
recovered from such Bank, the overnight Federal Funds Rate and (ii) if recovered
from the Borrower, the rate of interest applicable to the respective Borrowing,
as determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Bank from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Bank as a result of
any failure by such Bank to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of,
and interest on, the Loans made by each Bank shall be evidenced (i) if Revolving
Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-1 with blanks appropriately completed in
conformity herewith (each a "Revolving Note" and, collectively, the "Revolving
Notes") and (ii) if Swingline Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (the "Swingline Note").
(b) The Revolving Note issued to each Bank shall (i) be executed by
the Borrower, (ii) be payable to such Bank or its registered assigns and be
dated the
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Restatement Effective Date (or if issued thereafter, the date of issuance
thereof), (iii) be in a stated principal amount equal to the Revolving Loan
Commitment of such Bank (or if issued after the termination thereof, in a stated
principal amount equal to the outstanding Revolving Loans of such Bank at such
time) and be payable in the principal amount of the outstanding Revolving Loans
evidenced thereby from time to time, (iv) mature on the Final Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01,
and mandatory repayment as provided in Section 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(c) The Swingline Note issued to the Swingline Bank shall (i) be
executed by the Borrower, (ii) be payable to such Bank or its registered assigns
and be dated the Restatement Effective Date, (iii) be in a stated principal
amount equal to the Maximum Swingline Amount and be payable in the principal
amount of the Swingline Loans evidenced thereby from time to time, (iv) mature
on the Swingline Expiry Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans evidenced thereby, (vi)
be subject to voluntary prepayment as provided in Section 4.01, and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(d) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in any such notation or endorsement shall not affect the Borrower's
obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert, on
any Business Day occurring on or after the earlier of (1) the 15th day after the
Restatement Effective Date and (2) the Syndication Date, all or a portion equal
to at least the applicable Minimum Borrowing Amount of the outstanding principal
amount of Revolving Loans made to the Borrower pursuant to one or more
Borrowings of one or more Types of Revolving Loans into a Borrowing of another
Type of Revolving Loan, provided that (i) except as otherwise provided in
Section 1.10(b), Eurodollar Loans may be converted into Base Rate Loans only on
the last day of an Interest Period applicable to the Revolving Loans being
converted and no such partial conversion of Eurodollar Loans shall reduce the
outstanding principal amount of such Eurodollar Loans made pursuant to a single
Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii)
unless the Required Banks otherwise agree, Base Rate Loans may only be converted
into Eurodollar Loans if no Default or Event of Default
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15
is in existence on the date of the conversion, (iii) no conversion pursuant to
this Section 1.06 shall result in a greater number of Borrowings of Eurodollar
Loans than is permitted under Section 1.02 and (iv) Swingline Loans may not be
converted pursuant to this Section 1.06. Each such conversion shall be effected
by the Borrower giving the Administrative Agent at the Notice Office prior to
11:00 A.M. (New York time) at least three Business Days' prior written notice
(each a "Notice of Conversion") specifying the Revolving Loans to be so
converted, the Borrowing(s) pursuant to which such Revolving Loans were made
and, if to be converted into Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each Bank
prompt notice of any such proposed conversion affecting any of its Revolving
Loans.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans under
this Agreement shall be incurred from the Banks pro rata on the basis of their
Revolving Loan Commitments; provided, that all Borrowings of Revolving Loans
made pursuant to a Mandatory Borrowing shall be incurred from the Banks pro rata
on the basis of their Adjusted RL Percentages. It is understood that no Bank
shall be responsible for any default by any other Bank of its obligation to make
Loans hereunder and that each Bank shall be obligated to make the Loans provided
to be made by it hereunder, regardless of the failure of any other Bank to make
its Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan from the date of Borrowing
thereof until the earlier of (i) the maturity (whether by acceleration or
otherwise) of such Base Rate Loan and (ii) the conversion of such Base Rate Loan
to a Eurodollar Loan pursuant to Section 1.06, at a rate per annum which shall
be equal to the sum of the Applicable Margin plus the Base Rate in effect from
time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date of Borrowing thereof
until the earlier of (i) the maturity (whether by acceleration or otherwise) of
such Eurodollar Loan and (ii) the conversion of such Eurodollar Loan to a Base
Rate Loan pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a rate per
annum which shall, during each Interest Period applicable thereto, be equal to
the sum of the Applicable Margin plus the Eurodollar Rate for such Interest
Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest at a rate per annum equal to the greater of
(x) 2% per annum in excess of the rate otherwise applicable to Base Rate Loans
from time to time and (y) the rate which is 2% in excess of the rate then borne
by such Loans, in each case with such interest to be payable on demand.
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(d) Accrued (and theretofore unpaid) interest shall be payable (i)
in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall promptly notify the Borrower and the Banks thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods. At the time the Borrower gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to such Eurodollar Loan (in the case of any subsequent
Interest Period), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Borrower, be a one, two, three or six-month period, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Base Rate Loan) and each Interest
Period occurring thereafter in respect of such Eurodollar Loan shall
commence on the day on which the next preceding Interest Period applicable
thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins on
a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end
on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding
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17
Business Day; provided, however, that if any Interest Period for a
Eurodollar Loan would otherwise expire on a day which is not a Business
Day but is a day of the month after which no further Business Day occurs
in such month, such Interest Period shall expire on the next preceding
Business Day;
(v) unless the Required Banks otherwise agree, no Interest Period
may be selected at any time when a Default or an Event of Default is then
in existence; and
(vi) no Interest Period in respect of any Borrowing of Revolving
Loans shall be selected which extends beyond the Final Maturity Date.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any
Bank shall have determined in good faith (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto but,
with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the date of this
Agreement in any applicable law or governmental (including any NAIC) rule,
regulation, order, guideline or request (whether or not having the force
of law) or in the interpretation or administration thereof and including
the introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payment to any Bank of the principal of
or interest on such Eurodollar Loan or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference to,
the net income or profits of such Bank pursuant to the laws of the
jurisdiction in which it is organized or in which its principal office or
applicable lending office is located or any subdivision thereof or
therein) or
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18
(B) a change in official reserve requirements, but, in all events,
excluding reserves required under Regulation D to the extent included in
the computation of the Eurodollar Rate and/or (y) other circumstances
since the date of this Agreement affecting such Bank or the interbank
Eurodollar market or the position of such Bank in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental (including any
NAIC) rule, regulation or order, (y) impossible by compliance by any Bank
in good faith with any governmental (including any NAIC) request (whether
or not having force of law) or (z) impracticable as a result of a
contingency occurring after the date of this Agreement which materially
and adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) thereof to the Borrower, and except in the case of clause (i) above, to
the Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Administrative Agent notifies the Borrower and the Banks that
the circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (y)
in the case of clause (ii) above, the Borrower agrees to pay to such Bank, upon
written demand therefor, such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Bank in its sole discretion shall determine) as shall be required to compensate
such Bank for such increased costs or reductions in amounts received or
receivable hereunder (a written notice as to the additional amounts owed to such
Bank, showing the basis for the calculation thereof, submitted to the Borrower
by such Bank in good faith shall, absent manifest error, be final and conclusive
and binding on all the parties hereto) and (z) in the case of clause (iii)
above, the Borrower shall take one of the actions specified in Section 1.10(b)
as promptly as possible and, in any event, within the time period required by
law. Each of the Administrative Agent and each Bank agrees that if it gives
notice to the Borrower of any of the events described in clause (i) or (iii)
above, it shall promptly notify the Borrower and, in the case of any such Bank,
the Administrative Agent, if such event ceases to exist. If any such event
described in clause (iii) above ceases to exist as to a Bank, the obligations of
such Bank to make Eurodollar Loans and to convert Base Rate Loans into
Eurodollar Loans on the terms and conditions contained herein shall be
reinstated.
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19
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Bank or
the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business Days'
written notice to the Administrative Agent, require the affected Bank to convert
such Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank
is affected at any time, then all affected Banks must be treated the same
pursuant to this Section 1.10(b).
(c) If at any time any Bank determines that the introduction of or
any change in any applicable law or governmental (including any NAIC) rule,
regulation, order, guideline, directive or request (whether or not having the
force of law and including, without limitation, those announced or published
prior to the Restatement Effective Date) concerning capital adequacy, or any
change in interpretation or administration thereof by any governmental authority
(including the NAIC), central bank or comparable agency, will have the effect of
increasing the amount of capital required or expected to be maintained by such
Bank or any corporation controlling such Bank based on the existence of such
Bank's Revolving Loan Commitment hereunder or its obligations hereunder, then
the Borrower agrees to pay to such Bank, upon its written demand therefor, such
additional amounts as shall be required to compensate such Bank or such other
corporation for the increased cost to such Bank or such other corporation or the
reduction in the rate of return to such Bank or such other corporation as a
result of such increase of capital. In determining such additional amounts, each
Bank will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable, provided that such Bank's reasonable
good faith determination of compensation owing under this Section 1.10(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto. Each Bank, upon determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to the
Borrower, which notice shall show the basis for calculation of such additional
amounts.
1.11 Compensation. The Borrower agrees to compensate each Bank, upon
its written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurodollar Loans but excluding any loss of anticipated profit) which
such Bank may sustain: (i)
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if for any reason (other than a default by such Bank or the Administrative
Agent) a Borrowing of, or conversion from or into, Eurodollar Loans does not
occur on a date specified therefor by the Borrower in a Notice of Borrowing or
Notice of Conversion (whether or not withdrawn by the Borrower or deemed
withdrawn pursuant to Section 1.10(a)); (ii) if any repayment by the Borrower
(including any repayment made pursuant to Section 4.01 or 4.02 or a result of an
acceleration of the Loans pursuant to Section 10) or conversion of any of its
Eurodollar Loans occurs on a date which is not the last day of an Interest
Period with respect thereto; (iii) if any prepayment by the Borrower of any of
such Bank's Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay Loans when required by the terms of this
Agreement or any Note held by such Bank or (y) any election made pursuant to
Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such Bank,
it will, if requested by the Borrower, use reasonable efforts (subject to
overall policy considerations of such Bank) to designate another lending office
for any Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Bank and its lending office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of such Section. Nothing
in this Section 1.12 shall affect or postpone any of the obligations of the
Borrower or the right of any Bank provided in Sections 1.10, 2.06 and 4.04
(although each such Bank shall nevertheless have an obligation to change its
applicable lending office subject to the terms set forth in the immediately
preceding sentence).
1.13 Replacement of Banks. If any Bank (x) becomes a Defaulting Bank
or otherwise defaults in its obligations to make Loans or fund Unpaid Drawings,
(y) refuses to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks as provided in Section 13.12(b) or (z) is owed increased costs
under Section 1.10 (a)(ii) or (iii), Section 1.10(c), Section 2.06 or Section
4.04 in a material amount in excess of those being generally charged by the
other Banks, the Borrower shall have the right, in accordance with the
requirements of Section 13.04(b), if no Default or Event of Default would exist
after giving effect to such replacement, to either replace such Bank (the
"Replaced Bank") with one or more Eligible Transferees, none of whom shall
constitute a Defaulting Bank at the time of such replacement (collectively, the
"Replacement Bank") and each of whom shall be required to be reasonably
acceptable to the Administrative Agent and each Issuing Bank; provided, that:
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21
(i) at the time of any replacement pursuant to this Section 1.13,
the Replaced Bank and the Replacement Bank shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 13.04(b) (and
with all fees payable pursuant to said Section 13.04(b) to be paid by the
Replacement Bank) pursuant to which the Replacement Bank shall acquire all
of the Revolving Loan Commitment and outstanding Revolving Loans of and
participation in Letters of Credit by, the Replaced Bank and, in
connection therewith, shall pay to (x) the Replaced Bank in respect
thereof an amount equal to the sum of (A) an amount equal to the principal
of, and all accrued interest on, all outstanding Revolving Loans of the
Replaced Bank, (B) an amount equal to all Unpaid Drawings that have been
funded by (and not reimbursed to) such Replaced Bank, together with all
then unpaid interest with respect thereto at such time and (C) an amount
equal to all accrued, but theretofore unpaid, Fees owing to the Replaced
Bank pursuant to Section 3.01, (y) the respective Issuing Bank an amount
equal to such Replaced Bank's Adjusted RL Percentage (for this purpose,
determined as if the adjustment described in clause (y) of the immediately
succeeding sentence had been made with respect to such Replaced Bank) of
any Unpaid Drawing (which at such time remains an Unpaid Drawing) with
respect to a Letter of Credit issued by it to the extent such amount was
not theretofore funded by such Replaced Bank and (z) the Swingline Bank an
amount equal to such Replaced Bank's Adjusted RL Percentage (for this
purpose, determined as if the adjustment described in clause (y) of the
immediately succeeding sentence had been made with respect to such
Replaced Bank) of any Mandatory Borrowing to the extent such amount was
not theretofore funded by such Replaced Bank; and
(ii) all obligations of the Borrower owing to the Replaced Bank
(other than those specifically described in clause (i) above in respect of
which the assignment purchase price has been, or is concurrently being,
paid) shall be paid in full to such Replaced Bank concurrently with such
replacement.
Upon the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above, the recordation of
the assignment on the Register by the Administrative Agent pursuant to Section
13.16 and, if so requested by the Replacement Bank, delivery to the Replacement
Bank of the appropriate Revolving Note or Notes executed by the Borrower, (x)
the Replacement Bank shall become a Bank hereunder and the Replaced Bank shall
cease to constitute a Bank hereunder, except with respect to indemnification
provisions under this Agreement (including, without limitation, Sections 1.10,
1.11, 2.06, 4.04, 13.01 and 13.06), which shall survive as to such Replaced Bank
and (y) in the case of a replacement of a Defaulting Bank with a Non-Defaulting
Bank, the Adjusted RL Percentages
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22
of the respective Banks shall be automatically adjusted at such time to give
effect to such replacement (and to give effect to the replacement of a
Defaulting Bank with one or more Non-Defaulting Banks).
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that an Issuing Bank
issue, at any time and from time to time on and after the Restatement Effective
Date and prior to the third Business Day (or the 30th day in the case of Trade
Letters of Credit issued in negotiable form to overseas beneficiaries) preceding
the Final Maturity Date, (x) for the account of the Borrower and for the benefit
of any holder (or any trustee, agent or other similar representative for any
such holders) of L/C Supportable Indebtedness of the Borrower, any of its
Subsidiaries or Caterair, an irrevocable standby letter of credit, in a form
customarily used by such Issuing Bank or in such other form as has been approved
by such Issuing Bank (each such standby letter of credit, a "Standby Letter of
Credit") in support of such L/C Supportable Indebtedness and (y) for the account
of the Borrower and for the benefit of sellers of goods to the Borrower, any of
its Subsidiaries or Caterair, an irrevocable sight commercial letter of credit
in a form customarily used by such Issuing Bank or in such other form as has
been approved by such Issuing Bank (each such commercial letter of credit, a
"Trade Letter of Credit", and each such Trade Letter of Credit and each Standby
Letter of Credit, a "Letter of Credit") in support of commercial transactions of
the Borrower, its Subsidiaries or Caterair. It is hereby acknowledged and agreed
that all Letters of Credit issued pursuant to the Original Credit Agreement and
which remain outstanding on the Restatement Effective Date (the "Existing
Letters of Credit"), shall, in each case, constitute a "Letter of Credit" for
all purposes of this Agreement and shall be deemed issued on the Restatement
Effective Date. Schedule III contains a description of all Existing Letters of
Credit which were issued pursuant to the Original Credit Agreement and which are
to remain outstanding on the Restatement Effective Date.
(b) Subject to and upon the terms and conditions set forth herein,
each Issuing Bank hereby agrees that it will, at any time and from time to time
on or after the Restatement Effective Date and prior to the third Business Day
(or the 30th day in the case of Trade Letters of Credit issued in negotiable
form to overseas beneficiaries) preceding the Final Maturity Date, following its
receipt of the respective Letter of Credit Request (together with such other
documents, if any, as such Issuing Bank shall identify to the Borrower as being
customarily included in connection therewith), issue for the account of the
Borrower one or more Letters of Credit, (x) in the case of Standby Letters of
Credit, in support of such L/C Supportable Indebtedness of the Borrower, any of
its Subsidiaries or Caterair as is permitted to remain outstanding
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without giving rise to a Default or an Event of Default and (y) in the case of
Trade Letters of Credit, in support of sellers of goods as referenced in Section
2.01(a), provided that the respective Issuing Bank shall be under no obligation
to issue any Letter of Credit of the types described above if at the time of
such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Bank from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Bank or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Bank shall prohibit, or request that such
Issuing Bank refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing Bank
with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Bank is not otherwise
compensated or entitled to be compensated under this Agreement) not in
effect on the date hereof, or any unreimbursed loss, cost or expense which
was not applicable, in effect or known to such Issuing Bank as of the date
hereof and which such Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇ material to it (for
which such Issuing Bank is not otherwise compensated or entitled to be
compensated under this Agreement); or
(ii) such Issuing Bank shall have received written notice from the
Required Banks prior to the issuance of such Letter of Credit of the type
described in the second sentence of Section 2.03(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $50,000,000 or (y) when added to the aggregate principal
amount of all Revolving Loans made by Non-Defaulting Banks then outstanding and
all Swingline Loans then outstanding, an amount equal to the Adjusted Total
Available Revolving Loan Commitment at such time, (ii) each Standby Letter of
Credit shall by its terms terminate on or before the earlier of (x) the date
which occurs 12 months after the date of the issuance thereof (although any such
Standby Letter of Credit may be extendable for successive periods of up to 12
months, but not beyond the third Business Day preceding the Final Maturity Date,
on terms acceptable to the Issuing Bank thereof) and (y) the third Business Day
preceding the Final Maturity Date and (iv) each Trade Letter of Credit shall by
its terms terminate on or before the earlier of (x) the date which occurs 180
days after the day of issuance thereof and (y) the third Business Day (or the
30th day
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in the case of Trade Letters of Credit issued in negotiable form to overseas
beneficiaries) preceding the Final Maturity Date.
2.02 Minimum Stated Amount. The Stated Amount of each Letter of
Credit shall be not less than $50,000 or such lesser amount as is acceptable to
the respective Issuing Bank.
2.03 Letter of Credit Requests; etc. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, the Borrower shall
give the Administrative Agent and the respective Issuing Bank at least five
Business Days' (or such shorter period as is acceptable to the respective
Issuing Bank) written notice thereof. Each notice shall be in the form of
Exhibit C (each a "Letter of Credit Request"). The Administrative Agent shall
promptly transmit copies of each Letter of Credit Request to each Bank.
(b) The making of each Letter of Credit Request shall be deemed to
be a representation and warranty by the Borrower that such Letter of Credit may
be issued in accordance with, and will not violate the requirements of, Section
2.01(c). Unless the respective Issuing Bank has received written notice from the
Required Banks before it issues a Letter of Credit that one or more of the
conditions specified in Section 6 are not then satisfied, or that the issuance
of such Letter of Credit would violate Section 2.01(c), then such Issuing Bank
may issue the requested Letter of Credit for the account of the Borrower in
accordance with such Issuing Bank's usual and customary practices. Upon its
issuance of any Letter of Credit or any amendment to a then existing Letter of
Credit which changes the Stated Amount thereof, such Issuing Bank shall promptly
notify each Bank of such issuance or amendment, as the case may be, which notice
shall be accompanied by a copy of the Letter of Credit actually issued or
amended, as the case may be. As promptly as practicable after the first day of
each calendar month, each Issuing Bank shall notify the Administrative Agent and
each Bank of the Stated Amount of all Trade Letters of Credit that were issued
by such Issuing Bank and that remain outstanding as of the first day of such
calendar month.
2.04 Letter of Credit Participation. (a) Immediately upon the
issuance by any Issuing Bank of any Letter of Credit, such Issuing Bank shall be
deemed to have sold and transferred to each Bank, other than such Issuing Bank
(each such Bank, in its capacity under this Section 2.04, a "Participant"), and
each such Participant shall be deemed irrevocably and unconditionally to have
purchased and received from such Issuing Bank, without recourse or warranty, an
undivided interest and participation, to the extent of such Participant's
Adjusted RL Percentage, in such Letter of Credit, each drawing made thereunder
and the obligations of the Borrower under this Agreement with respect thereto,
and any security therefor or guaranty pertaining thereto. Upon
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any change in the Revolving Loan Commitments or Adjusted RL Percentages of the
Banks pursuant to Section 1.13 or 13.04 or as a result of a Bank Default, it is
hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings, there shall be an automatic adjustment to the participation pursuant
to this Section 2.04 to reflect the new Adjusted RL Percentages of the assignor
and assignee Bank or of all Banks with Revolving Loan Commitments, as the case
may be.
(b) In determining whether to pay under any Letter of Credit, such
Issuing Bank shall have no obligation relative to the other Banks other than to
confirm that any documents required to be delivered under such Letter of Credit
appear to have been delivered and that they appear to substantially comply on
their face with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by any Issuing Bank under or in connection with any Letter
of Credit if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such Issuing Bank any resulting liability to
the Borrower, any other Credit Party or any Bank.
(c) In the event that any Issuing Bank makes any payment under any
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Bank the amount of such Participant's
Adjusted RL Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York
time) on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to such Issuing Bank in
Dollars such Participant's Adjusted RL Percentage of the amount of such payment
on such Business Day in same day funds. If and to the extent such Participant
shall not have so made its Adjusted RL Percentage of the amount of such payment
available to such Issuing Bank, such Participant agrees to pay to such Issuing
Bank, forthwith on demand such amount, together with interest thereon, for each
day from such date until the date such amount is paid to such Issuing Bank at
the overnight Federal Funds Rate. The failure of any Participant to make
available to such Issuing Bank its Adjusted RL Percentage of any payment under
any Letter of Credit shall not relieve any other Participant of its obligation
hereunder to make available to such Issuing Bank its Adjusted RL Percentage of
any Letter of Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any other Participant to
make available to such Issuing Bank such other Participant's Adjusted RL
Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a ▇▇▇▇-
bursement obligation as to which it has received any payments from the
Participants
-18-
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pursuant to clause (c) above, such Issuing Bank shall pay to each Participant
which has paid its Adjusted RL Percentage thereof, in Dollars and in same day
funds, an amount equal to such Participant's share (based upon the proportionate
aggregate amount originally funded by such Participant to the aggregate amount
funded by all Participants) of the principal amount of such reimbursement
obligation and interest thereon accruing after the purchase of the respective
participation.
(e) Upon the written request of any Participant, each Issuing Bank
shall furnish to such Participant copies of any Letter of Credit issued by it
and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each
Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable
and not subject to any qualification or exception whatsoever and shall be made
in accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which any Credit Party or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Issuing Bank, any Participant, or
any other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between any Credit Party or any of
its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
hereby agrees to reimburse the respective Issuing Bank, by making payment to the
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Administrative Agent in immediately available funds at the Payment Office, for
any payment or disbursement made by such Issuing Bank under any Letter of Credit
issued by it (each such amount, so paid until reimbursed, an "Unpaid Drawing"),
immediately after, and in any event on the date of, the date of such payment or
disbursement, with interest on the amount so paid or disbursed by such Issuing
Bank, to the extent not reimbursed prior to 12:00 Noon (New York time) on the
date of such payment or disbursement, from and including the date paid or
disbursed to but excluding the date such Issuing Bank was reimbursed by the
Borrower therefor at a rate per annum which shall be the Base Rate in effect
from time to time plus the Applicable Margin for Revolving Loans maintained as
Base Rate Loans, provided, however, to the extent such amounts are not
reimbursed prior to 12:00 Noon (New York time) on the third Business Day
following notice to the Borrower by the Administrative Agent or the respective
Issuing Bank of such payment or disbursement, interest shall thereafter accrue
on the amounts so paid or disbursed by such Issuing Bank (and until reimbursed
by the Borrower) at a rate per annum which shall be the Base Rate in effect from
time to time plus the Applicable Margin for Revolving Loans maintained as Base
Rate Loans plus 2%, in each such case, with interest to be payable by the
Borrower on demand, it being understood and agreed, however, that (i) the notice
referred to in the immediately preceding proviso shall not be required to be
given if a Default or an Event of Default under Section 10.05 shall have
occurred and be continuing and, in such case, interest shall accrue on and after
the third Business Day after the respective Drawing at the rate provided in the
immediately preceding proviso and (ii) the Borrower shall be entitled to incur a
Borrowing of Revolving Loans and/or Swingline Loans to repay any such Unpaid
Drawings so long as (v) there is sufficient availability under the Total
Revolving Loan Commitment as determined in accordance with Sections 1.01(a)
and/or (b), (w) no Default or Event of Default under Section 10.05 shall have
occurred and be continuing, (x) the Loans have not theretofore been accelerated
pursuant to Section 10, (y) such Borrowing occurs within five Business Days
following notice to the Borrower by the Administrative Agent or the respective
Issuing Bank of such Drawing and (z) the Final Maturity Date or the Swingline
Expiry Date, as the case may be, has not occurred. The respective Issuing Bank
shall give the Borrower prompt notice of each Drawing under any Letter of
Credit, provided that the failure to give any such notice shall in no way
affect, impair or diminish the Borrower' obligations hereunder.
(b) The obligations of the Borrower under this Section 2.05 to
reimburse the respective Issuing Bank with respect to payments under Letters of
Credit (each a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower or any other
Credit Party may have or have had against any Bank (including in its capacity as
issuer of the Letter of Credit or as Participant), or any nonapplication or
misapplication by the beneficiary of the
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proceeds of such Drawing, the respective Issuing Bank's only obligation to the
Borrower being to confirm that any documents required to be delivered under such
Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit; provided, however, that the Borrower shall not be obligated to reimburse
such Issuing Bank for any wrongful payment made by such Issuing Bank under a
Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of such Issuing Bank. Any action
taken or omitted to be taken by any Issuing Bank under or in connection with any
Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for such Issuing Bank any resulting
liability to the Borrower.
2.06 Increased Costs. If at any time the introduction of or any
change in any applicable law, rule, regulation, order, guideline or request or
in the interpretation or administration thereof by any governmental authority
(including any NAIC) charged with the interpretation or administration thereof,
or compliance by any Issuing Bank or any Participant with any request or
directive by any such authority (whether or not having the force of law), or any
change in generally acceptable accounting principles, shall either (i) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against Letters of Credit issued by any Issuing Bank or participated
in by any Participant, or (ii) impose on any Issuing Bank or any Participant any
other conditions relating, directly or indirectly, to this Agreement or any
Letter of Credit, and the result of any of the foregoing is to increase the cost
to any Issuing Bank or any Participant of issuing, maintaining or participating
in any Letter of Credit, or reduce the amount of any sum received or receivable
by any Issuing Bank or any Participant hereunder or reduce the rate of return on
its capital with respect to Letters of Credit (except for changes in the rate of
tax on, or determined by reference to, the net income or profits of such Issuing
Bank or such Participant pursuant to the laws of the jurisdiction in which it is
organized or in which its principal office or applicable lending office is
located or any subdivision thereof or therein), then, upon demand to the
Borrower by such Issuing Bank or any Participant (a copy of which demand shall
be sent by such Issuing Bank or such Participant to the Administrative Agent),
the Borrower agrees to pay (and shall pay) to such Issuing Bank or such
Participant such additional amount or amounts as will compensate such Bank for
such increased cost or reduction in the amount receivable or reduction on the
rate of return on its capital. Any Issuing Bank or any Participant, upon
determining that any additional amounts will be payable pursuant to this Section
2.06, will give prompt written notice thereof to the Borrower, which notice
shall include a certificate submitted to the Borrower by such Issuing Bank or
such Participant (a copy of which certificate shall be sent by such Issuing Bank
or such Participant to the Administrative Agent), setting forth in reasonable
detail the basis for the calculation of such additional amount or
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amounts necessary to compensate such Issuing Bank or such Participant. The
certificate required to be delivered pursuant to this Section 2.06 shall, if
delivered in good faith and absent manifest error, be final and conclusive and
binding on the Borrower.
2.07 Indemnification. To the extent that any Issuing Bank is not
reimbursed and indemnified by the Credit Parties pursuant to Section 13.01(iii),
each Participant will reimburse and indemnify such Issuing Bank in proportion to
their respective Adjusted RL Percentages, for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by such Issuing Bank in
connection with any Letter of Credit issued by it or in performing its
respective duties hereunder or under any Letter of Credit issued by it, provided
that (x) no Participant shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Issuing Bank's gross negligence or
willful misconduct and (y) notwithstanding the foregoing provisions of this
Section 2.07, a Participant's obligation to reimburse an Issuing Bank for
payments made under a Letter of Credit that are not reimbursed by the Borrower
shall be governed by Section 2.04.
SECTION 3. Fees; Reductions of Commitment.
3.01 Fees. (a) The Borrower agrees to pay to the Administrative
Agent for distribution to each Non-Defaulting Bank a commitment commission (the
"Commitment Commission") for the period from the Restatement Effective Date to
and including the Final Maturity Date (or such earlier date as the Total
Revolving Loan Commitment shall have been terminated), computed at a rate for
each day equal to the Applicable Commitment Commission Percentage on the daily
average Unutilized Revolving Loan Commitment of such Non-Defaulting Bank.
Accrued Commitment Commission shall be due and payable quarterly in arrears on
each Quarterly Payment Date and on the Final Maturity Date or such earlier date
upon which the Total Revolving Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Bank (based on their respective Adjusted RL
Percentages) a fee in respect of such Non-Defaulting Bank's participation in
each Letter of Credit issued hereunder (the "Letter of Credit Fee"), for the
period from and including the date of issuance of such Letter of Credit to and
including the date of termination of such Letter of Credit, computed at a rate
per annum equal to the Applicable Margin for Revolving Loans maintained as
Eurodollar Loans, as in effect from time to time, on the daily Stated Amount of
such Letter of Credit. Accrued Letter of Credit Fees shall be due and payable
quarterly in arrears on each Quarterly Payment
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Date and upon the first day on or after the termination of the Total Revolving
Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing Bank, for
its own account, a facing fee in respect of each Letter of Credit issued by such
Issuing Bank hereunder (the "Facing Fee"), for the period from and including the
date of issuance of such Letter of Credit to and including the date of
termination of such Letter of Credit, computed at a rate per annum equal to 1/4
of 1% on the daily Stated Amount of such Letter of Credit. Accrued Facing Fees
shall be due and payable quarterly in arrears on each Quarterly Payment Date and
upon the first day on or after the termination of the Total Revolving Loan
Commitment upon which no Letters of Credit issued by such Issuing Bank remain
outstanding.
(d) The Borrower agrees to pay to the respective Issuing Bank, for
its own account, upon each drawing under, issuance of, or amendment to, any
Letter of Credit issued by such Issuing Bank, such amount as shall at the time
of such event be the administrative charge and expenses which the respective
Issuing Bank is generally imposing in connection with such occurrence with
respect to letters of credit.
(e) The Borrower agrees to pay to each of the Agents (whether in
their capacity as an Agent or a Co-Arranger), for their own account, such other
fees as have been agreed to in writing by such Credit Parties and each of the
Agents.
3.02 Voluntary Termination of Unutilized Commitments. (a) Upon at
least two Business Days' prior written notice from the Borrower to the
Administrative Agent at the Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Banks), the Borrower shall have the
right, at any time or from time to time, without premium or penalty, to
terminate the Total Unutilized Revolving Loan Commitment, in whole or in part,
in integral multiples of $1,000,000 in the case of partial reductions to the
Total Unutilized Revolving Loan Commitment, provided that (i) each such
reduction shall apply proportionately to permanently reduce the Revolving Loan
Commitment of each Bank and (ii) the reduction to the Total Unutilized Revolving
Loan Commitment shall in no case be in an amount which would cause the Revolving
Loan Commitment of any Bank to be reduced (as required by preceding clause (i))
by an amount which exceeds the remainder of (x) the Unutilized Revolving Loan
Commitment of such Bank as in effect immediately before giving effect to such
reduction minus (y) such Bank's Adjusted RL Percentage of the aggregate
principal amount of Swingline Loans then outstanding.
(b) In addition to the terminations permitted pursuant to Section
3.02(a), in the event of certain refusals by a Bank to consent to certain
proposed changes,
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waivers, discharges or terminations with respect to this Agreement which have
been approved by the Required Banks as provided in Section 13.12(b), the
Borrower may, upon five Business Days' written notice to the Administrative
Agent at the Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks) terminate the entire Revolving Loan Commitment of
such Bank so long as all Revolving Loans of such Bank, together with accrued and
unpaid interest, Fees and all other amounts owing to such Bank are repaid
concurrently with the effectiveness of such termination, and at such time such
Bank shall no longer constitute a "Bank" for purposes of this Agreement, except
with respect to indemnifications under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.06, 4.04, 13.01 and 13.06), which shall
survive as to such repaid Bank.
3.03 Mandatory Reduction of Commitments. (a) The Total Revolving
Loan Commitment (and the Revolving Loan Commitment of each of the Banks) shall
terminate in their entirety on September 30, 1997 and the Original Credit
Agreement shall continue in effect unless the Restatement Effective Date has
occurred on or before such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date on or after the Restatement
Effective Date upon which OFSI, the Borrower, any Subsidiary of the Borrower,
Caterair Holdings or any Subsidiary of Caterair Holdings receives proceeds from
any Asset Sale, an amount equal to 100% of the Net Sale Proceeds therefrom shall
result in a mandatory reduction of the Total Revolving Loan Commitment and/or be
applied as a prepayment or repayment of principal of outstanding loans under the
Caterair Credit Agreement, provided that (x) to the extent that any portion of
the proceeds from any Asset Sale are to be applied to permanently reduce the
Total Revolving Loan Commitment then at least a proportionate share of such
proceeds shall be applied as a mandatory repayment of principal of outstanding
loans under the Caterair Credit Agreement (with such proportionate share to be
based on the relative outstanding principal amount of loans under the Caterair
Credit Agreement and the outstanding principal amount of Loans, Letters of
Credit and the Total Unutilized Revolving Loan Commitment under this Agreement),
and (y) such Net Sale Proceeds therefrom shall not constitute such a reduction
and/or be required to be so applied on such date so long as no Default or Event
of Default then exists and the Borrower delivers a certificate to the
Administrative Agent on or prior to such date stating that such Net Sale
Proceeds are intended to be used to purchase assets (including the capital stock
of any Person) used or to be used in the businesses permitted by Section 9.13
(and to the extent otherwise permitted by Sections 9.02(xiv), 9.05(xvii) and
9.07(d)) within 365 days following the date of such Asset Sale, and provided
further, that if all or any portion of such Net Sale Proceeds are not so
reinvested within such 365 day period, such remaining portion shall
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be applied on the last day of such period as provided above in this Section
3.03(b) without regard to the immediately preceding proviso.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date on or after the Restatement
Effective Date upon which OFSI, the Borrower, any Subsidiary of the Borrower,
Caterair Holdings or any Subsidiary of Caterair Holdings receives any proceeds
from any incurrence by OFSI, the Borrower, any Subsidiary of the Borrower,
Caterair Holdings or any Subsidiary of Caterair Holdings of Indebtedness for
borrowed money (other than (i) Indebtedness for borrowed money permitted to be
incurred pursuant to Section 9.04 as such Section is in effect on the
Restatement Effective Date and (ii) additional Indebtedness for borrowed money
permitted to be incurred by OFSI, the Borrower, any Subsidiary of the Borrower,
Caterair Holdings or any Subsidiary of Caterair Holdings pursuant to Section
9.04 as such Section may be amended or modified by the Required Banks from time
to time but only to the extent the Required Banks expressly waive the
applicability of this Section 3.03(c) with respect to the incurrence of such
additional Indebtedness or expressly permit the proceeds thereof to be used for
purposes other than as a mandatory commitment reduction pursuant to this Section
3.03(c)), an amount equal to 100% of the cash proceeds of the respective
incurrence of Indebtedness (net of underwriting or placement discounts and
commissions and other reasonable costs associated therewith) shall result in a
mandatory reduction of the Total Revolving Loan Commitment and/or be applied as
a prepayment or repayment of principal of outstanding loans under the Caterair
Credit Agreement.
(d) In addition to any other commitment reductions pursuant to this
Section 3.03, within 10 days following each date on or after the Restatement
Effective Date on which OFSI, the Borrower, any Subsidiary of the Borrower,
Caterair Holdings or any Subsidiary of Caterair Holdings receives any proceeds
from any Recovery Event, an amount equal to 100% of the proceeds of such
Recovery Event (net of reasonable costs incurred in connection with such
Recovery Event, including, without limitation, the estimated marginal increase
in income taxes which will be payable by OFSI, the Borrower, any Subsidiary of
the Borrower, Caterair Holdings or any Subsidiary of Caterair Holdings or the
consolidated group in which any such Person is a member) shall result in a
mandatory reduction of the Total Revolving Loan Commitment and/or be applied as
a prepayment or repayment of outstanding loans under the Caterair Credit
Agreement; provided that (x) to the extent that any portion of the proceeds from
any Recovery Event are to be applied to permanently reduce the Total Revolving
Loan Commitment then at least a proportionate share of such proceeds shall be
applied as a mandatory repayment of principal of outstanding loans under the
Caterair Credit Agreement (with such proportionate share to be based on the
relative outstanding principal amount of Loans, Letters of Credit and the Total
Unutilized
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Revolving Loan Commitment under this Agreement), and (y) so long as no Default
or Event of Default then exists and such proceeds do not exceed $25,000,000,
such proceeds shall not constitute such a reduction and/or be required to be so
applied to the extent that the Borrower has delivered a certificate to the
Administrative Agent on or prior to such date stating that such proceeds are
intended to be used to replace or restore any properties or assets in respect of
which such proceeds were paid within 365 days following the date of the receipt
of such proceeds (or, to the extent such replacement or restoration cannot
reasonably be completed within such 365 day period, within 450 days following
the date of the receipt of such proceeds) and (in either case) the respective
Person has commenced work to replace or restore such properties or assets within
180 days following the date of the receipt of such proceeds, and provided
further, that (i) if the amount of such proceeds exceeds $25,000,000, then the
entire amount of such proceeds and not just the portion in excess of $25,000,000
shall result in a mandatory reduction and/or prepayment or repayment as provided
above in this Section 3.03(d) without regard to the immediately preceding
proviso and (ii) if all or any portion of such proceeds not required to result
in a mandatory reduction and/or be applied as a prepayment or repayment pursuant
to the immediately preceding proviso are not so used within 365 days (or 450
days, as the case may be) after the date of the receipt of such proceeds (or
such work has not been commenced within such 180 day period), such remaining
portion shall result in a mandatory reduction and/or be applied as a prepayment
or repayment as provided above in this Section 3.03(d) without regard to the
immediately preceding proviso.
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Bank) shall terminate in its entirety on the
earlier of (i) the date on which a Change of Control occurs and (ii) the Final
Maturity Date.
(f) Each reduction to the Total Revolving Loan Commitment pursuant
to this Section 3.03 shall be applied proportionately to reduce the Revolving
Loan Commitment of each Bank.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. (a) The Borrower shall have the right to
prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions:
(i) the Borrower shall give the Administrative Agent prior to 12:00
Noon (New York time) at the Notice Office (x) at least one Business Day's
prior written notice (or telephonic notice promptly confirmed in writing)
of the
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Borrower's intent to prepay Base Rate Loans (or same day notice in the
case of Swingline Loans, provided such notice is given prior to 11:00 A.M.
(New York time)) and (y) at least three Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of the
Borrower's intent to prepay Eurodollar Loans, whether Revolving Loans or
Swingline Loans shall be pre-paid, the amount of such prepayment and the
Types of Loans to be prepaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings pursuant to which made, which notice the
Administrative Agent shall promptly transmit to each of the Banks;
(ii) each prepayment shall be in an aggregate principal amount of at
least $1,000,000 (or $250,000 in the case of Swingline Loans), provided
that if any partial prepayment of Eurodollar Loans made pursuant to any
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto, then such Borrowing shall be converted at the end of
the then current Interest Period into a Borrowing of Base Rate Loans and
any election of an Interest Period with respect thereto given by a
Borrower shall have no force or effect; and
(iii) each prepayment in respect of any Loans made pursuant to a
Borrowing shall be applied pro rata among such Loans, provided that at the
Borrower's election in connection with any prepayment of Revolving Loans
pursuant to this Section 4.01(a), such prepayment shall not be applied to
any Revolving Loan of a Defaulting Bank.
(b) In the event of certain refusals by a Bank as provided in
Section 13.12(b) to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks, the Borrower may, upon five Business Days' prior written notice
by the Borrower to the Administrative Agent at the Notice Office (which notice
the Administrative Agent shall promptly transmit to each of the Banks) repay all
Loans of such Bank, together with accrued and unpaid interest, Fees and other
amounts owing to such Bank by the Borrower in accordance with said Section
13.12(b) so long as (A) the Revolving Loan Commitment of such Bank is terminated
concurrently with such repayment pursuant to Section 3.02(b) (at which time
Schedule I shall be deemed modified to reflect the changed Revolving Loan
Commitments), and (B) the consents required by Section 13.12(b) in connection
with the repayment pursuant to this clause (b) have been obtained.
4.02 Mandatory Repayments. (a) (i) On any day on which the sum of
the aggregate outstanding principal amount of the Revolving Loans made by Non-
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Defaulting Banks, Swingline Loans and Letter of Credit Outstandings exceeds the
Adjusted Total Available Revolving Loan Commitment as then in effect, the
Borrower shall repay on such day principal of the Swingline Loans and, after all
Swingline Loans have been repaid in full, Revolving Loans of Non-Defaulting
Banks in an amount equal to such excess. If, after giving effect to the
repayment of all outstanding Swingline Loans and all outstanding Revolving Loans
of Non-Defaulting Banks, the aggregate amount of the Letter of Credit
Outstandings exceeds the Adjusted Total Available Revolving Loan Commitment as
then in effect, the Borrower shall pay to the Administrative Agent at the
Payment Office on such date an amount of cash or Cash Equivalents equal to the
amount of such excess (up to a maximum amount equal to the Letter of Credit
Outstandings at such time), such cash or Cash Equivalents to be held as security
for all obligations of the Borrower to Non-Defaulting Banks hereunder in a cash
collateral account to be established by the Administrative Agent.
(ii) On any day on which the aggregate outstanding principal amount
of the Revolving Loans made by any Defaulting Bank exceeds the Revolving Loan
Commitment of such Defaulting Bank, the Borrower shall repay on such day
principal of Revolving Loans of such Defaulting Bank in an amount equal to such
excess.
(b) With respect to each repayment of Revolving Loans required by
this Section 4.02, the Borrower may designate the Types of Revolving Loans which
are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, provided that: (i) repayments of Eurodollar
Loans pursuant to this Section 4.02 may only be made on the last day of an
Interest Period applicable thereto unless all Eurodollar Loans with Interest
Periods ending on such date of required repayment and all Base Rate Loans have
been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a
single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) except for the
differing treatments of Defaulting Banks and Non-Defaulting Banks as expressly
provided in Section 4.02(a), each repayment of Revolving Loans made pursuant to
a Borrowing shall be applied pro rata among such Revolving Loans. In the absence
of a designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in its
sole discretion.
(c) Notwithstanding anything to the contrary contained in this
Agreement, (i) all then outstanding Revolving Loans shall be repaid in full on
the Final Maturity Date, (ii) all the outstanding Swingline Loans shall be
repaid in full on the
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Swingline Expiry Date and (iii) all then outstanding Loans shall be repaid in
full on the date on which a Change of Control occurs.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the account of the Bank or Banks entitled thereto
not later than 12:00 Noon (New York time) on the date when due and shall be made
in Dollars in immediately available funds at the Payment Office. Whenever any
payment to be made hereunder or under any Note shall be stated to be due on a
day which is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day and, with respect to payments of principal,
interest shall be payable at the applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income or profits of a Bank pursuant to the laws of
the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect thereto (all such non-excluded taxes, levies, imports,
duties, fees, assessments or other charges being referred to collectively as
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to pay the
full amount of such Taxes, and such additional amounts as may be necessary so
that every payment of all amounts due under this Agreement or under any Note,
after withholding or deduction for or on account of any Taxes, will not be less
than the amount provided for herein or in such Note. If any amounts are payable
in respect of Taxes pursuant to the preceding sentence, the Borrower agrees to
reimburse each Bank, upon the written request of such Bank, for taxes imposed on
or measured by the net income or profits of such Bank pursuant to the laws of
the jurisdiction in which the principal office or applicable lending office of
such Bank is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which the principal office or applicable
lending office of such Bank is located and for any withholding of income or
similar taxes imposed by the United States of America as such Bank shall
determine are payable by, or withheld from, such Bank in respect of such amounts
so paid to or on behalf of such Bank pursuant to the preceding sentence and in
respect of any amounts paid to or on behalf of such Bank pursuant to this
sentence. The Borrower will furnish to the Agent
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within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Bank, and
reimburse such Bank upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Administrative Agent on or prior to the Restatement Effective Date, or
in the case of a Bank that is an assignee or transferee of an interest under
this Agreement pursuant to Section 1.13 or 13.04 (unless the respective Bank was
already a Bank hereunder immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Bank, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001
(or successor forms) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments to be made
under this Agreement and under any Note, or (ii) if the Bank is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 (or successor forms) pursuant to
clause (i) above, (x) a certificate substantially in the form of Exhibit D (any
such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying to such Bank's entitlement to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition, each Bank agrees that
from time to time after the Restatement Effective Date, when a lapse in time or
change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001 (or successor form) , or Form W-8 (or
successor form) and a Section 4.04(b)(ii) Certificate, as the case may be, and
such other forms as may be required in order to confirm or establish the
entitlement of such Bank to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any
Note, or it shall immediately notify the Borrower and the Administrative Agent
of its inability to deliver any such Form or Certificate. Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section
13.04(b) and the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, fees or other
amounts payable hereunder for the account of any Bank which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
U.S. Federal income tax purposes to the extent that such Bank has not provided
to the Borrower U.S.
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Internal Revenue Service Forms that establish a complete exemption from such
deduction or withholding and (y) the Borrower shall not be obligated pursuant to
Section 4.04(a) to gross-up payments to be made to a Bank in respect of income
or similar taxes imposed by the United States if (I) such Bank has not provided
to the Borrower the Internal Revenue Service Forms required to be provided to
the Borrower pursuant to this Section 4.04(b) or (II) in the case of a payment,
other than interest, to a Bank described in clause (ii) above, to the extent
that such Forms do not establish a complete exemption from withholding of such
taxes. Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 4.04(b) and except as set forth in Section
13.04(b), the Borrower agrees to pay additional amounts and to indemnify each
Bank in the manner set forth in Section 4.04(a) (without regard to the identity
of the jurisdiction requiring the deduction or withholding) in respect of any
amounts deducted or withheld by it as described in the immediately preceding
sentence as a result of any changes after the Restatement Effective Date in any
applicable law, treaty, governmental rule, regulation, guideline or order, or in
the interpretation thereof, relating to the deducting or withholding of income
or similar Taxes.
SECTION 5. Conditions Precedent to the Restatement Effective Date.
The occurrence of the Restatement Effective Date pursuant to Section 13.10 is
subject to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Restatement
Effective Date, (i) this Agreement shall have been executed and delivered as
provided in Section 13.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each of the Banks, the appropriate
Revolving Note executed by the Borrower and to the Swingline Bank, the Swingline
Note executed by the Borrower, in each case in the amount, maturity and as
otherwise provided herein.
5.02 Fees, etc. On the Restatement Effective Date, the Borrower
shall have paid to the Agents, the Co-Arrangers and the Banks all costs, fees
and expenses (including, without limitation, legal fees and expenses) payable to
the respective Agents, the Co-Arrangers and the Banks to the extent then due.
5.03 Officer's Certificate. On the Restatement Effective Date, the
Administrative Agent shall have received a certificate, dated the Restatement
Effective Date and signed on behalf of the Borrower by any authorized officer of
the Borrower and on behalf of Caterair by any authorized officer of Caterair,
stating that all of the conditions in Sections 5.02, 5.06, 5.07, 5.12, 5.13,
5.18 and 6.02 have been satisfied on such date.
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5.04 Opinions of Counsel and Accountants. On the Restatement
Effective Date, the Administrative Agent shall have received (i) from ▇▇▇▇,
Scholer, Fierman, ▇▇▇▇ & Handler, LLP, counsel to the Credit Parties, an opinion
addressed to each of the Agents and each of the Banks and dated the Restatement
Effective Date covering the matters set forth in Exhibit E-1 and such other
matters incident to the transactions contemplated herein as the Co-Arrangers may
reasonably request, (ii) from ▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP,
special tax counsel to the Borrower and Caterair, an opinion addressed to each
of the Agents and each of the Banks and dated the Restatement Effective Date
covering the matter set forth in Exhibit E-2 and such other matters incident to
the transactions contemplated herein as the Co-Arrangers may reasonably request,
which legal opinion shall be accompanied by an accountant's letter from Price
Waterhouse addressed to each of the Agents and each of the Banks and dated the
Restatement Effective Date covering the matter set forth in Exhibit E-3 and such
other matters incident to the transactions contemplated herein as the
Co-Arrangers may reasonably request and (iii) from Fraser & ▇▇▇▇▇▇, counsel to
the Designated Onex Sub, an opinion addressed to each of the Agents and each of
the Banks and dated the Restatement Effective Date covering such of the matters
incident to the Credit Documents executed by the Designated Onex Sub as the
Co-Arrangers may reasonably request, which opinion shall be in form and
substance reasonably satisfactory to the Co-Arrangers.
5.05 Corporate Documents; Proceedings; etc. (a) On the Restatement
Effective Date, the Administrative Agent shall have received a certificate from
each Credit Party, each dated the Restatement Effective Date and signed by any
authorized officer of such Credit Party, and attested to by the Secretary or any
Assistant Secretary of such Credit Party, in the form of Exhibit F with
appropriate insertions, together with copies of such Credit Party's certificate
of incorporation and by-laws and the resolutions of such Credit Party referred
to in such certificate, and the foregoing shall be in form and substance
reasonably satisfactory to the Co-Arrangers.
(b) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement
and the other Documents shall be reasonably satisfactory in form and substance
to the Co-Arrangers and the Required Banks, and the Administrative Agent shall
have received all information and copies of all documents and papers, including
records of corporate proceedings, governmental approvals, good standing
certificates and bring-down telegrams or facsimiles, if any, which the
Co-Arrangers reasonably may have requested in connection therewith, such
documents and papers where appropriate to be certified by proper corporate or
governmental authorities.
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5.06 Caterair Credit Agreement; etc. On the Restatement Effective
Date, (i) Caterair shall have received $160,000,000 of gross cash proceeds from
the incurrence of loans under the Caterair Credit Agreement, (ii) the Borrower
shall have received $90,000,000 of gross cash proceeds from the incurrence of
loans under the Caterair Credit Agreement, (iii) all outstanding term loans of
Caterair under the Original Credit Agreement shall have been repaid in full with
proceeds of the loans incurred by Caterair under the Caterair Credit Agreement,
and (iv) the Caterair Credit Agreement shall be in full force and effect and no
default or event of default shall exist thereunder. On the Restatement Effective
Date, the Administrative Agent shall have received a true and complete copy of
the Caterair Credit Agreement, which shall be in form and substance reasonably
satisfactory to the Co-Arrangers and the Required Banks.
5.07 Issuance of 9-1/4% Senior Subordinated Notes. (a) On the
Restatement Effective Date, the Borrower shall have received gross cash proceeds
in an aggregate principal amount of $299,604,000 from the issuance by the
Borrower of the 9-1/4% Senior Subordinated Notes. On the Restatement Effective
Date, and concurrently with the issuance of the 9-1/4% Senior Subordinated Notes
on such date, the Borrower shall have utilized a portion of the net cash
proceeds from the issuance of the 9-1/4% Senior Subordinated Notes to finance
the repayment in full of all of its outstanding term loans under the Original
Credit Agreement.
(b) All terms of, and documentation for, the 9-1/4% Senior
Subordinated Notes and the other 9-1/4% Senior Subordinated Note Documents
(including, without limitation, amortization, maturities, interest rates,
covenants, defaults, remedies, sinking fund provisions, subordination provisions
and other terms) shall be required to be reasonably satisfactory in form and
substance to the Co-Arrangers and the Required Banks, it being understood and
agreed that in any event the 9-1/4% Senior Subordinated Notes shall be unsecured
but may be guaranteed on a junior and fully subordinated basis by Caterair and
the Subsidiary Guarantors. On the Restatement Effective Date, there shall have
been delivered to the Administrative Agent true and complete copies of all
9-1/4% Senior Subordinated Note Documents.
5.08 Pledge Agreements. On the Restatement Effective Date, (i) each
Credit Party (other than OFSI and the Designated Onex Sub) shall have duly
authorized, executed and delivered an amended and restated Pledge Agreement in
the form of Exhibit G-1, with such changes thereto, or such additional pledge
agreements (or amendments thereto) entered into in connection therewith, as
foreign counsel may suggest in connection with the Pledged Securities issued by
any Foreign Subsidiary of the Borrower designated by the Co-Arrangers (such
Pledge Agreement, together with such additional pledge agreements, as modified,
supplemented or amended from time
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to time, collectively, the "General Pledge Agreement"), (ii) OFSI shall have
duly authorized, executed and delivered an amended and restated Pledge Agreement
in the form of Exhibit G-2 (as modified, supplemented or amended from time to
time, the "OFSI Pledge Agreement") and (iii) the Designated Onex Sub shall have
duly authorized, executed and delivered an amended and restated Pledge Agreement
in the form of Exhibit G-3 (as modified, supplemented or amended from time to
time, the "Designated Onex Sub Pledge Agreement") and, in each case, each Credit
Party shall have delivered to the Collateral Agent, as Pledgee, all the Pledged
Securities, if any, referred to therein then owned by such Credit Party, (x)
endorsed in blank in the case of promissory notes constituting Pledged
Securities and (y) together with executed and undated stock powers (or the
equivalent thereof in the relevant jurisdiction) in the case of capital stock
constituting Pledged Securities.
5.09 Security Agreement. On the Restatement Effective Date, each
Credit Party (other than OFSI, Caterair Holdings and the Designated Onex Sub)
shall have duly authorized, executed and delivered an amended and restated
Security Agreement in the form of Exhibit H (as modified, supplemented or
amended from time to time, the "Security Agreement") covering all of the present
and future Security Agreement Collateral of such Credit Party, together with
evidence of the completion of all recordings and filings of, or with respect to,
the Security Agreement as may be necessary or, in the reasonable opinion of the
Collateral Agent desirable, to perfect the security interests intended to be
created by the Security Agreement.
5.10 Mortgage Amendments; Title Insurance. On the Restatement
Effective Date, the Collateral Agent shall have received:
(a) fully executed counterparts of amendments (the "Mortgage
Amendments"), in form and substance reasonably satisfactory to the
Co-Arrangers, to each of the Existing Mortgages, together with evidence
that counterparts of each of the Mortgage Amendments have been delivered
to the title insurance company insuring the lien of the Existing Mortgages
for recording in all places to the extent necessary or, in the reasonable
opinion of the Collateral Agent desirable, to effectively maintain and/or
create a valid and enforceable first priority mortgage lien on each
Existing Mortgaged Property (subject to only Permitted Liens) in favor of
the Collateral Agent for the benefit of the Secured Creditors; and
(b) endorsements to the Mortgage Policies on each Existing Mortgaged
Property issued by such title insurers reasonably satisfactory to the
Co-Arrangers assuring the Collateral Agent that the Existing Mortgages on
the Existing Mortgaged Properties are valid and enforceable first priority
mortgage
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liens on the respective Existing Mortgaged Properties, free and clear of
all defects, interests and encumbrances except Permitted Liens, and such
endorsements shall otherwise be in form and substance reasonably
satisfactory to the Co-Arrangers.
5.11 Subsidiaries Guaranty; Designated Onex Sub Guaranty. (a) On the
Restatement Effective Date, each Subsidiary Guarantor shall have duly
authorized, executed and delivered an amended and restated Guaranty in the form
of Exhibit I-1 (as modified, supplemented or amended from time to time, the
"Subsidiaries Guaranty"), and the Subsidiaries Guaranty shall be in full force
and effect.
(b) On the Restatement Effective Date, the Designated Onex Sub shall
have duly authorized, executed and delivered an amended and restated Guaranty in
the form of Exhibit I-2 (as modified, supplemented or amended from time to time,
the "Designated Onex Sub Guaranty"), and the Designated Onex Sub Guaranty shall
be in full force and effect.
5.12 Adverse Change; Approvals; etc. (a) (i) On the Restatement
Effective Date, nothing shall have occurred (and the Co-Arrangers and the Banks
shall have become aware of no facts, conditions or other information not
previously known) which the Co-Arrangers or the Required Banks shall determine
has had, or could reasonably be expected to have, a material adverse effect (x)
on the rights or remedies of the Agents or the Banks, or on the ability of any
Credit Party to perform their respective obligations to the Agents and the Banks
or (y) on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of OFSI and its Subsidiaries taken as a
whole, the Borrower and its Subsidiaries taken as a whole, Caterair, Caterair
and its Subsidiaries taken as a whole or Caterair Holdings and its Subsidiaries
taken as a whole from that set forth in the audited financial statements of such
Persons for their fiscal year ended December 31, 1996.
(b) On or prior to the Restatement Effective Date, all necessary
governmental (domestic and foreign) and third party approvals and/or consents in
connection with the consummation of the Transaction, the occurrence of any
Credit Event and any transactions contemplated by the Documents and otherwise
referred to or contemplated herein or therein shall have been (or will, within
the time frame required, be) obtained and remain in full effect, and all
applicable waiting periods shall have expired without any action being taken by
any competent authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of the Transaction, the occurrence of any
Credit Event or the consummation of the transactions contemplated by this
Agreement and the other Documents or otherwise referred to herein or therein.
Additionally, there shall not exist any judgment, order, injunction
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or other restraint issued or filed or a hearing seeking injunctive relief or
other restraint pending or notified prohibiting or imposing materially adverse
conditions upon the consummation of the Transaction, the occurrence of any
Credit Event or the consummation of any other transactions contemplated by this
Agreement and the other Documents.
5.13 Litigation. On the Restatement Effective Date, no litigation by
any entity (private or governmental) shall be pending or threatened (i) with
respect to the Transaction or this Agreement or any documentation executed in
connection herewith or therewith or the transactions contemplated hereby or
thereby, (ii) with respect to any material Indebtedness of OFSI, Caterair
Holdings or any of their respective Subsidiaries or (iii) which the Co-Arrangers
or the Required Banks shall determine could reasonably be expected to have a
materially adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of OFSI and its
Subsidiaries taken as a whole, SCIS, SCIS and its Subsidiaries taken as a whole,
Caterair, Caterair and its Subsidiaries taken as a whole or Caterair Holdings
and its Subsidiaries taken as a whole.
5.14 Solvency Certificate; Insurance Certificates. On the
Restatement Effective Date, there shall have been delivered to the
Administrative Agent (i) solvency certificates from an Authorized Financial
Officer of the Borrower and Caterair, in the form of Exhibit J to this Agreement
and Exhibit F to the Caterair Credit Agreement, respectively, and each dated the
Restatement Effective Date and (ii) certificates of insurance complying with the
requirements of Section 8.03, for the business and properties of the Borrower,
Caterair and their respective Subsidiaries, and in scope, form and substance
reasonably satisfactory to the Co-Arrangers and the Required Banks, including by
naming the Collateral Agent as an additional insured and/or loss payee, and
stating that such insurance shall not be cancelled or revised without at least
30 days prior written notice by the respective insurer to the Collateral Agent.
5.15 Pro Forma Balance Sheets. On the Restatement Effective Date,
there shall have been delivered to the Administrative Agent an unaudited pro
forma consolidated balance sheet as of June 30, 1997 of each of (i) the Borrower
and its Subsidiaries and (ii) Caterair, in each case after giving effect to the
Transaction and the incurrence of all Indebtedness contemplated herein and
prepared in accordance with generally accepted accounting principles, which pro
forma consolidated balance sheets shall be in form and substance reasonably
satisfactory to the Co-Arrangers and the Required Banks.
5.16 Original Credit Agreement. On the Restatement Effective Date,
all accrued and unpaid interest and fees under the Original Credit Agreement
shall have
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been paid in full regardless of whether or not such amounts would otherwise be
due and payable at such time pursuant to the terms of the Original Credit
Agreement.
5.17 Caterair Holdings Subordination Agreement; etc. On the
Restatement Effective Date, (i) Caterair Holdings, Renex, Canex and the
Administrative Agent shall have duly authorized, executed and delivered an
amended and restated Subordination Agreement in the form of Exhibit L (as
amended, modified or supplemented from time to time, the "Caterair Holdings,
Subordination Agreement"), and (ii) OFSI, Canex, the Administrative Agent and
Renex shall have entered into a letter agreement in the form of Exhibit N.
5.18 13% Senior Subordinated Note Tender Offer; 13% Senior
Subordinated Note Consents; 13% Senior Subordinated Note Indenture Supplement.
(a) On the Restatement Effective Date, the Borrower shall have accepted for
payment at least a majority of the outstanding principal amount of the 13%
Senior Subordinated Notes issued by it and tendered pursuant to the 13% Senior
Subordinated Note Tender Offer and each of the conditions to such purchase set
forth in the 13% Senior Subordinated Note Tender Offer Documents shall have been
satisfied and not waived to the satisfaction of the Administrative Agent and the
Required Banks (it being understood and agreed that the actual payment of any
such 13% Senior Subordinated Notes so tendered shall not be required to be made
until the end of the scheduled tender offer or within one Business Day
thereafter, which is 5:00 p.m. on September 24, 1997 (the "13% Senior
Subordinated Note Tender Offer Expiration Date")). The 13% Senior Subordinated
Note Tender Offer shall be conducted in compliance with the 13% Senior
Subordinated Note Tender Offer Documents and all applicable laws (including,
without limitation, Federal and state securities laws).
(b) On the Restatement Effective Date, the Borrower shall have
received sufficient 13% Senior Subordinated Note Consents pursuant to the
Consent Solicitation to authorize the execution and delivery of the 13% Senior
Subordinated Note Indenture Supplement and the 13% Senior Subordinated Note
Indenture Supplement shall have been duly executed and delivered by the Borrower
and the 13% Senior Subordinated Note Indenture Trustee and all conditions to the
effectiveness thereof shall have been satisfied. The Consent Solicitation and
the amendments effected to the 13% Senior Subordinated Note Indenture pursuant
to the 13% Senior Subordinated Note Indenture Supplement shall be conducted in
compliance with the Consent Solicitation Documents and all applicable laws
(including, without limitation, Federal and state securities laws).
(c) On the Restatement Effective Date, there shall have been
delivered to the Administrative Agent true and correct copies of all 13% Senior
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Subordinated Note Tender Offer Documents and Consent Solicitation Documents
(including executed versions of the 13% Senior Subordinated Note Indenture
Supplement). The Administrative Agent shall have received evidence in form,
scope and substance satisfactory to the Administrative Agent and the Required
Banks that the matters set forth in this Section 5.18 have been satisfied at
such time.
SECTION 6. Conditions Precedent to all Credit Events. The obligation
of each Bank to make Loans and the obligation of each Issuing Bank to issue any
Letter of Credit is subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
6.01 Restatement Effective Date. The Restatement Effective Date
shall have occurred.
6.02 No Default; Representations and Warranties. At the time of each
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of the making of such Credit Event (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such a specified date, and it being further
understood and agreed that (x) so long as (A) there is sufficient availability
under the Total Revolving Loan Commitment as determined in accordance with
Sections 1.01(a) and/or (b), (B) no Default or Event of Default under Section
10.05 shall have occurred and be continuing and (C) the Loans shall not have
been accelerated pursuant to Section 10, the Borrower shall be entitled to
request a Borrowing of Revolving Loans and/or Swingline Loans the proceeds of
which shall be used solely to repay any Unpaid Drawings then outstanding in
accordance with Section 2.05(a) and (y) any Unpaid Drawing that remains unpaid
for five Business Days or less from the date that the Borrower receives notice
of the respective Drawing shall not prevent the Borrowing of any Revolving Loans
and/or Swingline Loans for which a Notice of Borrowing has theretofore been
given so long as no other Default or Event of Default is then in existence).
6.03 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
making of each Revolving Loan (other than a Revolving Loan made pursuant to a
Mandatory Borrowing), the Administrative Agent shall have received a Notice of
Borrowing meeting the requirements of Section 1.03(a). Prior to the making of
each Swingline Loan, the Swingline Bank shall receive the notice referred to in
Section 1.03(b)(i).
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(b) Prior to the issuance of any Letter of Credit (other than
Existing Letters of Credit), the Administrative Agent and the respective Issuing
Bank shall have received a Letter of Credit Request (together with such other
documents, if any, as such Issuing Bank shall identify to the Borrower as being
customarily included in connection therewith) meeting the requirements of
Section 2.03.
The occurrence of the Restatement Effective Date and the acceptance
of the benefits or proceeds of each Credit Event shall constitute a
representation and warranty by OFSI, Caterair Holdings, Caterair and the
Borrower to each of the Agents and each of the Banks that all of the conditions
specified in Section 5 and in this Section 6 and applicable to the Restatement
Effective Date and such Credit Event exist as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5 and in this Section 6, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Banks and, except for the Notes, in sufficient counterparts for each of the
Banks and shall be in form and substance satisfactory to the Required Banks.
SECTION 7. Representations, Warranties and Agreements. In order to
induce the Banks to enter into this Agreement and to make the Loans, and issue
(or participate in) the Letters of Credit as provided herein, each of OFSI,
Caterair Holdings, the Borrower and Caterair makes the following
representations, warranties and agreements, in each case after giving effect to
the Transaction, all of which shall survive the execution and delivery of this
Agreement and the Notes and the making of the Loans and issuance of the Letters
of Credit, with the occurrence of the Restatement Effective Date and each Credit
Event on or after the Restatement Effective Date being deemed to constitute a
representation and warranty that the matters specified in this Section 7 are
true and correct on and as of the Restatement Effective Date and the date of
each such Credit Event (it being understood and agreed that any representation
or warranty which by its terms is made as of a specified date shall be required
to be true and correct in all material respects only as of such specified date).
7.01 Corporate Status. Each of OFSI, Caterair Holdings, the Borrower
and each Subsidiary of Caterair Holdings and the Borrower (i) is a duly
organized and validly existing corporation in good standing under the laws of
the jurisdiction of its organization, (ii) has the corporate power and authority
to own its property and assets and to transact the business in which it is
engaged and presently proposes to engage and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction where the
ownership of its property or the operation or conduct of its business requires
such qualifications except for failures to be so qualified which, individually
or in the aggregate, could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities, condition
(▇▇▇▇▇-
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cial or otherwise) or prospects of the Borrower, the Borrower and its
Subsidiaries taken as a whole, Caterair, Caterair and its Subsidiaries taken as
a whole or OFSI and its SCIS Subsidiaries taken as a whole.
7.02 Corporate Power and Authority. Each Credit Party has the
corporate power and authority to execute, deliver and perform the terms and
provisions of each of the Documents to which it is party and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of each of such Documents. Each Credit Party has duly executed and
delivered each of the Documents to which it is party, and each of such Documents
constitutes the legal, valid and binding obligation of such Credit Party
enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
applicable law, statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms, covenants, conditions
or provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except pursuant
to the Security Documents, the Caterair Holdings CD Pledge Agreement and the
Subordinated Intercompany Security Agreement) upon any of the properties or
assets of OFSI, Caterair Holdings, the Borrower or any Subsidiary of Caterair
Holdings or the Borrower pursuant to the terms of any indenture, mortgage, deed
of trust, credit agreement or loan agreement, or any other material agreement,
contract or instrument to which OFSI, Caterair Holdings, the Borrower or any
Subsidiary of Caterair Holdings or the Borrower is a party or by which it or any
of its property or assets is bound or to which it may be subject or (iii) will
violate any provision of the certificate of incorporation or by-laws (or
equivalent organizational documents) of OFSI, Caterair Holdings, the Borrower or
any Subsidiary of Caterair Holdings or the Borrower.
7.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made on or prior to the Restatement Effective
Date, or to the extent not required to be obtained or made on or prior to the
Restatement Effective Date pursuant to the Transaction Documents, as will be
obtained or made on or prior to the required date therefor), or exemption by,
any governmental or public body or authority
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or any subdivision thereof, is required to authorize, or is required for, (i)
the execution, delivery and performance of any Document, (ii) the legality,
validity, binding effect or enforceability of any such Document or (iii) the
consummation of the Transaction.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Financial Projections. (a) The consolidated balance sheet of each
of the Borrower and its Subsidiaries and Caterair Holdings and its Subsidiaries
at December 31, 1996 and June 30, 1997, and the related consolidated statements
of income, retained earnings and cash flow for the fiscal year and six-month
period ended on such dates, and furnished to the Banks prior to the Restatement
Effective Date present fairly the consolidated financial position of each of the
Borrower and its Subsidiaries and Caterair Holdings and its Subsidiaries at the
date of such balance sheets and the results of operations for the periods
covered thereby. All such financial statements have been prepared in accordance
with generally accepted accounting principles and practices consistently
applied. Since December 31, 1996 (and after giving effect to the Transaction),
there has been no material adverse change in the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of the
Borrower, the Borrower and its Subsidiaries taken as a whole, Caterair, Caterair
and its Subsidiaries taken as a whole or OFSI and its SCIS Subsidiaries taken as
a whole.
(b) On and as of the Restatement Effective Date, after giving effect
to the Transaction and to all Indebtedness (including the Loans) being incurred
or assumed and Liens created by each Credit Party in connection therewith, (A)
the sum of the assets, at a fair valuation of each of OFSI and its Subsidiaries
taken as a whole and the Borrower, Caterair and their respective Subsidiaries
taken as a whole will exceed their respective debts, (B) each of OFSI and its
Subsidiaries taken as a whole and the Borrower, Caterair and their respective
Subsidiaries taken as a whole have not incurred and do not intend to incur, and
do not believe that they will incur, debts beyond their ability to pay such
debts as such debts mature and (C) each of OFSI and its Subsidiaries taken as a
whole and the Borrower, Caterair and their respective Subsidiaries taken as a
whole will have sufficient capital with which to conduct their business. For
purposes of this Section 7.05(b), "debt" means any liability on a claim, and
"claim" means (i) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(c) Except as fully disclosed in the financial statements delivered
pursuant to Section 7.05(a), there were as of the Restatement Effective Date no
liabil-
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ities or obligations with respect to OFSI, Caterair Holdings or any of their
respective Subsidiaries of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) which, either individually or in
aggregate, could reasonably be expected to be material to OFSI, Caterair
Holdings or any of their respective Subsidiaries (other than any such
liabilities or obligations which arise in the ordinary course of business in
connection with contracts entered into by any such Person). As of the
Restatement Effective Date, none of OFSI, Caterair Holdings, Caterair nor the
Borrower knows of any basis for the assertion against it or any of its
Subsidiaries of any liability or obligation of any nature whatsoever that is not
fully disclosed in the financial statements delivered pursuant to Section
7.05(a) which, either individually or in the aggregate, could reasonably be
expected to be material to OFSI, Caterair Holdings, the Borrower, Caterair or
any of their respective Subsidiaries.
(d) On and as of the Restatement Effective Date, (i) there are no
statements or conclusions in any of the financial projections dated August 5,
1997 previously delivered to the Banks (the "Financial Projections") which are
based upon or include information known to OFSI, Caterair Holdings, the Borrower
or Caterair to be misleading in any material respect or which fail to take into
account material information regarding the matters reported therein. On the
Restatement Effective Date, each of OFSI, Caterair Holdings, the Borrower and
Caterair believes that the Financial Projections are reasonable and attainable,
it being understood that the Financial Projections include assumptions as to
future events that are not to be viewed as facts and that actual results may
differ materially from the projected results.
7.06 Litigation. There are no actions, suits or proceedings pending
or threatened (i) with respect to any Document or the transactions contemplated
hereby or thereby, (ii) with respect to any material Indebtedness of OFSI,
Caterair Holdings, the Borrower or any Subsidiary of Caterair Holdings or the
Borrower, or (iii) that could reasonably be expected to materially and adversely
affect the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower, the Borrower and its
Subsidiaries taken as a whole, Caterair, Caterair and its Subsidiaries taken as
a whole or OFSI and its SCIS Subsidiaries taken as a whole.
7.07 True and Complete Disclosure. All factual information (taken as
a whole) furnished by or on behalf of OFSI, Caterair Holdings or any of their
respective Subsidiaries in writing to any Agent or any Bank (including, without
limitation, all information contained in the Documents) for purposes of or in
connection with this Agreement, the other Documents or any transaction
contemplated herein or therein is, and all other such factual information (taken
as a whole) hereafter furnished by or on behalf of OFSI, Caterair Holdings or
any of their respective Subsidiaries in writing to any Agent or any Bank, will
be, true and accurate in all material respects on
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the date as of which such information is dated or certified and not incomplete
by omitting to state any fact necessary to make such information (taken as a
whole) not misleading in any material respect at such time in light of the
circumstances under which such information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of
Revolving Loans and Swingline Loans shall be used to finance the working capital
requirements and general corporate purposes of the Borrower, Caterair and their
respective Subsidiaries.
(b) No part of the proceeds of any Loan will be used to purchase or
carry any Margin Stock or to extend credit for the purpose of purchasing or
carrying any Margin Stock. Neither the making of any Loan nor the use of the
proceeds thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
7.09 Tax Returns and Payments. Each of OFSI, Caterair Holdings and
each of their respective Subsidiaries has filed or caused to be filed, on a
timely basis with the appropriate taxing authority, all material federal, state
and other returns, statements, forms and reports for taxes (the "Returns")
required to be filed by or with respect to the income, properties or operations
of OFSI, Caterair Holdings and their respective Subsidiaries. The Returns
accurately reflect in all material respects all liability for taxes of OFSI,
Caterair Holdings and their respective Subsidiaries and for the periods covered
thereby. Each of OFSI, Caterair Holdings and each of their respective
Subsidiaries has paid all material taxes payable by it other than taxes which
are not delinquent, and other than those contested in good faith and for which
adequate reserves have been established in accordance with generally accepted
accounting principles. There is no material action, suit, proceeding,
investigation, audit or claim now pending or threatened by any taxing authority
regarding any taxes relating to OFSI, Caterair Holdings or any of their
respective Subsidiaries. As of the Restatement Effective Date, none of OFSI,
Caterair Holdings nor any of their respective Subsidiaries has entered into an
agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of OFSI, Caterair Holdings or any of their respective Subsidiaries to a
period ending after the Restatement Effective Date. None of OFSI, Caterair
Holdings nor any of their respective Subsidiaries has provided, with respect to
itself or property held by it, any consent under Section 341(f) of the Code.
None of OFSI, Caterair Holdings nor any of their respective Subsidiaries has
incurred, or will incur, any material tax liability for any tax year, or portion
thereof, ending on or before the
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Restatement Effective Date, in connection with the Transaction or the other
transactions contemplated hereby and thereby.
7.10 Compliance with ERISA. (i) Each Plan is in substantial
compliance with ERISA and the Code; no Reportable Event has occurred with
respect to a Plan; no Plan is insolvent or in reorganization; no Plan that is a
single-employer plan (as defined in Section 4001 of ERISA) has an Unfunded
Current Liability; no Plan has an accumulated or waived funding deficiency or
has applied for an extension of any amortization period within the meaning of
Section 412 of the Code; all contributions required to be made with respect to a
Plan and a Foreign Pension Plan have been timely made; none of OFSI, Caterair
Holdings nor any Subsidiary or ERISA Affiliate of OFSI or Caterair Holdings has
incurred any material liability to or on account of a Plan pursuant to Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971, 4975 or 4980 of the Code or expects to incur any
material liability (including any indirect, contingent, or secondary liability)
under any of the foregoing Sections with respect to any Plan; no proceedings
have been instituted to terminate or appoint a trustee to administer any Plan;
no condition exists which presents a material risk to OFSI, Caterair Holdings or
any Subsidiary or ERISA Affiliate of OFSI or Caterair Holdings of incurring a
material liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code; using actuarial assumptions and computation
methods consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of OFSI, Caterair Holdings and their respective Subsidiaries and
ERISA Affiliates to all Plans which are multiemployer plans (as defined in
Section 4001(a)(3) of ERISA) in the event of a complete withdrawal therefrom, as
of the close of the most recent fiscal year of each such Plan ended prior to the
date of the most recent Credit Event, would not exceed $5,000,000; no lien
imposed under the Code or ERISA on the assets of OFSI, Caterair Holdings or any
Subsidiary or ERISA Affiliate of OFSI or Caterair Holdings exists or is likely
to arise on account of any Plan; and if OFSI, Caterair Holdings and their
respective Subsidiaries were to cease contributions to or terminate any employee
benefit plan maintained by any of them after securing appropriate governmental
and union consents and approvals, the unfunded liability for benefits then due
could not reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower, the Borrower and its Subsidiaries taken
as a whole, Caterair, Caterair and its Subsidiaries taken as a whole or OFSI and
its SCIS Subsidiaries taken as a whole.
(ii) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. None of OFSI,
Caterair Holdings nor
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any of their respective Subsidiaries has incurred any obligation in connection
with the termination of or withdrawal from any Foreign Pension Plan. The present
value of the accrued benefit liabilities (whether or not vested) attributable to
employees of OFSI, the Borrower, Caterair Holdings or any of their respective
Subsidiaries under each Foreign Pension Plan, determined as of the end of OFSI's
and Caterair Holdings' most recently ended fiscal year on the basis of actuarial
assumptions, which are reasonable in the aggregate, did not exceed the current
value of the assets of such Foreign Pension Plan allocable to such benefit
liabilities by more than $4,000,000.
7.11 The Security Documents. (a) The provisions of the Security
Agreement are effective to create in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of each Credit Party party to the
Security Agreement in the Security Agreement Collateral, and the Security
Agreement, upon the filing of Form UCC-1 financing statements or the appropriate
equivalent (which filings have been made), creates a fully perfected first lien
on, and security interest in, all right, title and interest in all of the
Security Agreement Collateral to the extent that such Security Agreement
Collateral consists of the type of property in which a security interest may be
perfected by filing a financing statement under the UCC as enacted in any
relevant jurisdiction, subject to no other Liens other than Permitted Liens. The
recordation of the Assignment of Security Interest in U.S. Patents and
Trademarks in the form attached to the Security Agreement in the United States
Patent and Trademark Office together with filings on Form UCC-1 made pursuant to
the Security Agreement will be effective, under applicable law, to perfect the
security interest granted to the Collateral Agent in the trademarks and patents
covered by the amended and restated Security Agreement and the recordation of
the Assignment of Security Interest in U.S. Copyrights in the form attached to
the Security Agreement with the United States Copyright Office together with
filings on Form UCC-1 made pursuant to the Security Agreement will be effective
under federal law to perfect the security interest granted to the Collateral
Agent in the copyrights covered by the Security Agreement. Each Credit Party to
the Security Agreement has good and valid title to all Security Agreement
Collateral owned by it, free and clear of all Liens except Permitted Liens.
(b) The security interests created in favor of the Collateral Agent,
as Pledgee, for the benefit of the Secured Creditors under the Pledge Agreements
constitute first priority perfected security interests in the Pledged
Securities, subject to no security interests of any other Person. No filings or
recordings are required in order to perfect (or maintain the perfection or
priority of) the security interests created in the Pledged Securities and the
proceeds thereof under the Pledge Agreements (other than, in respect of such
proceeds, the filing of Form UCC-1 financing statements or the appropriate
equivalent (which filings have been made)).
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(c) The Mortgages create, upon recording thereof and of the Mortgage
Amendments which recordings in the case of the Mortgages, have been made, and in
the case of the Mortgage Amendments, will be made within 10 days after the
Restatement Effective Date, as security for the obligations purported to be
secured thereby, a valid and enforceable first priority perfected security
interest in and mortgage lien on all of the Mortgaged Properties in favor of the
Collateral Agent for the benefit of the Secured Creditors and subject to no
other Liens (other than Permitted Liens). Each Credit Party has good and
marketable title to all fee-owned Mortgaged Properties owned by such Credit
Party and valid leasehold title to all leasehold Mortgaged Properties leased by
such Credit Party, in each case free and clear of all leases, occupancy
interests and all Liens except Permitted Liens.
7.12 Representations and Warranties in Other Documents. (a) On the
Restatement Effective Date, all representations and warranties made by any
Credit Party in the Caterair Credit Agreement and in the 9-1/4% Senior
Subordinated Note Documents were true and correct in all material respects as at
the time as of which such representations and warranties were made (or deemed
made).
(b) On the date of each Credit Event, all representations and
warranties contained in the other Credit Documents shall be true and correct in
all material respects as if made on such date.
7.13 Properties. Each of OFSI, Caterair Holdings, the Borrower and
each Subsidiary of Caterair Holdings and the Borrower has good and valid title
to all material properties owned by it, including, without limitation, all
property reflected as owned by it in the consolidated balance sheets of the
Borrower and Caterair Holdings referred to in Section 7.05(a) (except as sold or
otherwise disposed of since the date of such balance sheets pursuant to
transactions not prohibited under the Original Credit Agreement or this
Agreement), free and clear of all Liens, other than (i) as referred to in the
balance sheets or in the notes thereto or (ii) Permitted Liens. Schedule IV sets
forth a true and complete description of all Real Property owned or leased by
OFSI, Caterair Holdings, the Borrower and each Domestic Subsidiary of Caterair
Holdings and the Borrower on the Restatement Effective Date, the type of
interest therein held by such Person and sets forth the direct owner or lessee
thereof and whether such Real Property is subject to any of the Lease
Agreements.
7.14 Capitalization. (a) On the Restatement Effective Date, the
authorized capital stock of (i) OFSI consists of (x) 210,000 shares of Class A
Common Stock, $.01 par value per share (the "OFSI Class A Common Stock"), of
which 128,525.05, shares were issued and 123,184.81 shares were outstanding as
of June 30, 1997, (y) 40,000 shares of Class AA Common Stock, $.01 par value per
share, of
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which 38,326.36 shares were issued and outstanding as of June 30, 1997 and (z)
21,000 shares of Class B Common Stock, $.01 par value per share (the "OFSI Class
B Common Stock"), of which 15,207.30 shares were issued and 12,975.20 shares
were outstanding as of June 30, 1997, (ii) Caterair Holdings consists of (x)
1,000,000 shares of Caterair Holdings Class A Nonvoting Common Stock, all of
which shares are issued and outstanding and (y) 100,000 shares of Caterair
Holdings Class B Voting Common Stock, all of which shares are issued and
outstanding, (iii) the Borrower consists of 3,000 shares of common stock, $.01
par value per share, of which 100 shares are issued and outstanding and owned of
record and beneficially by OFSI and (iv) Caterair consists of 10,000 shares of
common stock, $.01 par value per share, all of which shares are issued and
outstanding and owned of record and beneficially by Caterair Holdings. All such
outstanding shares of common stock have been duly and validly issued, are fully
paid and nonassessable and are free of preemptive rights. Except as set forth on
Schedule V, none of OFSI, Caterair Holdings, the Borrower nor Caterair has
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
or warrants for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock.
7.15 Subsidiaries. Schedule VI lists each Subsidiary of OFSI and
Caterair Holdings and the direct and indirect ownership interest of OFSI and
Caterair Holdings therein, in each case as of the Restatement Effective Date.
All outstanding shares of capital stock of each Subsidiary of OFSI and Caterair
Holdings have been duly and validly issued, are fully paid and non-assessable
and have been issued free of preemptive rights. Except as set forth on Schedule
V, no Subsidiary of the Borrower or Caterair has outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any right
to subscribe for or to purchase, or any options or warrants for the purchase of,
or any agreement providing for the issuance (contingent or otherwise) of or any
calls, commitments or claims of any character relating to, its capital stock or
any stock appreciation or similar rights.
7.16 Compliance with Statutes, etc. Each of OFSI, Caterair Holdings,
the Borrower and each Subsidiary of Caterair Holdings and the Borrower is in
compliance with all applicable statutes, laws, ordinances, codes, rules,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such instances of noncompliance as could not, individually or
in the aggregate, reasonably be expected to have a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower, the Borrower and its Subsidiaries taken
as a
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whole, Caterair, Caterair and its Subsidiaries taken as a whole or OFSI and its
SCIS Subsidiaries taken as a whole.
7.17 Investment Company Act. None of OFSI, Caterair Holdings, the
Borrower nor any Subsidiary of Caterair Holdings or the Borrower is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
7.18 Public Utility Holding Company Act. None of OFSI, Caterair
Holdings, the Borrower nor any Subsidiary of Caterair Holdings or the Borrower
is a "holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
7.19 Environmental Matters. (a) Each of OFSI, Caterair Holdings, the
Borrower and each Subsidiary of Caterair Holdings and the Borrower is in
compliance with all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws. There are no pending or threatened
Environmental Claims against OFSI, Caterair Holdings, the Borrower or any
Subsidiary of Caterair Holdings or the Borrower or any Real Property owned or
operated by any such Person. There are no facts, circumstances, conditions or
occurrences on any Real Property owned or operated by OFSI, Caterair Holdings,
the Borrower or any Subsidiary of Caterair Holdings or the Borrower or on any
property adjoining or in the vicinity of any such Real Property that could
reasonably be expected (i) to form the basis of an Environmental Claim against
OFSI, Caterair Holdings, the Borrower or any Subsidiary of Caterair Holdings or
the Borrower or any such Real Property or (ii) to cause any such Real Property
to be subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property by OFSI, Caterair Holdings, the Borrower
or any Subsidiary of Caterair Holdings or the Borrower under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned or
operated by OFSI, Caterair Holdings, the Borrower or any Subsidiary of Caterair
Holdings or the Borrower where such generation, use, treatment or storage has
violated any Environmental Law. Hazardous Materials have not at any time been
Released on or from any Real Property owned or operated by OFSI, Caterair
Holdings, the Borrower or any Subsidiary of Caterair Holdings or the Borrower
where such Release has violated any applicable Environmental Law. There are no
underground storage tanks located on any Real Property owned or operated by
OFSI, Caterair Holdings, the
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Borrower or any Subsidiary of Caterair Holdings or the Borrower that are not in
compliance with all Environmental Laws.
(c) Notwithstanding anything to the contrary in this Section 7.19,
the representations made in this Section 7.19 shall only be untrue if the effect
of the failures and noncompliances of the types described above, either
individually or in the aggregate, have had, or could reasonably be expected to
have, a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower,
the Borrower and its Subsidiaries taken as a whole, Caterair, Caterair and its
Subsidiaries taken as a whole or OFSI and its SCIS Subsidiaries taken as a
whole.
7.20 Labor Relations. None of OFSI, Caterair Holdings, the Borrower
nor any Subsidiary of Caterair Holdings or the Borrower is engaged in any unfair
labor practice that could reasonably be expected to have a material adverse
effect on the Borrower, the Borrower and its Subsidiaries taken as a whole,
Caterair, Caterair and its Subsidiaries taken as a whole, or OFSI and its SCIS
the Subsidiaries taken as a whole. There is (i) no unfair labor practice
complaint pending against OFSI, Caterair Holdings, the Borrower or any
Subsidiary of Caterair Holdings or the Borrower or threatened against any of
them, before the National Labor Relations Board or pursuant to the Railway Labor
Act, and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against OFSI, Caterair Holdings,
the Borrower or any Subsidiary of Caterair Holdings or the Borrower or
threatened against any of them, (ii) no strike, labor dispute, slowdown or
stoppage pending against OFSI, Caterair Holdings, the Borrower or any Subsidiary
of Caterair Holdings or the Borrower or threatened against any of them and (iii)
no union representation proceeding pending with respect to the employees of
OFSI, Caterair Holdings, the Borrower or any Subsidiary of Caterair Holdings or
the Borrower except (with respect to any matter specified in clause (i), (ii) or
(iii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower, the Borrower and its Subsidiaries taken as a whole,
Caterair, Caterair and its Subsidiaries taken as a whole or OFSI and its SCIS
Subsidiaries taken as a whole.
7.21 Patents, Licenses, Franchises and Formulas. Each of OFSI,
Caterair Holdings, the Borrower and each Subsidiary of Caterair Holdings and the
Borrower owns all patents, trademarks, permits, service marks, trade names,
copyrights, licenses, franchises and formulas, or has rights with respect to the
foregoing, and has obtained assignments of all leases and other rights of
whatever nature, reasonably necessary for the present conduct of its business,
without any known conflict
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with the rights of others which, or the failure to obtain which, as the case may
be, could reasonably be expected to result in a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower, the Borrower and its Subsidiaries taken
as a whole, Caterair, Caterair and its Subsidiaries taken as a whole or OFSI and
its SCIS Subsidiaries taken as a whole.
7.22 Indebtedness; Subordination Provisions; etc. (a) Schedule VII
sets forth a true and complete list of all Indebtedness of OFSI, Caterair
Holdings and their respective Subsidiaries as of the Restatement Effective Date
and which is to remain outstanding after giving effect thereto (excluding the
Loans, the Letters of Credit, the loans under the Caterair Credit Agreement, the
Senior Subordinated Notes, the Caterair Holdings Unsecured Debentures, the
Caterair Holdings Secured Note, the Existing Caterair Senior Notes and the
SCIS/Caterair Loan, the "Existing Indebtedness"), in each case showing the
aggregate principal amount thereof and the name of the respective borrower and
any Credit Party or any of its Subsidiaries which directly or indirectly
guaranteed such debt.
(b) The subordination provisions contained in the Senior
Subordinated Notes and in the other Senior Subordinated Note Documents are
enforceable against the Borrower, Caterair, the other Subsidiary Guarantors and
the holders of the Senior Subordinated Notes, and all Obligations and Guaranteed
Obligations (as defined herein and in the Subsidiaries Guaranty) are within the
definition of "Senior Indebtedness" or "Guarantor Senior Indebtedness", as the
case may be, included in such subordination provisions.
(c) The subordination provisions contained in the Caterair Holdings
Subordination Agreement are enforceable against Caterair Holdings and the
holders of the Caterair Holdings Unsecured Debentures.
(d) None of OFSI, Caterair Holdings, the Borrower nor any Subsidiary
of Caterair Holdings or the Borrower is liable for any Indebtedness or other
obligations (except, (i) in the case of such other obligations, those in the
nature of ERISA, tax and similar obligations in which OFSI and its SCIS
Subsidiaries are jointly and severally liable with OFSI and its Non-SCIS
Subsidiaries as a matter of law and (ii) in the case of OFSI, to the extent that
such recourse is expressly limited solely to the Class B Assets or the equity
interests of any Non-SCIS Subsidiary or any Dividends or earnings from, or any
proceeds in respect of, any thereof) of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due) of any Non-SCIS
Subsidiaries.
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7.23 Consummation of Transaction. At the time of consummation
thereof, the Transaction shall have been consummated in accordance with the
terms of the respective Documents and all applicable United States and other
laws. At the time of consummation thereof, all consents, approvals of and
permits for, and filings and registrations with, and all other actions in
respect of, all governmental agencies, authorities or instrumentalities required
in order to make or consummate the Transaction have been (or will, within the
time frame required, be) obtained, given, filed or taken and are or will be in
full force and effect (or effective judicial relief with respect thereto has
been obtained). All applicable waiting periods with respect to the Transaction
shall have expired without any action being taken by any competent authority
which restrains, prevents or imposes material adverse conditions upon the
Transaction. Additionally, there does not exist any judgment, order or
injunction prohibiting or imposing material adverse conditions upon the
Transaction or the occurrence of any Credit Event or the performance by OFSI,
Caterair Holdings or any of their respective Subsidiaries of their obligations
under the respective Documents. All actions taken by OFSI, Caterair Holdings or
any of their respective Subsidiaries pursuant to or in furtherance of the
consummation of the Transaction have been taken in compliance with the
respective Documents therefor and all applicable United States and other laws.
SECTION 8. Affirmative Covenants. Each of OFSI, Caterair Holdings,
Caterair and the Borrower covenants and agrees that on and after the Restatement
Effective Date and until the Total Revolving Loan Commitment and all Letters of
Credit have terminated and the Loans, Notes and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder and thereunder are
paid in full (other than indemnity and similar obligations that are not then due
and payable):
8.01 Information Covenants. OFSI, Caterair Holdings, the Borrower
and Caterair will, as applicable, furnish to the Administrative Agent (with
sufficient copies for each of the Banks) (and the Administrative Agent will
promptly thereafter furnish to each Bank):
(a) Monthly Reports. Within 30 days after the end of each fiscal
month of the Borrower and Caterair (or 60 days after the end of each
December), the consolidated balance sheet of each of the Borrower and its
Subsidiaries and Caterair and its Subsidiaries as at the end of such
fiscal month and the related consolidated statements of income and
retained earnings and statement of cash flows for such fiscal month and
for the elapsed portion of the fiscal year ended with the last day of such
fiscal month, in each case setting forth comparative figures for the
corresponding fiscal month in the prior fiscal year and, to the extent the
respective budget has previously been delivered, comparative figures
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for such fiscal month as set forth in the respective budget delivered
pursuant to Section 8.01(e), all of which shall be certified by an
Authorized Financial Officer of the Borrower or Caterair, as applicable,
subject to normal year-end audit adjustments and the absence of footnotes.
(b) Quarterly Financial Statements. Within 45 days after the close
of the first three quarterly accounting periods in each fiscal year of
OFSI, Caterair Holdings, the Borrower and Caterair, (w) in the case of
OFSI, the consolidated balance sheet of OFSI as at the end of such
quarterly accounting period and the related consolidated statements of
income and retained earnings and consolidated statement of cash flows, in
each case for such quarterly accounting period and for the elapsed portion
of the fiscal year ended with the last day of such quarterly accounting
period, (x) in the case of the Borrower, the consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such quarterly
accounting period and the related consolidated statements of income and
retained earnings and the statement of cash flows, in each case for such
quarterly accounting period and for the elapsed portion of the fiscal year
ended with the last date of such quarterly accounting period, (y) in the
case of Caterair, the consolidated balance sheet of Caterair and its
Subsidiaries as at the end of such quarterly accounting period and the
related consolidated statements of income and retained earnings and the
statement of cash flows, in each case for such quarterly accounting period
and for the elapsed portion of the fiscal year ended with the last day of
such quarterly accounting period, and (z) also in the case of the
Borrower, a statement of the combined debt of the Borrower, Caterair and
their respective Subsidiaries as at the end at such quarterly accounting
period and the combined statements of income and the combined statement of
cash flows for the Borrower, Caterair and their respective Subsidiaries,
in each case for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly
accounting period (with such combined statements to be prepared on a basis
consistent with those combined statements delivered under the Original
Credit Agreement), in each case (with respect to preceding clauses (w),
(x), (y) and (z)) setting forth comparative figures for the corresponding
periods in the prior fiscal year, all of which shall be certified by an
Authorized Financial Officer of OFSI, Caterair Holdings, the Borrower or
Caterair, as applicable, subject to normal year-end audit adjustments and
the absence of footnotes.
(c) Annual Financial Statements. Within 105 days after the close of
each fiscal year of OFSI, Caterair Holdings, the Borrower and Caterair,
(i) (v) in the case of OFSI, the consolidated balance sheet of OFSI as at
the end of such fiscal year and the related consolidated statements of
income and retained
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earnings and the consolidated statement of cash flows for such fiscal year
setting forth comparative figures for the preceding fiscal year, (w) in
the case of Caterair Holdings, the consolidated balance sheet of Caterair
Holdings as at the end of such fiscal year and the related consolidated
statements of income and retained earnings and the consolidated statement
of cash flows for such fiscal year setting comparative figures for the
preceding fiscal year, (x) in the case of the Borrower, the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and retained
earnings and the statement of cash flows for such fiscal year setting
forth comparatives for the preceding fiscal year, (y) in the case of
Caterair, the consolidated balance sheet of Caterair and its Subsidiaries
as at the end of such fiscal year and the related consolidated statements
of income and retained earnings and the statement of cash flows for such
fiscal year, setting forth comparatives for the preceding fiscal year, and
(z) also in the case of the Borrower, a statement of the combined debt of
the Borrower, Caterair and their respective Subsidiaries as at the end of
such fiscal year and the combined statements of income and the combined
statement of cash flows for the Borrower, Caterair and their respective
Subsidiaries for such fiscal year setting forth comparative figures for
the preceding fiscal year (with such combined statements to be prepared on
a basis consistent with those combined statements delivered under the
Original Credit Agreement), in each case (with respect to preceding
clauses (v), (w), (x), (y) and (z)) certified (A) in the case of the
consolidated financial statements of OFSI, Caterair Holdings, the Borrower
and Caterair, by Coopers and ▇▇▇▇▇▇▇ L.L.P. or such other independent
certified public accounting firm of recognized national standing
reasonably acceptable to the Agents, together with a report of such
accounting firm stating that in the course of its regular audit of the
consolidated financial statements of each of the Borrower and its
Subsidiaries and Caterair and its Subsidiaries, which audit was conducted
in accordance with generally accepted auditing standards, such accounting
firm obtained no knowledge of any Default or Event of Default which has
occurred and is continuing under any of Sections 9.07 through 9.09,
inclusive, or, if in the opinion of such accounting firm such a Default or
an Event of Default has occurred and is continuing, a statement as to the
nature thereof and (B) in the case of the combined statements of the
Borrower and Caterair, by an Authorized Financial Officer of the Borrower
and (ii) management's discussions and analysis of the important
operational and financial developments during such fiscal year.
(d) Management Letters. Promptly after the receipt thereof by OFSI,
Caterair Holdings, the Borrower or any Domestic Subsidiary of Caterair
Holdings or the Borrower, a copy of any "management letter" received by
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OFSI, Caterair Holdings, the Borrower or such Subsidiary from its
certified public accountants and the management's responses thereto.
(e) Budgets. No later than 120 days following the commencement of
the first day of each fiscal year of the Borrower and Caterair,
consolidated budgets for each of the Borrower and Caterair in form
satisfactory to the Agents (including budgeted statements of income and
sources and uses of cash and balance sheets) prepared by the Borrower and
Caterair respectively for each of the twelve months of such fiscal year
prepared in detail, and accompanied by the statement of an Authorized
Financial Officer of the Borrower or Caterair, as the case may be, that
the respective budget is a reasonable estimate of the period covered
thereby.
(f) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a), (b) and (c), a
certificate of an Authorized Financial Officer of OFSI, Caterair Holdings,
the Borrower or Caterair, as applicable, to the effect that, to the best
of such officer's knowledge, no Default or Event of Default has occurred
and is continuing or, if any Default or Event of Default has occurred and
is continuing, specifying the nature and extent thereof, which
certificate, if delivered with the financial statements required by
Sections 8.01(b) and (c), shall also set forth the calculations required
to establish whether OFSI and its SCIS Subsidiaries or Caterair Holdings
and its Subsidiaries, as applicable, were in compliance with the
provisions of Sections 3.03(b), 9.03(ii), (iii), (v), (vi) and (vii) (y)
and (z), 9.04(vi) and 9.07 through 9.09, inclusive, at the end of such
fiscal quarter or year, as the case may be. In addition, at the time of
the delivery of the financial statements of the Borrower provided for in
Sections 8.01(a), (b) and (c), a certificate of an Authorized Financial
Officer of the Borrower setting forth (x) the aggregate principal amount
(or the Dollar Equivalent thereof) of all Third-Party Foreign Subsidiary
Indebtedness outstanding as of the date of such financial statements and
(y) the respective Foreign Subsidiary or Foreign Subsidiaries that have
incurred such Indebtedness.
(g) Notice of Default or Litigation. Promptly, and in any event
within three Business Days after an executive officer of any Credit Party
obtains knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or an Event of Default and (ii) any litigation or
governmental investigation or proceeding pending (x) against OFSI,
Caterair Holdings or any of their respective Subsidiaries which could
reasonably be expected to materially and adversely affect the business,
operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower, the Borrower and its
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Subsidiaries taken as a whole, Caterair, Caterair and its Subsidiaries
taken as a whole or OFSI and its SCIS Subsidiaries taken as a whole, or
(y) with respect to any Document.
(h) Other Reports and Filings. Promptly, copies of all financial
information, proxy materials and other information and reports, if any,
which OFSI, Caterair Holdings, the Borrower or any Subsidiary of Caterair
Holdings or the Borrower shall file with the Securities and Exchange
Commission or any successor thereto (the "SEC") or deliver to holders of
the Senior Subordinated Notes or any other issue of its Indebtedness
pursuant to the terms of the documentation governing any such Indebtedness
(or any trustee, agent or other representative therefor).
(i) Environmental Matters. Promptly, and in any event within ten
Business Days, after an executive officer of any Credit Party obtains
knowledge thereof, notice of one or more of the following environmental
matters, unless such environmental matters could not, individually or when
aggregated with all other such environmental matters, be reasonably
expected to materially and adversely affect the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower, the Borrower and its Subsidiaries taken as a
whole, Caterair, Caterair and its Subsidiaries taken as a whole or OFSI
and its SCIS Subsidiaries taken as a whole:
(i) any pending or threatened Environmental Claim in writing
against OFSI, Caterair Holdings, the Borrower or any Subsidiary of
Caterair Holdings or the Borrower or any Real Property owned or
operated by OFSI, Caterair Holdings, the Borrower or any Subsidiary
of Caterair Holdings or the Borrower;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated by OFSI, Caterair Holdings, the Borrower
or any Subsidiary of Caterair Holdings or the Borrower that (a)
results in noncompliance by OFSI, Caterair Holdings, the Borrower or
any Subsidiary of Caterair Holdings or the Borrower with any
applicable Environmental Law or (b) could reasonably be expected to
form the basis of an Environmental Claim against OFSI, Caterair
Holdings, the Borrower or any Subsidiary of Caterair Holdings or the
Borrower or any such Real Property;
(iii) any condition or occurrence on any Real Property owned
or operated by OFSI, Caterair Holdings, the Borrower or any
Subsidiary
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of Caterair Holdings or the Borrower that could reasonably be
expected to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability by
OFSI, Caterair Holdings, the Borrower or any Subsidiary of Caterair
Holdings or the Borrower of such Real Property under any
Environmental Law; and
(iv) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any
Real Property owned or operated by OFSI, Caterair Holdings, the
Borrower or any Subsidiary of Caterair Holdings or the Borrower as
required by any Environmental Law or any governmental or other
administrative agency.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and OFSI's, Caterair Holdings', the Borrower' or such Subsidiary's
response thereto. In addition, OFSI, Caterair Holdings, the Borrower or
any Subsidiary of Caterair Holdings or the Borrower will provide the Banks
with copies of all material communications with any government or
governmental agency relating to Environmental Laws, all communications
with any Person relating to any Environmental Claim of which notice is
required to be given pursuant to this Section 8.01(i), and such detailed
reports of any such Environmental Claim as may reasonably be requested by
any Agent; provided that in any event such Persons shall deliver to each
Bank all notices received by them from any government or governmental
agency under, or pursuant to, CERCLA.
(j) Annual Meetings with Banks. The Borrower shall within 135 days
after the close of each fiscal year of the Borrower hold a meeting (at a
mutually agreeable location and time) with all of the Banks at which
meeting shall be reviewed the financial results of the previous fiscal
year and the financial condition of the Borrower and its Subsidiaries and
the annual plan and budgets presented for the current fiscal year of the
Borrower and its Subsidiaries.
(k) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to OFSI, Caterair Holdings
or any of their respective Subsidiaries as any Bank may reasonably request
in writing.
8.02 Books, Records and Inspections. Each of OFSI, Caterair Holdings
and the Borrower will, and each of Caterair Holdings and the Borrower will cause
each of their respective Subsidiaries to, keep proper books of record and
account in which
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true and correct entries in conformity with generally accepted accounting
principles and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. Each of OFSI, Caterair
Holdings and the Borrower will, and each of Caterair Holdings and the Borrower
will cause each of their respective Subsidiaries to, permit officers and
designated representatives of any Agent or any Bank to visit and inspect, during
regular business hours and under guidance of officers of OFSI, Caterair
Holdings, the Borrower or such Subsidiary, any of the properties of OFSI,
Caterair Holdings, the Borrower or such Subsidiary, and to examine the books of
account of OFSI, Caterair Holdings, the Borrower or such Subsidiary and discuss
the affairs, finances and accounts of OFSI, Caterair Holdings, the Borrower or
such Subsidiary with, and be advised as to the same by, its and their officers
and independent accountants, all at such reasonable times and intervals and to
such reasonable extent as any Agent or any Bank may reasonably request.
8.03 Maintenance of Property; Insurance. (a) Schedule IX sets forth
a true and complete listing of all insurance maintained by the Borrower,
Caterair and their respective Subsidiaries on the Restatement Effective Date.
Each of the Borrower and Caterair will, and will cause each of their respective
Subsidiaries to, (i) keep all property necessary in its business in good working
order and condition (ordinary wear and tear excepted), (ii) maintain property
insurance with financially sound and reputable insurance companies on all its
property for the lower of replacement cost or market value against such risks as
applicable per property location, (iii) maintain public liability insurance with
financially sound and reputable insurance companies in such amounts and coverage
as determined in good faith by senior management of the Borrower or Caterair to
be appropriate for the Borrower, Caterair and their respective Subsidiaries,
(iv) maintain workers' compensation insurance with financially sound and
reputable insurance companies as statutorily required by each applicable locale,
and (v) furnish to each Bank, upon written request, full information as to all
insurance carried. In addition to the requirements of the immediately preceding
sentence, the Borrower and Caterair will at all times cause insurance of the
types described in Schedule IX to be maintained (with the same scope of coverage
as that described in Schedule IX) at levels which are at least as great as the
respective amount described opposite the respective type of insurance on
Schedule IX to the extent available at commercially reasonable rates.
(b) Each of the Borrower and Caterair will, and will cause each of
its respective Domestic Subsidiaries to, at all times keep their respective
properties insured in favor of the Collateral Agent, and all policies (including
Mortgage Policies) or certificates with respect to such insurance (and any other
insurance maintained by the Borrower, Caterair or any such Domestic Subsidiary)
(i) shall be endorsed to the Collateral Agent's satisfaction for the benefit of
the Collateral Agent (including, without
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limitation, by naming the Collateral Agent as loss payee or as an additional
insured), (ii) shall state that such insurance policies shall not be cancelled
without at least 30 days' prior written notice thereof by the respective insurer
to the Collateral Agent, (iii) shall provide that the respective insurers
irrevocably waive any and all rights of subrogation with respect to the
Collateral Agent and the Secured Creditors, (iv) shall contain the standard
non-contributory mortgagee clause endorsement in favor of the Collateral Agent
with respect to hazard insurance coverage, (v) shall, except in the case of
public liability insurance and workers' compensation insurance, provide that any
losses shall be payable notwithstanding (A) any act or neglect of the Borrower,
Caterair or any such Domestic Subsidiary, (B) the occupation or use of the
properties for purposes more hazardous than those permitted by the terms of the
respective policy, (C) any foreclosure or other proceeding relating to the
insured properties or (D) any change in the title to or ownership or possession
of the insured properties and (vi) shall be deposited with the Collateral Agent.
(c) If the Borrower, Caterair or any of their respective
Subsidiaries to which this Section 8.03 applies shall fail to maintain insurance
in accordance herewith, or if the Borrower, Caterair or any such Subsidiary
shall fail to so endorse and deposit all policies or certificates with respect
thereto, the Administrative Agent and/or the Collateral Agent shall have the
right (but shall be under no obligation) to procure such insurance and the
Borrower agree to reimburse the Administrative Agent or the Collateral Agent, as
the case may be, for all costs and expenses of procuring such insurance.
8.04 Corporate Franchises. Each of OFSI, Caterair Holdings and the
Borrower will, and each of Caterair Holdings and the Borrower will cause each of
its respective Subsidiaries (other than Immaterial Subsidiaries) to, do or cause
to be done, all things necessary to preserve and keep in full force and effect
its existence and its material rights, franchises, licenses and patents;
provided, however, that nothing in this Section 8.04 shall prevent (i) the sale
or other disposal of assets by OFSI, Caterair Holdings, the Borrower or any
Subsidiary of Caterair Holdings or the Borrower to the extent not prohibited
under Section 9.02 or any other transaction permitted by Section 9.02 or (ii)
the withdrawal by OFSI, Caterair Holdings, the Borrower or any Subsidiary of
Caterair Holdings or the Borrower of its qualification as a foreign corporation
in any jurisdiction where such withdrawal could not reasonably be expected to
have a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower,
the Borrower and its Subsidiaries taken as a whole, Caterair, Caterair and its
Subsidiaries taken as a whole or OFSI and its SCIS Subsidiaries taken as a
whole.
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8.05 Compliance with Statutes, etc. Each of OFSI, Caterair Holdings
and the Borrower will comply, and each of Caterair Holdings and the Borrower
will cause each of its respective Subsidiaries to comply, with all applicable
statutes, laws, ordinances, codes, rules, regulations and orders of, and all
applicable restrictions imposed by all governmental bodies, domestic or foreign,
in respect of the conduct of its business and the ownership and operation of its
property and business, except such instances of noncompliance as could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower, the Borrower
and its Subsidiaries taken as a whole, Caterair, Caterair and its Subsidiaries
taken as a whole or OFSI and its SCIS Subsidiaries taken as a whole.
8.06 Compliance with Environmental Laws. (a) Each of OFSI, Caterair
Holdings and the Borrower will comply, and each of Caterair Holdings and the
Borrower will cause each of its respective Subsidiaries to comply, with all
Environmental Laws applicable to the ownership or use of its Real Property now
or hereafter owned or operated by OFSI, Caterair Holdings, the Borrower or any
such Subsidiary, except such instances of noncompliance as could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower, the Borrower
and its Subsidiaries taken as a whole, Caterair, Caterair and its Subsidiaries
taken as a whole or OFSI and its SCIS Subsidiaries taken as a whole, and will
promptly pay or cause to be paid all costs and expenses incurred in connection
with such compliance, and will keep or cause to be kept all such Real Property
free and clear of any Liens imposed pursuant to such Environmental Laws. None of
OFSI, Caterair Holdings, the Borrower nor any Subsidiary of Caterair Holdings or
the Borrower will generate, use, treat, store, release or dispose of, or permit
the generation, use, treatment, storage, release or disposal of Hazardous
Materials on any Real Property now or hereafter owned or operated by OFSI,
Caterair Holdings, the Borrower or any such Subsidiary, or transport or permit
the transportation of Hazardous Materials to or from any such Real Property
except for Hazardous Materials used or stored at any such Real Properties in
material compliance with all applicable Environmental Laws and used in
connection with the operation, use and maintenance of any such Real Property.
(b) At the written request of the Administrative Agent or the
Required Banks, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, OFSI, Caterair Holdings and the
Borrower will provide, at their own expense an environmental site assessment
report concerning any Real Property now or hereafter owned or operated by OFSI,
Caterair Holdings, the Borrower or any Domestic Subsidiary of Caterair Holdings
or the Borrower, prepared by an
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environmental consulting firm approved by the Administrative Agent, indicating
the presence or absence of Hazardous Materials and the potential cost of any
removal or remedial action in connection with any Hazardous Materials on such
Real Property; provided that such request may be made only if (i) the
Administrative Agent or the Required Banks reasonably believe that OFSI,
Caterair Holdings, the Borrower or any Domestic Subsidiary of Caterair Holdings
or the Borrower or any such Real Property is not in compliance with Section
8.06(a) or (ii) any notice is delivered to the Administrative Agent or any Bank
pursuant to Section 8.01(i). If any such Credit Party fails to provide the same
within 120 days after such request was made, the Administrative Agent may order
the same, and each of OFSI, Caterair Holdings, the Borrower and each Domestic
Subsidiary of Caterair Holdings and the Borrower shall grant and hereby grants,
to the extent that it is legally and contractually able to do so, to the
Administrative Agent and the Banks and their agents access to such Real Property
and specifically, to the extent that it is legally and contractually able to do
so, grants the Administrative Agent and the Banks an irrevocable non-exclusive
license, subject to the rights of tenants, to undertake such an assessment, all
at the Credit Party's expense.
8.07 ERISA. As soon as possible and, in any event, within 10 days
after OFSI, Caterair Holdings, the Borrower or any Subsidiary or ERISA Affiliate
of the Borrower or Caterair Holdings knows or has reason to know of the
occurrence of any of the following, OFSI, Caterair Holdings or the Borrower, as
applicable, will deliver to each of the Banks a certificate of its Chief
Financial Officer setting forth details as to such occurrence and the action, if
any, that such Person is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by such Person, the PBGC, a
Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred; that an accumulated funding deficiency has been
incurred or an application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period
under Section 412 of the Code with respect to a Plan; that a contribution
required to be made to a Plan or Foreign Pension Plan has not been timely made;
that a Plan has been or may be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA; that a Plan has an Unfunded Current Liability
giving rise to a lien under ERISA or the Code; that proceedings may be or have
been instituted to terminate or appoint a trustee to administer a Plan; that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; that OFSI, Caterair Holdings, the Borrower or
any Subsidiary or ERISA Affiliate of the Borrower or Caterair Holdings will or
may incur any material liability (including any indirect, contingent, or
secondary liability) to or on account of the termination of or withdrawal from a
Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975
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or 4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA; or that the
Borrower, Caterair Holdings or any Subsidiary or ERISA Affiliate of OFSI or
Caterair Holdings may incur any material increase in liability over that
existing on the Restatement Effective Date pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any employee pension benefit plan (as defined in Section 3(2)
of ERISA). At the request of the Administrative Agent, OFSI, Caterair Holdings
or the Borrower, as applicable, will deliver to the Administrative Agent a
complete copy of the annual report (Form 5500) of each Plan (including, to the
extent required, the related financial and actuarial statements and opinions and
other supporting statements, certifications, schedules and information) required
to be filed with the Internal Revenue Service. In addition to any certificates
or notices delivered to the Banks pursuant to the first sentence hereof, copies
of annual reports and any material notices received by OFSI, Caterair Holdings,
the Borrower or any Subsidiary or ERISA Affiliate of the Borrower or Caterair
Holdings with respect to any Plan or Foreign Pension Plan shall be delivered to
the Banks no later than 10 days after the date such report has been filed with
the Internal Revenue Service or such notice has been received by OFSI, Caterair
Holdings, the Borrower, the Subsidiary or the ERISA Affiliate, as applicable.
8.08 End of Fiscal Years; Fiscal Quarters. Each of the Borrower and
Caterair will cause (i) each of its, and each of its respective Domestic
Subsidiaries', fiscal years to end on December 31, and (ii) each of its, and
each of its respective Domestic Subsidiaries', fiscal quarters to end on the
last day of each March, June, September and December.
8.09 Performance of Obligations. Each of OFSI, Caterair Holdings and
the Borrower will, and each of Caterair Holdings and the Borrower will cause
each of its respective Subsidiaries to, perform all of its obligations under the
terms of each mortgage, indenture, security agreement, loan agreement, credit
agreement or any other material agreement, contract or instrument by which it is
bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower, the Borrower and its Subsidiaries taken
as a whole, Caterair, Caterair and its Subsidiaries taken as a whole or OFSI and
its SCIS Subsidiaries taken as a whole. In addition to the requirements of the
immediately preceding sentence, each of OFSI, Caterair Holdings and the Borrower
will, and each of Caterair Holdings and the Borrower will cause each of its
respective Subsidiaries to, perform all of its obligations under the terms of
each Lease Agreement, License Agreement and the Non-Compete Agreement.
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8.10 Payment of Taxes. Each of OFSI and Caterair Holdings will pay
and discharge or cause to be paid and discharged, and will cause each of its
respective Subsidiaries to pay and discharge, all material taxes, assessments
and governmental charges or levies imposed upon it or upon its income or
profits, or upon any material properties belonging to it, in each case on a
timely basis (giving effect to applicable extensions for filings), and all
material lawful claims which, if unpaid, might become a lien or charge upon any
properties of OFSI, Caterair Holdings or any of their respective Subsidiaries;
provided that neither OFSI, Caterair Holdings nor any of their respective
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with generally
accepted accounting principles.
8.11 Additional Security; Further Assurances. (a) Each of the
Borrower and Caterair will, and will cause each of its respective Wholly-Owned
Domestic Subsidiaries to, grant to the Collateral Agent security interests and
mortgages in such Real Property of such Credit Party as are not covered by the
Existing Mortgages, as may be requested from time to time by the Administrative
Agent or the Required Banks or as may be required to be granted from time to
time pursuant to the Caterair Credit Agreement. All such security interests and
mortgages shall be granted pursuant to Mortgages reasonably satisfactory in form
and substance to the Administrative Agent and shall constitute valid and
enforceable perfected Liens superior to and prior to the rights of all third
Persons and subject to no other Liens except for Permitted Liens. Such Mortgages
or instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to establish, perfect, preserve
and protect the Liens in favor of the Collateral Agent required to be granted
pursuant to such Mortgages and all taxes, fees and other charges payable in
connection therewith shall have been paid in full.
(b) Each of OFSI, Caterair Holdings and the Borrower will, and each
of Caterair Holdings and the Borrower will cause each of its respective
Wholly-Owned Domestic Subsidiaries to, at their expense, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
vouchers, invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, reports and
other assurances or instruments and take such further steps relating to the
Collateral covered by any of the Security Documents as the Collateral Agent may
reasonably require. Furthermore, each of OFSI, Caterair Holdings and the
Borrower will cause to be delivered to the Collateral Agent such opinions of
counsel, Mortgage Policies, surveys and other related documents as may be
requested by the Collateral Agent to assure itself that this Section 8.11 has
been complied with.
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(c) Each of OFSI, Caterair Holdings and the Borrower agrees that
each action required above by this Section 8.11 shall be completed as soon as
possible, but in no event later than 90 days after such action is requested to
be taken by the Administrative Agent or the Required Banks or is required to be
taken pursuant to the Caterair Credit Agreement.
(d) To the extent the Borrower, Caterair Holdings or any of their
respective Subsidiaries create, establish or acquire any Wholly-Owned Domestic
Subsidiary after the Restatement Effective Date in accordance with the other
provisions of this Agreement, each such Wholly-Owned Domestic Subsidiary shall
be required to become a party to each of the Subsidiaries Guaranty, the Security
Agreement and the General Pledge Agreement by executing a counterpart thereof or
by entering into an amendment thereto satisfactory to the Administrative Agent
and 100% of the capital stock of such new Wholly-Owned Domestic Subsidiary shall
be pledged pursuant to the General Pledge Agreement. In connection with the
foregoing, to the extent requested by the Administrative Agent or the Collateral
Agent, such Wholly-Owned Domestic Subsidiary shall be required to deliver such
relevant documentation (including opinions of counsel, UCC-1 Financing
Statements and officer's certificates) of the type described in Section 5 as the
respective Wholly-Owned Domestic Subsidiary would have had delivered if it were
a Credit Party on the Restatement Effective Date. Each of the Borrower and
Caterair Holdings agrees that each action required to be taken pursuant to this
clause (d) shall be completed contemporaneously with the creation, establishment
or acquisition of such Wholly-Owned Domestic Subsidiary. In addition to the
foregoing, all other Pledged Securities acquired after the Restatement Effective
Date by any Credit Party shall, to the extent required by the respective Pledge
Agreement, be pledged and, in the case of Certificated Pledged Securities,
delivered to the Collateral Agent for pledge pursuant to such Pledge Agreement.
8.12 Corporate Separateness. OFSI covenants and agrees that it will
take, and will cause each of its Subsidiaries to take, all such action as is
necessary to keep the operations of OFSI and its SCIS Subsidiaries separate and
apart from those of its Non-SCIS Subsidiaries including, without limitation,
ensuring that all customary formalities regarding corporate existence, including
holding regular board of directors' and shareholders' meetings and maintenance
of corporate offices and records, are followed. Neither OFSI nor any of its SCIS
Subsidiaries shall make any payment to a creditor of any Non-SCIS Subsidiary in
respect of any liability of any Non-SCIS Subsidiary except to the extent that
any such payment is made solely with the Class B Assets or the equity interests
of any Non-SCIS Subsidiary or any Dividends or earnings from, or any proceeds in
respect of, any thereof. All financial statements of OFSI and its SCIS
Subsidiaries provided to creditors shall clearly evidence the corporate
separateness of the Non-SCIS Subsidiaries from OFSI and its SCIS Subsidiaries
and
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OFSI and its SCIS Subsidiaries shall maintain their own respective payroll and
separate books of account and bank accounts from the Non-SCIS Subsidiaries. Each
of OFSI and its SCIS Subsidiaries pays, and shall continue to pay, its
respective liabilities, including all administrative expenses, from its own
separate assets, and assets of OFSI and its SCIS Subsidiaries are separately
identified and segregated from the assets of the Non-SCIS Subsidiaries. Finally,
neither OFSI nor any of its SCIS Subsidiaries shall take any action, or conduct
its affairs in a manner which is likely to result in the corporate existence of
the Non-SCIS Subsidiaries being ignored, or in the assets and liabilities of
OFSI or any of its SCIS Subsidiaries being substantively consolidated with those
of the Non-SCIS Subsidiaries in a bankruptcy, reorganization or other insolvency
proceeding.
8.13 Caterair Holdings Secured Note and Caterair Holdings Unsecured
Debentures. (a) Caterair Holdings will pay all principal and interest owing in
respect of the Caterair Holdings Secured Note solely through the interest income
earned on the Caterair Holdings Certificate of Deposit and/or the proceeds from
any sale or liquidation of the Caterair Holdings Certificate of Deposit.
(b) Caterair Holdings will pay all interest on the Caterair Holdings
Unsecured Debentures solely through the issuance of additional debentures
substantially in the form of the Caterair Holdings Unsecured Debentures rather
than in cash.
8.14 Capital Contributions. OFSI and Caterair Holdings will
immediately contribute any cash proceeds received by it as a result of any event
described in Section 3.03(b), (c), or (d) to the capital of the Borrower or
Caterair, as the case may be, and the Borrower or Caterair shall use such
proceeds as (and to the extent) provided in such Sections.
8.15 13% Senior Subordinated Note Tender Offer; Escrows. (a) On the
13% Senior Subordinated Note Tender Offer Expiration Date or within one Business
Day thereafter, the Borrower will pay for all 13% Senior Subordinated Notes that
have been tendered (and not withdrawn) pursuant to the 13% Senior Subordinated
Note Tender Offer, and all such 13% Senior Subordinated Notes shall be duly
cancelled.
(b) If on September 30, 1997 more than $25,000,000 in aggregate
principal amount of 13% Senior Subordinated Notes remain outstanding, the
Borrower shall enter into an escrow agreement reasonably satisfactory to the
Administrative Agent (the "Bank Escrow Agreement") pursuant to which the
Borrower shall deposit cash with the Collateral Agent in an amount equal to the
aggregate principal amount of the 13% Senior Subordinated Notes that remain
outstanding, which cash shall be held in the escrow account referred to in the
Bank Escrow Agreement as security for the
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Obligations hereunder and for the obligations under the Caterair Credit
Agreement, although (i) such cash shall upon request of the Borrower be released
from such escrow account from time to time to repurchase or redeem outstanding
13% Senior Subordinated Notes so long as no Default or Event of Default then
exists and (ii) such cash shall upon request of the Borrower be released from
such escrow account at such time as the aggregate principal amount of
outstanding 13% Senior Subordinated Notes is $25,000,000 or less so long as no
Default or Event of Default then exists.
(c) If on September 30, 1997, $25,000,000 or less of 13% Senior
Subordinated Notes remain outstanding, the Borrower shall have the option, in
its sole discretion, to enter into the Bank Escrow Agreement and deposit cash up
to an amount equal to the aggregate principal amount of 13% Senior Subordinated
Notes that remain outstanding, which cash shall be subject to the same security
and release arrangements as set forth in clause (b) of this Section 8.15.
8.16 Termination of Existing Interest Rate Protection Agreements.
Within 14 days following the Restatement Effective Date, the Borrower shall
unwind or terminate the existing Interest Rate Protection Agreements set forth
on Schedule VII.
SECTION 9. Negative Covenants. Each of OFSI, Caterair Holdings, the
Borrower and Caterair covenants and agrees that on and after the Restatement
Effective Date and until the Total Revolving Loan Commitment and all Letters of
Credit have terminated and the Loans, Notes and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder and thereunder, are
paid in full (other than indemnity and similar obligations that are not then due
and payable):
9.01 Liens. Each of OFSI, Caterair Holdings and the Borrower will
not, and each of Caterair Holdings and the Borrower will not permit any of its
respective Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon or with respect to any property or assets (real or personal, tangible or
intangible) of OFSI, Caterair Holdings, the Borrower or any Subsidiary of
Caterair Holdings or the Borrower, whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse to OFSI, Caterair Holdings, the Borrower or
any Subsidiary of Caterair Holdings or the Borrower), or assign any right to
receive income or permit the filing of any financing statement under the UCC or
any other similar notice of Lien under any similar recording or notice statute;
provided that the provisions of this Section 9.01 shall not prevent the
creation, incurrence, assumption or existence of the following (Liens described
below are herein referred to as "Permitted Liens"):
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(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with generally accepted accounting principles;
(ii) Liens in respect of property or assets of OFSI, Caterair
Holdings, the Borrower or any Subsidiary of Caterair Holdings or the
Borrower imposed by law, which were incurred in the ordinary course of
business and do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the property or
assets of the Borrower and its Subsidiaries taken as a whole or Caterair
and its Subsidiaries taken as a whole or materially impair the operation
of the business of the Borrower and its Subsidiaries taken as a whole or
Caterair and its Subsidiaries taken as a whole or (y) which are being
contested in good faith by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the property or assets
subject to any such Lien;
(iii) Liens in existence on the Restatement Effective Date which are
of the type described in Schedule X (including, without limitation, the
Liens created pursuant to Caterair Holdings CD Pledge Agreement and the
Subordinated Intercompany Security Agreement);
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Credit Documents;
(vi) leases or subleases granted by the Borrower, Caterair or any of
their respective Subsidiaries to other Persons in the ordinary course of
business not materially interfering with the conduct of the business of
the Borrower and its Subsidiaries taken as a whole or Caterair and its
Subsidiaries taken as a whole or materially detracting from the value of
the relative assets of the Borrower and its Subsidiaries taken as a whole
or Caterair and its Subsidiaries taken as a whole or Caterair and its
Subsidiaries taken as a whole;
(vii) Liens placed upon assets subject to Capitalized Lease
Obligations, provided that (x) the aggregate principal amount of such
Capitalized Lease Obligations outstanding at any one time, when added to
the aggregate principal amount of all purchase money Indebtedness
outstanding at such time and secured
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by Liens permitted by clause (viii) of this Section 9.01, shall not exceed
the sum of (1) that aggregate amount permitted by Section 9.04(vi) plus
(2) that aggregate amount of Capitalized Lease Obligations and purchase
money Indebtedness outstanding on the Restatement Effective Date, (y) such
Liens only serve to secure the payment of Indebtedness arising under such
Capitalized Lease Obligation and (z) the Lien encumbering the asset giving
rise to the Capitalized Lease Obligation does not encumber any other asset
of OFSI, Caterair Holdings, the Borrower or any Subsidiary of Caterair
Holdings or the Borrower;
(viii) Liens placed upon equipment or machinery used in the ordinary
course of business by the Borrower, Caterair or any of their respective
Subsidiaries at the time of acquisition thereof by the Borrower, Caterair
or any such Subsidiary or within 90 days thereafter to secure Indebtedness
incurred to pay all or a portion of the purchase price thereof, provided
that (x) the aggregate outstanding principal amount of all purchase money
Indebtedness secured by Liens permitted by this clause (viii) outstanding
at any one time, when added to the aggregate principal amount of all
Capitalized Lease Obligations outstanding at such time and incurred
pursuant to clause (vii) of this Section 9.01, does not exceed the sum of
(1) that aggregate amount permitted by Section 9.04(vi) plus (2) that
aggregate amount of purchase money Indebtedness and Capitalized Lease
Obligations outstanding on the Restatement Effective Date and (y) in all
events, the Lien encumbering the equipment or machinery so acquired does
not encumber any other asset of OFSI, Caterair Holdings, the Borrower or
any Subsidiary of Caterair Holdings or the Borrower;
(ix) Liens (other than Liens imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security or
to secure the performance of tenders, statutory obligations, surety bonds,
bids, government contracts, performance and returns of money bonds and
other similar obligations (exclusive of obligations in respect of the
payment for borrowed money);
(x) easements, rights-of-way, restrictions, encroachments and other
similar charges or encumbrances, and minor title deficiencies, in each
case not securing Indebtedness and not materially interfering with the
conduct of the business of OFSI, Caterair Holdings, the Borrower or any
Subsidiary of Caterair Holdings or the Borrower;
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(xi) Liens arising from precautionary UCC financing statement
filings regarding operating leases, consignments and similar arrangements
entered into by OFSI, Caterair Holdings, the Borrower or any Subsidiary of
Caterair Holdings or the Borrower in the ordinary course of business;
(xii) judgment Liens not giving rise to an Event of Default under
Section 10.09;
(xiii) statutory and common law landlords' liens under leases to
which OFSI, Caterair Holdings, the Borrower or any Subsidiary of Caterair
Holdings or the Borrower is a party;
(xiv) Liens placed upon the assets of any Foreign Subsidiary to
secure the Third-Party Foreign Subsidiary Indebtedness incurred by such
Foreign Subsidiary;
(xv) Liens created by OFSI on the Class B Assets or on the equity
interests of any Non-SCIS Subsidiary so long as there is no recourse to
OFSI in respect of any Indebtedness or other obligations secured by such
Liens other than solely against the Class B Assets or the equity interests
of such Non-SCIS Subsidiary or any Dividends or earnings from, or any
proceeds in respect of, any thereof; and
(xvi) Liens that are deemed to exist in favor of each trustee under
the Senior Subordinated Notes Indentures pursuant to Section 7.07 thereof
so long as at no time shall there be any property or assets of OFSI, the
Borrower, Caterair Holdings or any of their respective Subsidiaries on
deposit with such trustees to secure any amounts owing to such trustees
pursuant to such Section.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. Each of
OFSI, Caterair Holdings and the Borrower will not, and each of Caterair Holdings
and the Borrower will not permit any of its respective Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets, or enter into any sale-leaseback transactions, or purchase or otherwise
acquire (in one or a series of related transactions) any part of the property or
assets (other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) of any Person, except that:
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(i) Capital Expenditures shall be permitted to the extent not in
violation of Section 9.07;
(ii) Investments may be made to the extent permitted by Section
9.05;
(iii) sales of inventory in the ordinary course of business may be
made;
(iv) each of OFSI, Caterair Holdings, the Borrower and each
Subsidiary of Caterair Holdings and the Borrower may lease (as lessee)
real or personal property so long as any such lease does not create a
Capitalized Lease Obligation (other than as permitted under Section 9.04),
provided that, in any event, Sky Chefs, CII and Caterair may enter into
the Lease Agreements;
(v) sales and other dispositions in the ordinary course of business
of equipment or materials which, in the reasonable judgment of such
Person, are obsolete, worn out or otherwise no longer useful in the
conduct of such Person's business shall be permitted;
(vi) in addition to sales and dispositions permitted pursuant to
clause (v) of this Section 9.02, sales and other dispositions in the
ordinary course of business of equipment and materials shall be permitted
so long as the Net Sale Proceeds from all such sales shall not exceed
$5,000,000 in any fiscal year of the Borrower;
(vii) sales and other dispositions of other assets shall be
permitted so long as (x) all such sales and other dispositions are at fair
market value (as determined in good faith by senior management of the
Person selling or disposing of such assets) and the proceeds thereof shall
consist of at least 75% in cash and are received at the closing of such
sale or other disposition and (y) the proceeds from all such sales and
other dispositions do not exceed $15,000,000 in any fiscal year of the
Borrower or $50,000,000 in the aggregate, it being understood that in no
event shall the capital stock of any Guarantor be sold or otherwise
disposed of pursuant to this clause (vii) (other than any sale or
disposition in full of the capital stock of a Guarantor that is an
Immaterial Subsidiary);
(viii) Sky Chefs, CII and Caterair may enter into the License
Agreements;
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(ix) Sky Chefs and CII may exercise the Purchase Option in full or
in part so long as (i) in the case of any partial exercise, the Borrower
shall have demonstrated to the satisfaction of the Agents that the sum of
(1) the present value of the lease payments under the remaining Lease
Agreements (assuming an interest rate of 9% per annum) plus (2) the
present value of the license payments under the remaining License
Agreements (assuming an interest rate of 9% per annum) plus (3) the fair
value (determined in accordance with the terms of the Lease Agreements and
the License Agreements) of the remaining Leased Assets and Licensed Assets
as at the end of the respective terms of the Lease Agreements and License
Agreements plus (4) the present value of the remaining non-compete
payments to be paid pursuant to the Non-Compete Agreement (assuming an
interest rate of 9%) are sufficient to repay in full the then remaining
outstanding loans under the Caterair Credit Agreement (after giving effect
to any repayment thereof with the proceeds of such exercise), but
excluding any such loans to the extent that same are assumed by the
Borrower in accordance with the terms of the Caterair Credit Agreement,
and (ii) in the case of a full exercise (whether through successive
partial exercises or otherwise), all then outstanding loans under the
Caterair Credit Agreement and all accrued and unpaid interest with respect
to the foregoing obligations are repaid in full except to the extent that
such outstanding loans (and accrued and unpaid interest thereon) have been
assumed by the Borrower in accordance with the terms of the Caterair
Credit Agreement;
(x) sales and other dispositions of Flight Kitchens by the Borrower,
Caterair or any of their respective Subsidiaries shall be permitted to the
extent that the Board of Directors of the Borrower has determined that
either (A) such Flight Kitchens are redundant by reason of the operations
of the Borrower, Caterair and their respective Wholly-Owned Subsidiaries,
it being understood that such redundant Flight Kitchens shall be limited
to Flight Kitchens existing on the Restatement Effective Date and with
respect to which the Borrower, Caterair and their respective Subsidiaries
have more than one Flight Kitchen serving the same airport and that such
Persons shall still be able to sufficiently cover the business at such
airport from the non-redundant Flight Kitchen or Kitchens or (B) such
Flight Kitchens have been non-operating for at least three months so long
as, in the case of a sale or other disposition of a redundant Flight
Kitchen, (x) all such sales and other dispositions are at fair market
value (as determined in good faith by the Board of Directors of the
Borrower) and the proceeds thereof shall consist of at least 75% in cash
and are received at the time of the closing of such sale or other
disposition and (y) the aggregate amount of proceeds from all such sales
and other dispositions does not exceed $20,000,000;
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(xi) OFSI may sell or otherwise dispose of the Class B Assets or the
equity interests of any Non-SCIS Subsidiary or any Dividends or earnings
from, or any proceeds in respect of, any thereof;
(xii) any Subsidiary of the Borrower or Caterair may be liquidated
so long as the assets of such Subsidiary are distributed to the Borrower,
Caterair or any of their respective Wholly-Owned Domestic Subsidiaries, as
the case may be (provided, that in the case of a liquidation of a
non-Wholly-Owned Subsidiary, the assets of such Subsidiary may be
distributed to its shareholders generally so long as the Borrower,
Caterair or its respective Subsidiary which owns the equity interest or
interests in the Subsidiary being liquidated receives at least its
proportionate share of the assets being distributed (based upon its
relative holdings of the equity interests in the Subsidiary being
liquidated and taking into account the relative preferences, if any, of
the various classes of equity interest in such Subsidiary)), provided that
in the case of a liquidation of a Foreign Subsidiary, the assets of such
Foreign Subsidiary may also be distributed to a Wholly-Owned Foreign
Subsidiary of the Borrower or Caterair;
(xiii) the Borrower and its Subsidiaries may acquire all or
substantially all of the business of, or an operating division or a
business unit of, any Person so long as the aggregate amount expended
pursuant to this clause (xiii) in any fiscal year of the Borrower,
together with the aggregate amount of Designated Investments and
Designated Guaranties made during such fiscal year, does not exceed the
Permitted Amount for such fiscal year;
(xiv) the Borrower, Caterair and their respective Wholly-Owned
Subsidiaries may acquire all or substantially all of the business of, or
an operating division or a business unit of, any Person with the Net Sale
Proceeds received from any Asset Sale to the extent that such Net Sale
Proceeds are not required to be applied as provided in Section 3.03(b) and
to the extent such Net Sale Proceeds are not otherwise used to make
Investments pursuant to Section 9.05(xvii) or Capital Expenditures
pursuant to Section 9.07(d);
(xv) at any time on or after September 1, 2000, Caterair Australia
Pty Limited may sell its equity interest in Caterair Airport Services Pty
Limited to Qantas Flight Caterair Holdings Limited pursuant to the
exercise by Qantas Flight Caterair Holdings Limited of the call options
respectively described in Clauses 19A, 19B and 19C of the Restated
Shareholders Deed made on December 18, 1996, among Caterair Airport
Services Pty Limited, Caterair Australia Pty Limited, Caterair, CII, OFSI,
Qantas Airways Limited and Qantas Flight Catering Holdings Limited, so
long as the proceeds of each such sale
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shall consist solely of cash and the purchase price shall be determined on
the basis set forth in such Restated Shareholders Deed;
(xvi) any Domestic Subsidiary of the Borrower may merge or
consolidate with and into any Wholly-Owned Domestic Subsidiary of the
Borrower so long as (i) in the case of any merger or consolidation
involving a Subsidiary Guarantor, such Subsidiary Guarantor is the
surviving corporation of such merger or consolidation, (ii) in addition to
the requirements of preceding clause (i), a Wholly-Owned Subsidiary of the
Borrower is the surviving corporation of such merger or consolidation and
(iii) the security interests, if any, granted to the Collateral Agent for
the benefit of the Secured Creditors pursuant to the Security Documents in
the assets of such Domestic Subsidiary shall remain in full force and
effect and perfected (to at least the same extent as in effect immediately
prior to such merger or consolidation);
(xvii) any Subsidiary Guarantor may transfer, lease or license
assets to any other Subsidiary Guarantor that is a Subsidiary of SCIS, and
Caterair may transfer, lease or license assets to any Subsidiary Guarantor
that is a Subsidiary of SCIS, in each case so long as the security
interests granted to the Collateral Agent for the benefit of the Secured
Creditors pursuant to the Security Document in the assets so transferred,
leased or licensed shall remain in full force and effect and perfected (to
at least the same extent as in effect immediately prior to such transfer,
lease or license);
(xviii) any Foreign Subsidiary of the Borrower may merge or
consolidate with and into any Wholly-Owned Foreign Subsidiary of the
Borrower so long as such Wholly-Owned Foreign Subsidiary is the surviving
corporation of such merger or consolidation;
(xix) any Foreign Subsidiary of the Borrower may transfer, lease or
license assets to any Wholly-Owned Domestic Subsidiary of the Borrower or
to any Wholly-Owned Foreign Subsidiary of the Borrower;
(xx) the Borrower, Caterair and their respective Subsidiaries may
lease or sublease to other Persons any redundant Flight Kitchens (as
determined in clause (x) above in this Section 9.02) or any non-operating
Flight Kitchen so long as such lease or sublease does not materially
interfere with the conduct of business of the Borrower, Caterair or any
such Subsidiary; and
(xxi) the Borrower and its Subsidiaries shall have the right to sell
up to a 51% equity interest in the Foreign Subsidiary or Foreign
Subsidiaries (or the
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foreign holding company of such Foreign Subsidiary or Foreign
Subsidiaries) that own the European Flight Kitchens of Caterair that were
purchased pursuant to the transactions contemplated by the Master
Agreement and up to 51% of the equity interest in Caterair Portugal that
is owned by the Credit Parties, in each case to the Lufthansa Companies so
long as (i) such sale is at fair market value (as determined in good faith
by the Board of Directors of the Borrower), (ii) all of the proceeds
thereof shall consist of cash, (iii) the Borrower shall be in pro forma
compliance with the financial covenants set forth in Sections 9.08 and
9.09 for the Test Period then most recently ended, with such financial
covenants to be calculated on a pro forma basis as if such sale (and the
application of the Net Sale Proceeds therefrom) had occurred on the first
day of such Test Period, and (iv) at least 15 Business Days prior to the
consummation of such sale, the Borrower shall have delivered to each of
the Banks a certificate of an Authorized Financial Officer of the Borrower
setting forth in reasonable detail the pro forma calculations required to
establish compliance with preceding clause (iii) (with such pro forma
calculations to be made on a basis reasonably satisfactory to the
Co-Arrangers and consistent with Regulation S-X under the Securities Act)
(it being understood and agreed that the Borrower and the Lufthansa
Companies may structure the sale described above in this Section 9.02(xxi)
through the creation of a new foreign holding company in which the
Borrower would own (directly and/or indirectly) at least 49% of the equity
interest and the Lufthansa Companies would own the remaining equity
interest, with the Lufthansa Companies' contribution thereto to be in the
form of cash and the Borrower's contribution thereto to be in the form of
the equity interest or interests in the Foreign Subsidiary or Foreign
Subsidiaries (or the foreign holding company of such Foreign Subsidiary or
Foreign Subsidiaries) that own such European Flight Kitchens).
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale of any Collateral, or any Collateral is sold or otherwise
disposed of as permitted by this Section 9.02, such Collateral shall be sold or
otherwise disposed of free and clear of the Liens created by the Security
Documents, and the Administrative Agent and Collateral Agent shall be authorized
to take any actions as they deem appropriate in order to effect the release of
the respective Collateral from the Liens created by the respective Security
Documents.
9.03 Dividends, etc. (a) Each of OFSI, Caterair Holdings and the
Borrower will not, and each of Caterair Holdings and the Borrower will not
permit any of their respective Subsidiaries to, authorize, declare or pay any
Dividends with respect to OFSI, Caterair Holdings, the Borrower or any
Subsidiary of Caterair Holdings or the Borrower, except that:
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(i) any Subsidiary of the Borrower or Caterair (x) may pay
Dividends to the Borrower, Caterair or any Wholly-Owned Subsidiary of the
Borrower or Caterair, as the case may be, and (y) if such Subsidiary is
not a Wholly-Owned Subsidiary, may pay cash Dividends (or dividends in
kind to the extent permitted by Section 9.12(b)(ii)) to its shareholders
generally so long as the Borrower, Caterair or their respective Subsidiary
which owns the equity interest or interests in the Subsidiary paying such
Dividends receives at least its proportionate share thereof (based upon
its relative holdings of equity interests in the Subsidiary paying such
Dividends and taking into account the relative preferences, if any, of the
various classes of equity interests in such Subsidiary);
(ii) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof), the Borrower
may pay cash Dividends to OFSI to enable OFSI to pay (and OFSI may pay) a
cash Dividend to any of the Lufthansa Companies, in an aggregate amount
not to exceed $2,500,000 in any fiscal year of the Borrower, provided,
that any portion of such amount that is not paid as a Dividend in any
fiscal year may be carried forward and paid to any of the Lufthansa
Companies as a Dividend in any subsequent fiscal year of the Borrower;
(iii) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof), the Borrower
may pay cash Dividends to OFSI to enable OFSI to pay (and OFSI may pay)
cash Dividends to stockholders of OFSI other than any of the Lufthansa
Companies, so long as the amount of such Dividends paid in any fiscal year
of the Borrower shall not exceed $6,000,000, provided, that any portion of
such amount that is not paid as a Dividend in any fiscal year may be
carried forward and paid as a Dividend in any subsequent fiscal year of
the Borrower;
(iv) the Borrower may pay cash Dividends to OFSI in an amount
sufficient to enable OFSI to (x) pay franchise taxes and other fees and
expenses necessary to maintain its corporate existence, (y) pay reasonable
fees to its directors and (z) perform accounting, legal, corporate
reporting and administrative functions in the ordinary course of business,
other than those functions which are related exclusively to OFSI's
investments in Persons other than the Borrower and its Subsidiaries;
(v) so long as there shall exist no Default under Section 10.01 or
10.05 or Event of Default (both before and after giving effect to the
payment thereof), the Borrower may pay cash Dividends to OFSI in an
aggregate amount not to exceed $6,000,000 in any 12 month period the
proceeds of which are
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used by OFSI to (and OFSI may, whether or not any such Default or Event of
Default exists) repurchase outstanding shares of OFSI's common stock held
by current or former employees or directors of the Borrower or any of its
Subsidiaries (A) following the death, disability or termination of
employment of such person or (B) pursuant to one or more written plans
approved by the Board of Directors of OFSI;
(vi) the Borrower may pay cash Dividends to OFSI the proceeds of
which are used by OFSI to fund payments under a plan implemented to
compensate management of the Borrower and its Subsidiaries based on the
value of OFSI's common stock;
(vii) Caterair may pay cash Dividends to Caterair Holdings in an
amount sufficient to enable Caterair Holdings to (x) pay franchise taxes
and other fees and expenses necessary to maintain its corporate existence,
(y) pay reasonable fees to its directors and (z) perform accounting,
legal, corporate reporting and administrative functions in the ordinary
course of business, provided that the amount of Dividends paid pursuant to
preceding clauses (y) and (z) shall not exceed $200,000 in the aggregate
in any fiscal year of Caterair; and
(viii) OFSI may pay Dividends consisting of, or with the proceeds
received from the sale or other disposition of, or with the earnings or
Dividends received from, the Class B Assets or the equity interests of any
Non-SCIS Subsidiary.
(b) Except to the extent expressly permitted by this Agreement,
neither Caterair Holdings nor Caterair shall (i) make (or give any notice in
respect thereof) any voluntary or mandatory payment, purchase, acquisition or
redemption, whether by the making of any payments of the principal, interest or
otherwise, with respect to any loan, advance or other extension of credit made
to Caterair Holdings or Caterair, or in respect of any Indebtedness or other
obligation of Caterair Holdings or Caterair or (ii) pay any management fees,
consulting fees or any other fees or expenses pursuant to any management
agreement, consulting agreement or any other agreement other than to the
Borrower or any of its Wholly-Owned Subsidiaries. In addition, notwithstanding
anything to the contrary contained in this Agreement, Caterair may not at any
time pay any Dividends or make any advances to Caterair Holdings the proceeds of
which are to be used to make payments (whether for principal, interest or
otherwise) in respect of the Caterair Holdings Unsecured Debentures.
9.04 Indebtedness. Each of OFSI, Caterair Holdings and the Borrower
will not, and each of Caterair Holdings and the Borrower will not permit any of
its
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respective Subsidiaries to, contract, create, incur, assume or suffer to exist
any Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Indebtedness of the Borrower, Caterair and the Subsidiary
Guarantors pursuant to (x) the 13% Senior Subordinated Notes and the other
13% Senior Subordinated Note Documents in an aggregate principal amount
equal to $125,000,000 (less the aggregate principal amount of all
repayments of principal thereof effected after the Restatement Effective
Date (including pursuant to the 13% Senior Subordinated Note Tender
Offer)) and (y) the 9-1/4% Senior Subordinated Notes and the other 9-1/4%
Senior Subordinated Note Documents in an aggregate principal amount equal
to $300,000,000 (less the aggregate principal amount of all repayments of
principal thereof effected after the Restatement Effective Date);
(iii) Existing Indebtedness shall be permitted to the extent the
same is listed on Schedule VII;
(iv) accrued expenses incurred in the ordinary course of business;
(v) Indebtedness under Interest Rate Protection Agreements entered
into with respect to Indebtedness otherwise permitted under this Section
9.04;
(vi) in addition to any purchase money Indebtedness and Capitalized
Lease Obligations permitted under clauses (iii) and (xii) of this Section
9.04, purchase money Indebtedness of the Borrower, Caterair or any of
their respective Subsidiaries subject to Liens permitted under Section
9.01(viii) or arising under Capitalized Lease Obligations permitted under
Section 9.01(vii) so long as (x) the aggregate outstanding principal
amount of such purchase money Indebtedness and Capitalized Lease
Obligations does not at any time exceed $10,000,000 and (y) in the case of
any Capitalized Lease Obligations incurred pursuant to this clause (vi),
the incurrence thereof is permitted under Section 9.07;
(vii) intercompany Indebtedness by and among the Borrower, Caterair
and their respective Subsidiaries to the extent permitted by Sections
9.05(vii), (viii), (ix), (xvi) and (xvii);
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(viii) Indebtedness of the Borrower or any of its Subsidiaries under
Other Hedging Agreements providing protection against fluctuations in
currency prices in connection with the Borrower' or any of its
Subsidiaries' ordinary business operations so long as management of the
Borrower or such Subsidiary has determined that the entering into of such
Other Hedging Agreements are bona fide hedging activities (and are not for
speculative purposes) relating to the ordinary business operations of the
Borrower or such Subsidiary;
(ix) Indebtedness of Caterair Holdings under the Caterair Holdings
Secured Note in an aggregate principal amount of $236,200,000 (less the
aggregate principal amount of all repayments of principal thereof effected
after the Restatement Effective Date) but only so long as the Caterair
Holdings Secured Note (and all interest thereon) is fully collateralized
by the Caterair Holdings Certificate of Deposit;
(x) Indebtedness of Caterair Holdings under the Caterair Holdings
Unsecured Debentures in an aggregate principal amount equal to the sum of
(1) $43,800,000 plus (2) the aggregate principal amount of Caterair
Holdings Unsecured Debentures of the type described in, and issued as
permitted by, Section 8.14(b) of the Original Credit Agreement and 8.13(b)
of this Agreement (less the aggregate principal amount of all repayments
of principal thereof effected after the Restatement Effective Date);
(xi) Indebtedness of Foreign Subsidiaries of the Borrower under
lines of credit extended by third Persons to such Foreign Subsidiaries the
proceeds of which are used by such Foreign Subsidiaries for their working
capital and general corporate purposes, so long as immediately following
the incurrence thereof the Dollar Equivalent of the aggregate outstanding
principal amount of all such Indebtedness shall not exceed the sum of (1)
$35,000,000 at any time thereafter plus, in either case, (2) that
aggregate principal amount which, when added to the sum of (I) the
aggregate principal amount of all Revolving Loans then outstanding, (II)
the aggregate principal amount of all Swingline Loans then outstanding and
(III) the aggregate amount of all Letter of Credit Outstandings at such
time (other than Letter of Credit Outstandings in respect of Letters of
Credit issued in support of any Third-Party Foreign Subsidiary
Indebtedness), equals the Total Revolving Loan Commitment then in effect
(any Indebtedness incurred pursuant to this clause (xi), together with any
similar Indebtedness incurred by Foreign Subsidiaries of the Borrower
pursuant to clause (iii) of this Section 9.04, is referred to as the
"Third-Party Foreign Subsidiary Indebtedness");
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(xii) Indebtedness of the Borrower, Caterair or any of their
respective Subsidiaries constituting Capitalized Lease Obligations and/or
purchase money Indebtedness to the extent that such Indebtedness
refinances, replaces, renews, restates, refunds, defers, extends,
substitutes, supplements or reissues any existing or future Capitalized
Lease Obligations or purchase money Indebtedness, provided that the
aggregate amount of Capitalized Lease Obligations and purchase money
Indebtedness incurred and outstanding at any time pursuant to clause (iii)
of this Section 9.04 and this clause (xii) does not exceed the amount of
Capitalized Lease Obligations and purchase money Indebtedness outstanding
on the Restatement Effective Date as shown on Schedule VII;
(xiii) guaranties by the Borrower and its Subsidiaries of
Indebtedness and other obligations of the Borrower and its Subsidiaries to
the extent that such Indebtedness and other obligations are otherwise
permitted under this Agreement, provided that the aggregate amount of such
guaranties given (and the amount of payments made thereunder) by the
Borrower and its Wholly-Owned Domestic Subsidiaries at any time in support
of Indebtedness and other obligations of non-Wholly-Owned Subsidiaries and
Wholly-Owned Foreign Subsidiaries of the Borrower shall not exceed in any
fiscal year of the Borrower, when added to the amount of Designated
Acquisitions and Designated Investments made during such fiscal year, the
Permitted Amount for such fiscal year;
(xiv) Indebtedness of OFSI that is secured solely by the Class B
Assets and so long as there is no recourse against OFSI in respect of such
Indebtedness other than against the Class B Assets or its equity interests
in the Non-SCIS Subsidiaries and (in each case) the proceeds thereof; and
(xv) Indebtedness of the Credit Parties under the Caterair Credit
Agreement and the other Caterair Credit Documents in an aggregate
principal amount not to exceed $250,000,000 (less the aggregate principal
amount of all repayments of principal thereof effected after the
Restatement Effective Date.
9.05 Advances, Investments and Loans. Each of OFSI, Caterair Holdings and
the Borrower will not, and each of Caterair Holdings and the Borrower will not
permit any of its respective Subsidiaries to, directly or indirectly, lend money
or credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a
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futures contract, or hold any cash or Cash Equivalents (each of the foregoing an
"Investment" and, collectively, Investments"), except that the following shall
be permitted:
(i) the Borrower, Caterair and their respective Subsidiaries may
acquire and hold cash and Cash Equivalents, and Caterair Holdings may hold
the Caterair Holdings Certificate of Deposit and the interest income
earned thereon so long as the same is subject to the pledge arrangements
under the Caterair Holdings CD Pledge Agreement;
(ii) the Borrower, Caterair and their respective Subsidiaries may
acquire and hold accounts receivables owing to any of them, if created or
acquired in the ordinary of business and payable or dischargeable in
accordance with customary terms;
(iii) in addition to the loans and advances permitted under clause
(xii) of this Section 9.05, the Borrower and its Subsidiaries may make
loans and advances in the ordinary course of business to employees of the
Borrower and its Subsidiaries so long as the aggregate principal amount
thereof at any time outstanding shall not exceed $3,000,000 (determined
without regard to any write-downs or write-offs of such loans and
advances);
(iv) the Borrower may enter into Interest Rate Protection Agreements
to the extent permitted by Section 9.04(v);
(v) the Borrower and its Subsidiaries may enter into Other Hedging
Agreements to the extent permitted by Section 9.04(viii);
(vi) OFSI, Caterair Holdings and their respective Subsidiaries may
permit to remain outstanding the Investments made on or prior to the
Restatement Effective Date to the extent the same are listed on Schedule
XI (the "Existing Investments") (provided that any additional Investments
made with respect thereto shall be permitted only if independently
justified under the other provisions of this Section 9.05);
(vii) the Borrower and its Wholly-Owned Subsidiaries may make
intercompany loans to one another, and any non-Wholly-Owned Subsidiary of
the Borrower may make intercompany loans to the Borrower or any other
Subsidiary of the Borrower, provided that (w) all such intercompany loans
made by the Borrower or any of its Wholly-Owned Domestic Subsidiaries are
evidenced by an intercompany promissory note in the form of Exhibit K
(each
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an "Intercompany Note"), (x) each such Intercompany Note is pledged by the
Borrower or such Wholly-Owned Domestic Subsidiary to the Collateral Agent
pursuant to the General Pledge Agreement, (y) the aggregate amount of all
such intercompany loans made by the Borrower or any of its Wholly-Owned
Domestic Subsidiaries to Wholly-Owned Foreign Subsidiaries in any fiscal
year of the Borrower shall not exceed, when added to the aggregate amount
of Designated Acquisitions, Designated Guaranties and other Designated
Investments made during such fiscal year, the Permitted Amount for such
fiscal year and (z) any such intercompany loans made to the Borrower or
any Wholly-Owned Domestic Subsidiary of the Borrower by a non-Wholly-Owned
Subsidiary of the Borrower shall contain the subordination provisions set
forth on Exhibit M;
(viii) prior to the date on which all outstanding loans under the
Caterair Credit Agreement (and all accrued interest thereon) have been
repaid in full (or assumed by the Borrower) and the SCIS/Caterair Loan
(and all accrued interest thereon) has been repaid in full, the Borrower
and its Wholly-Owned Domestic Subsidiaries may make loans to Caterair
provided that (x) all such loans are evidenced by an Intercompany Note,
(y) each such Intercompany Note is pledged by the Borrower or such
Wholly-Owned Domestic Subsidiary pursuant to the General Pledge Agreement
and (z) Caterair promptly uses the proceeds of such loan to make payments
in respect of obligations then due and owing and/or for working capital
purposes;
(ix) the Borrower may use the proceeds of Loans to make (either
directly or through one or more of its Wholly-Owned Domestic Subsidiaries)
cash equity contributions to IFSC so long as (x) IFSC promptly uses such
proceeds to make intercompany loans to Wholly-Owned Foreign Subsidiaries
of the Borrower and (y) the aggregate amount of all cash equity
contributions made to IFSC after the Restatement Effective Date pursuant
to this clause (ix) does not exceed $36,000,000;
(x) Investments received by (x) the Borrower, Caterair or any of
their respective Subsidiaries, as the case may be, as consideration for
sales or other disposition of assets in accordance with Sections 9.02(v),
(vii) and (x) or (y) OFSI as consideration for sales or other disposition
of assets in accordance with Section 9.02(xi);
(xi) loans and advances by the Borrower and its Subsidiaries to
their respective employees the proceeds of which are immediately used to
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purchase common stock of OFSI and which proceeds are immediately
thereafter contributed by OFSI to the Borrower as a capital contribution;
(xii) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such trade creditors or customers;
(xiii) OFSI may make Investments in Non-SCIS Subsidiaries and other
third Persons with the proceeds of, or with Dividends or earnings received
from, the Class B Assets or Non-SCIS Subsidiaries;
(xiv) OFSI, Caterair Holdings and their respective Subsidiaries may
hold the capital stock of or other equity interests in their Subsidiaries;
(xv) the Borrower and its Wholly-Owned Subsidiaries may make cash
equity contributions to their respective Wholly-Owned Subsidiaries,
provided that the aggregate amount of all such cash equity contributions
made by the Borrower or any of its Wholly-Owned Domestic Subsidiaries to
Wholly-Owned Foreign Subsidiaries in any fiscal year of the Borrower shall
not exceed, when added to the aggregate amount of Designated Acquisitions,
Designated Guarantees and other Designated Investments made during such
fiscal year, the Permitted Amount for such fiscal year;
(xvi) in addition to the Investments permitted by the preceding
clauses of this Section 9.05, the Borrower and its Subsidiaries may make
Investments in any fiscal year of the Borrower in an aggregate amount not
to exceed, when added to the amount of amount of Designated Acquisitions,
Designated Guarantees and other Designated Investments made during such
fiscal year, the Permitted Amount for such fiscal year;
(xvii) in addition to the Investments permitted by the preceding
clauses of this Section 9.05, the Borrower, Caterair and their respective
Wholly-Owned Subsidiaries may acquire 100% of the capital stock of a third
Person with the Net Sale Proceeds received from any Asset Sale to the
extent that such Net Sale Proceeds are not required to be applied as
provided in Section 3.03(b) and to the extent such Net Sale Proceeds are
not otherwise used to make acquisitions pursuant to Section 9.02(xiv) or
Capital Expenditures pursuant to Section 9.07(d);
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(xviii) Caterair New Zealand may contribute the assets acquired by
it as part of the New Zealand acquisition consummated in August 1997 to a
Wholly-Owned Foreign Subsidiary of the Borrower; and
(xix) Caterair may make intercompany loans to the Borrower, provided
that all such intercompany loans are evidenced by an Intercompany Note
which is pledged by Caterair pursuant to the General Pledge Agreement.
9.06 Transactions with Affiliates. Each of OFSI, Caterair Holdings
and the Borrower will not, and each of Caterair Holdings and the Borrower will
not permit any of its respective Subsidiaries to, enter into any transaction or
series of related transactions, whether or not in the ordinary course of
business, with any Affiliate of OFSI, Caterair Holdings, the Borrower or any
Subsidiary of Caterair Holdings or the Borrower, other than in the ordinary
course of business and on terms and conditions substantially as favorable to
OFSI, Caterair Holdings, the Borrower or such Subsidiary as would reasonably be
obtained by OFSI, Caterair Holdings, the Borrower or such Subsidiary at that
time in a comparable arm's-length transaction with a Person other than an
Affiliate, except that:
(i) each such Person may pay reasonable fees and compensation to and
indemnity provided on behalf of, their respective officers, directors and
employees as determined in good faith by such Person's Board of Directors
or senior management to the extent not otherwise prohibited by the terms
of this Agreement;
(ii) transactions between or among the Borrower and/or any
Subsidiary of the Borrower, on the one hand, and any Subsidiary of the
Borrower or other Person controlled (as such term is defined in the
definition of "Affiliate") by the Borrower, on the other hand, shall be
permitted so long as (x) no portion of the remaining interest in such
Subsidiary or other Person is owned by a Person who controls (as such term
is defined in the definition of "Affiliate") the Borrower and (y) such
transactions are not otherwise prohibited by the provisions of this
Agreement;
(iii) each such Person may enter into transactions pursuant to the
OFSI/SCIS Tax Sharing Agreement and the Caterair Holdings/Caterair Tax
Sharing Agreement, and OFSI and its Non-SCIS Subsidiaries may enter into
the Non-SCIS Tax Sharing Agreements;
(iv) the Borrower or any Wholly-Owned Domestic Subsidiary of the
Borrower, on the one hand, and Caterair or any Wholly-Owned Domestic
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Subsidiary of Caterair, on the other hand, may enter into transactions
(including the transactions contemplated by the Operating Agreements and
the Sky Chefs/Caterair Management Agreement) between or among themselves
to the extent such transactions are not otherwise prohibited by the terms
of this Agreement;
(v) the Borrower and its Wholly-Owned Domestic Subsidiaries may
enter into transactions between and among themselves to the extent such
transactions are not otherwise prohibited by the terms of this Agreement;
(vi) Caterair and its Wholly-Owned Domestic Subsidiaries may enter
into transactions between and among themselves to the extent such
transactions are not otherwise prohibited by the terms of this Agreement;
(vii) each such Person may pay Dividends that it is permitted to pay
under Section 9.03;
(viii) so long as no Default under Section 10.01 or 10.05 and no Event
of Default has occurred and is continuing or would result therefrom, the
Borrower may pay management fees to Onex (or its designee) on a monthly
basis pursuant to the Borrower Management Agreement in an aggregate amount
not to exceed $2,000,000 in any fiscal year of the Borrower, provided, any
such fees that are accrued and not paid by virtue of the existence of any
Default under Section 10.01 or 10.05 or any Event of Default may be paid
on the earliest date that no such Default or Event of Default is
continuing or would result from such payment; and
(ix) transactions between or among the Borrower and its Subsidiaries
pursuant to Sections 9.02(xi), 9.02(xviii), 9.02(xix) and 9.04(xiii) shall
be permitted.
Without limiting the foregoing provisions of this Section 9.06 or any other
provision of this Agreement, in no event shall any management, consulting or
similar fees be paid by OFSI, Caterair Holdings, the Borrower or any Subsidiary
of Caterair Holdings or the Borrower to any Person that controls (as such term
is defined in the definition of "Affiliate") the Borrower or Caterair Holdings
except as otherwise permitted by clause (viii) of this Section 9.06.
9.07 Capital Expenditures. (a) Each of OFSI, Caterair Holdings and
the Borrower will not, and each of Caterair Holdings and the Borrower will not
permit any of its respective Subsidiaries to, make any Capital Expenditures,
except that (i)
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during the period from January 1, 1997 through and including December 31, 1997,
the Borrower, Caterair and their respective Subsidiaries may make Capital
Expenditures so long as the aggregate amount of all such Capital Expenditures
made during such period does not exceed $42,000,000, (ii) during the Borrower's
fiscal year ending December 31, 1998, the Borrower, Caterair and their
respective Subsidiaries may make Capital Expenditures so long as the aggregate
amount of all such Capital Expenditures made during such fiscal year does not
exceed 4.5% of the combined gross revenues of the Borrower, Caterair and their
respective Subsidiaries (but eliminating any intercompany revenues between or
among the Borrower, Caterair and their respective Subsidiaries) for the
Borrower's fiscal year ending December 31, 1997 and (iii) during each fiscal
year of the Borrower thereafter, the Borrower, Caterair and their respective
Subsidiaries may make Capital Expenditures so long as the aggregate amount of
all such Capital Expenditures made during each such fiscal year does not exceed
3.5% of the combined gross revenues of the Borrower, Caterair and their
respective Subsidiaries (but eliminating any intercompany revenues between or
among the Borrower, Caterair and their respective Subsidiaries) for the
immediately preceding fiscal year of the Borrower.
In the event that the amount of Capital Expenditures permitted to be
made by the Borrower, Caterair and their respective Subsidiaries pursuant to
this clause (a) (x) in fiscal year 1997 is greater than the amount of Capital
Expenditures actually made by the Borrower, Caterair and their respective
Subsidiaries during such fiscal year, such excess may be carried forward and
utilized to make Capital Expenditures in fiscal year 1998 and (y) in fiscal year
1998 (including any amounts carried forward from fiscal year 1997) is greater
than the amount of Capital Expenditures actually made by the Borrower, Caterair
and their respective Subsidiaries during such fiscal year, such excess may be
carried forward and utilized to make Capital Expenditures in fiscal year 1999,
provided that no amount once carried forward to fiscal year 1999 pursuant to
this clause (y) may be carried forward to a fiscal year thereafter and such
amount may only be utilized after the Borrower, Caterair and their respective
Subsidiaries have utilized in full the permitted Capital Expenditure amount for
fiscal year 1999 as set forth above in this clause (a).
(b) In addition to the Capital Expenditures permitted to be made
pursuant to clauses (a), (c) and (d) of this Section 9.07, the amount of
insurance proceeds received by the Borrower, Caterair or any of their respective
Subsidiaries from any Recovery Event may be used by the Borrower, Caterair or
any of its Subsidiaries to make Capital Expenditures to replace or restore any
properties or assets in respect of which such proceeds were paid to the extent
such proceeds are not required to be applied pursuant to Section 3.03(d).
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(c) In addition to the Capital Expenditures permitted to be made
pursuant to clauses (a), (b) and (d) of this Section 9.07, acquisitions pursuant
to Section 9.02(xiii), to the extent constituting Capital Expenditures, shall be
permitted.
(d) In addition to the Capital Expenditures permitted to be made
pursuant to clauses (a), (b) and (c) of this Section 9.07, the amount of Net
Sale Proceeds received by the Borrower, Caterair or any of their respective
Subsidiaries from any Asset Sale may be used by the Borrower, Caterair and their
respective Wholly-Owned Subsidiaries to make Capital Expenditures and
acquisitions pursuant to Section 9.02(xiv) to the extent constituting Capital
Expenditures, but only to the extent that such Net Sale Proceeds are not
otherwise required to be applied pursuant to Section 3.03(b) or are not applied
to make Investments pursuant to Section 9.05(xvii).
9.08 Combined Interest Coverage Ratio. The Borrower and Caterair
will not permit the Combined Interest Coverage Ratio for any Test Period ended
on the last day of a fiscal quarter set forth below to be less than the ratio
set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
September 30, 1997 2.00:1.00
December 31, 1997 2.00:1.00
March 31, 1998 2.00:1.00
June 30, 1998 2.00:1.00
September 30, 1998 2.00:1.00
December 31, 1998 2.00:1.00
March 31, 1999 2.00:1.00
June 30, 1999 2.00:1.00
September 30, 1999 2.00:1.00
December 31, 1999 2.25:1.00
March 31, 2000 2.25:1.00
June 30, 2000 2.25:1.00
September 30, 2000 2.25:1.00
December 31, 2000 2.25:1.00
March 31, 2001 2.25:1.00
June 30, 2001 2.25:1.00
September 30, 2001 2.25:1.00
December 31, 2001
and the last day of each fiscal
quarter thereafter 2.50:1.00
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9.09 Combined Leverage Ratio. The Borrower and Caterair will not
permit the Combined Leverage Ratio at any time during a period set forth below
to be greater than the ratio set forth opposite such period below:
Period Ratio
------ -----
Fiscal quarter ending September 30, 1997 4.75:1.00
Fiscal quarter ending December 31, 1997 4.75:1.00
Fiscal quarter ending March 31, 1998 4.75:1.00
Fiscal quarter ending June 30, 1998 4.75:1.00
Fiscal quarter ending September 30, 1998 4.75:1.00
Fiscal quarter ending December 31, 1998 4.75:1.00
Fiscal quarter ending March 31, 1999 4.75:1.00
Fiscal quarter ending June 30, 1999 4.75:1.00
Fiscal quarter ending September 30, 1999 4.75:1.00
October 1, 1999 through and including December 30, 1999 4.75:1.00
December 31, 1999 through and including March 31, 2000 4.50:1.00
Fiscal quarter ending June 30, 2000 4.50:1.00
Fiscal quarter ending September 30, 2000 4.50:1.00
October 1, 2000 through and including December 30, 2000 4.50:1.00
December 31, 2000 through and including March 31, 2001 4.00:1.00
Fiscal quarter ending June 30, 2001 4.00:1.00
Fiscal quarter ending September 30, 2001 4.00:1.00
October 1, 2001 through and including December 30, 2001 4.00:1.00
December 31, 2001 and thereafter 3.50:1.00
9.10 Limitation on Payments of Certain Indebtedness; Modifications
of Certain Indebtedness; Modifications of Certificates of Incorporation, By-Laws
and Certain Other Agreements; etc. Each of OFSI, Caterair Holdings and the
Borrower will not, and each of Caterair Holdings and the Borrower will not
permit any of its respective Subsidiaries to, (i) make (or give any notice in
respect of) any voluntary or optional payment or prepayment on or redemption or
acquisition for value of, or any prepayment or redemption as a result of any
asset sale, change of control or similar event of (including in each case,
without limitation, by way of depositing with the trustee with respect thereto
or any other Person money or securities before due for the purpose of paying
when due) the Senior Subordinated Notes, the Caterair Holdings Secured Note
(other than the payment in full thereof with the proceeds from the sale or
liquidation of the Caterair Holdings Certificate of Deposit), any Caterair
Holdings Unsecured Debentures or the SCIS/Caterair Loan (except to the extent
otherwise permitted by this Agreement in the case of the SCIS/Caterair Loan),
provided that (x) the Borrower may redeem or repurchase outstanding 13% Senior
Subordinated Notes
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pursuant to the 13% Senior Subordinated Note Tender Offer and (y) after the 13%
Senior Subordinated Note Tender Offer Expiration Date, the Borrower may
voluntarily redeem or repurchase outstanding 13% Senior Subordinated Notes so
long as no Default or Event of Default then exists, (ii) amend or modify, or
permit the amendment or modification of, any provision of the Senior
Subordinated Note Documents (other than, in the case of the 13% Senior
Subordinated Notes, as contemplated by the 13% Senior Subordinated Note
Indenture Supplement), the Caterair Holdings Secured Note, the Caterair Holdings
Unsecured Debentures, the Caterair Holdings CD Pledge Agreement, the
SCIS/Caterair Note or the Subordinated Intercompany Security Agreement or of any
other agreement related thereto (including, without limitation, any purchase
agreement, indenture, loan agreement or security agreement), (iii) amend, modify
or change its certificate of incorporation (including, without limitation, by
the filing or modification of any certificate of designation), or by-laws, or
any agreement entered into by it, with respect to its capital stock, or enter
into any new agreement with respect to its capital stock, other than amendments,
modifications or changes thereto which are not adverse in any respect to the
interests of the Banks, (iv) amend, modify or change any provision of the Lease
Agreements, the License Agreements or the Non-Compete Agreements, other than
immaterial amendments, modifications or changes thereto which are not adverse in
any respect to the interests of the Banks, or (v) amend, modify or change any
provision of any Tax Sharing Agreement (including the OFSI/SCIS Tax Sharing
Agreement, the Caterair Holdings/Caterair Tax Sharing Agreement or after the
execution and delivery thereof, any Non-SCIS Tax Sharing Agreement) or the
Borrower Management Agreement.
9.11 Limitation on Certain Restrictions on Subsidiaries. Each of
OFSI, Caterair Holdings and the Borrower will not, and each of Caterair Holdings
and the Borrower will not permit any of its respective Subsidiaries to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by OFSI, Caterair Holdings, the
Borrower or any Subsidiary of Caterair Holdings or the Borrower, as the case may
be, or pay any Indebtedness owed to OFSI, Caterair Holdings, the Borrower or any
Subsidiary of Caterair Holdings or the Borrower, as the case may be, (b) make
loans or advances to OFSI, Caterair Holdings, the Borrower or any Subsidiary of
Caterair Holdings or the Borrower or (c) transfer any of its properties or
assets to OFSI, Caterair Holdings, the Borrower or any Subsidiary of Caterair
Holdings or the Borrower, except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) this Agreement and the other
Credit Documents, (iii) the Senior Subordinated Note Documents, (iv) the
Caterair Credit Agreement and the other Caterair Credit Documents, (v) customary
provisions restricting subletting or assignment of any lease governing a
leasehold inter-
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est of OFSI, Caterair Holdings, the Borrower or any Subsidiary of Caterair
Holdings or the Borrower, (vi) customary provisions restricting assignment of
any license or other contract entered into in the ordinary course of business,
(vii) restrictions on the transfer of any asset subject to a Lien permitted by
this Agreement, (viii) restrictions imposed by any agreement to sell assets to
any Person pending the closing of such sale, (ix) restrictions imposed by any
joint venture or similar agreement entered into with respect to Investments
permitted by the terms of this Agreement, (x) restrictions imposed by any
Catering Agreement, lease or permit entered into in the ordinary course of
business in connection with the operation of a Flight Kitchen on the sale of
assets of the Person subject to such Catering Agreement, lease or permit and
(xi) any agreement or instrument governing any Indebtedness of a Foreign
Subsidiary of the Borrower so long as all Foreign Subsidiaries of the Borrower
whose Indebtedness agreements contain such restrictions, in the aggregate, did
not account for more than 10% of Combined EBITDA (after giving pro forma effect
to the inclusion of any additional Foreign Subsidiary proposing to enter into
such an agreement) during the Test Period ending immediately prior to the date
of determination thereof.
9.12 Limitation on Issuance of Capital Stock. (a) Each of OFSI,
Caterair Holdings and the Borrower will not, and each of Caterair Holdings and
the Borrower will not permit any of its respective Subsidiaries to, issue (i)
any class of preferred stock other than issuances by non-Wholly-Owned Foreign
Subsidiaries of the Borrower of preferred stock so long as the percentage
interest (direct or indirect) of the Borrower in such preferred stock is equal
to or greater than the percentage interest (direct or indirect) of the Borrower
in the common stock of such Subsidiary, or (ii) any class of redeemable (except
at the sole option of OFSI, Caterair Holdings, the Borrower or such Subsidiary)
common stock.
(b) Each of OFSI and Caterair Holdings will not permit any of its
respective Subsidiaries (other than a Non-SCIS Subsidiary) to issue any capital
stock (including by way of sales of treasury stock) or any options or warrants
to purchase, or securities convertible into, capital stock, except (i) for
transfers and replacements of then outstanding shares of capital stock, (ii) for
stock splits, stock dividends and additional issuances which do not decrease the
percentage ownership of OFSI, Caterair Holdings or any of their respective
Subsidiaries in any class of the capital stock or partnership interest of such
Subsidiary and (iii) to qualify directors to the extent required by applicable
law.
9.13 Business; etc. (a) The Borrower will not, and will not permit
any of its Subsidiaries to, engage in any business other than (i) the businesses
in which the Borrower, Caterair and their respective Subsidiaries and joint
ventures are engaged on the Restatement Effective Date; (ii) the businesses of
(w) producing, distributing,
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selling or delivering, or providing management or other services with respect
to, meals or other food products, (x) providing catering services, (y) providing
goods or services to Persons engaged in providing transportation services,
including, but not limited to, Persons engaged in the airline or other passenger
transportation business, or (z) providing goods or services to or at,
transportation terminals and other facilities, including, but not limited to,
airports, train stations, bus stations or roadside service facilities
(including, but not limited to, providing goods or services to any Person who
conducts operations at any such facility); or (iii) any business which is
determined in good faith by the Borrower' Board of Directors to be similar,
ancillary, complimentary or related to, or an extension of, any business
described in clause (i) or (ii) above.
(b) So long as any Lease Agreement or License Agreement that is in
effect on the Restatement Effective Date remains in effect, Caterair will not,
and will not permit any of its Subsidiaries to, engage in any business other
than the transactions contemplated under the Lease Agreements and the License
Agreements, provided, however, (i) that Caterair may continue to operate certain
of its Flight Kitchens if Caterair has not received as of the Restatement
Effective Date the requisite consents to lease such Flight Kitchens to the
Borrower or a Subsidiary of the Borrower, (ii) Caterair also may transfer, lease
or license assets pursuant to Section 9.02(xvii), and (iii) from and after the
termination of the Lease Agreements and the License Agreements that are in
effect on the Restatement Effective Date, Caterair and its Subsidiaries will not
engage in any business other than the businesses permitted to be engaged in by
the Borrower and its Subsidiaries pursuant to Section 9.13(a), including
entering into lease and license arrangements with respect to those Flight
Kitchens then owned by Caterair and its Subsidiaries pursuant to arm's-length
arrangements.
(c) Notwithstanding anything to the contrary contained in this
Agreement, (i) OFSI will not engage in any significant business activities, will
have no significant assets other than its ownership interest in the Borrower,
Caterair Holdings, the Class B Assets and the Non-SCIS Subsidiaries and will
have no significant liabilities other than those in connection with stock plans
approved by its Board of Directors and those in connection with this Agreement,
the other Credit Documents, the Caterair Credit Documents and those in which
recourse is expressly limited solely to the Class B Assets or any equity
interests in any Non-SCIS Subsidiary or any Dividends or earnings from, or any
proceeds in respect of, any thereof and (ii) OFSI will not permit any of its
Non-SCIS Subsidiaries to engage in any business that competes with any business
in which the Borrower, Caterair or any other of their respective Subsidiaries is
actively engaged in or in which in any way involves the business of (1)
producing, distributing, selling or delivering, or providing management or other
services with respect to, meals or other food products or (2) providing catering
services. OFSI will
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not permit any Person other than itself or an OFSI Designee to hold the Caterair
Holdings Unsecured Debentures.
(d) Notwithstanding anything to the contrary contained in this
Agreement, Caterair Holdings will not engage in any significant business
activities, will have no assets other than its ownership interest in Caterair
and the Caterair Holdings Certificate of Deposit and will have no significant
liabilities other than those under the Caterair Holdings Secured Note, the
Caterair Holdings Unsecured Debentures, the Caterair Holdings CD Pledge
Agreement, this Agreement, the other Credit Documents to which it is a party and
the Caterair Credit Documents to which it is a party.
(e) Notwithstanding anything to the contrary contained in Section
9.13(a) or elsewhere in this Agreement, IFSC will not engage in any significant
business activities and will not have any significant assets or liabilities
other than in connection with its operation as an Irish financial services
center captive finance company for the Foreign Subsidiaries of the Borrower.
9.14 Limitation on Creation of Subsidiaries. (a) Each of Caterair
Holdings and the Borrower will not, and will not permit any of its Subsidiaries
to, establish, create or acquire any Subsidiaries after the Restatement
Effective Date; provided that (i) the Borrower and its Wholly-Owned Subsidiaries
shall be permitted to establish and create Wholly-Owned Subsidiaries and, to the
extent otherwise permitted by this Agreement, acquire and make Investments in
Wholly-Owned Subsidiaries and non-Wholly-Owned Subsidiaries so long as (x) in
the case of the establishment, creation or acquisition of a Wholly-Owned
Domestic Subsidiary, such Wholly-Owned Domestic Subsidiary takes all of the
actions required to be taken by it pursuant to Section 8.11 and 100% of the
capital stock of such Wholly-Owned Domestic Subsidiary is pledged pursuant to
the General Pledge Agreement and (y) in the case of the establishment, creation
or acquisition of a non-Wholly-Owned Subsidiary by a Credit Party, the capital
stock of such Subsidiary owned by such Credit Party is pledged pursuant to, and
to the extent required by, the General Pledge Agreement and (ii) Subsidiaries of
the Borrower which are not Wholly-Owned Subsidiaries shall be permitted to
establish and create Subsidiaries and, to the extent otherwise permitted by this
Agreement, make Investments in Subsidiaries.
(b) OFSI will not establish, create or acquire any Subsidiaries
after the Restatement Effective Date; provided that OFSI shall be permitted to
create Non-SCIS Subsidiaries so long as in each case (i) the Agents are
reasonably satisfied with any liabilities arising as a result thereof or
acquired in connection therewith (including, but not limited to, all pension,
tax and environmental liabilities), which could reasonably be expected to become
liabilities of OFSI, the Borrower or any Subsidiary
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of the Borrower, it being understood and agreed that in any event there may be
recourse to OFSI in respect of any such obligations or liabilities but only to
the extent that such recourse is expressly limited solely to the Class B Assets
or the equity interests of any Non-SCIS Subsidiary or any Dividends or earnings
from, or proceeds in respect of, any thereof, and (ii) at the time that any such
Non-SCIS Subsidiary is formed or acquired, OFSI and such Non-SCIS Subsidiary
shall enter into a Non-SCIS Subsidiary Tax Sharing Agreement in form and
substance satisfactory to the Agents.
9.15 Senior Subordinated Notes; etc. Neither the Borrower nor any of
its Subsidiaries shall designate any Indebtedness, other than the Obligations
and the obligations under the Caterair Credit Documents, as "Designated Senior
Debt" for purposes of the Senior Subordinated Notes and the other Senior
Subordinated Note Documents. Notwithstanding anything to the contrary contained
herein or in the SCIS/Caterair Note, upon the occurrence and during the
continuance of a Default or an Event of Default, the Borrower will not take any
enforcement action whatsoever in connection with any default or event of default
under, or in respect of, the SCIS/Caterair Note.
SECTION 10. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when
due of any principal of any Loan or any Note or (ii) default, and such default
shall continue unremedied for three or more days, in the payment when due of any
Unpaid Drawings or interest on any Loan or Note, or any Fees or any other
amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or
statement made (or deemed made) by any Credit Party herein or in any other
Credit Document or in any certificate delivered pursuant hereto or thereto shall
prove to be untrue in any material respect on the date as of which made or
deemed made; or
10.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(g)(i), 8.08, 8.13 or 8.14 or Section 9 or (ii) default in the due
performance or observance by it of any other term, covenant or agreement
contained in this Agreement and such default shall continue unremedied for a
period of 30 days after written notice to the Borrower by the Administrative
Agent or any Bank; or
10.04 Default Under Other Indebtedness. (i) OFSI, Caterair Holdings,
the Borrower, the Designated Onex Sub or any Subsidiary of Caterair Holdings or
the
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Borrower (other than an Immaterial Subsidiary) shall (x) default in any payment
of any Indebtedness (other than the Obligations and any Indebtedness arising
under or in connection with the Caterair Holdings Secured Note but only to the
extent that there is sufficient cash collateral to satisfy in full all
obligations in respect of the Caterair Holdings Secured Note) beyond the period
of grace, if any, provided in the instrument or agreement under which such
Indebtedness was created or (y) default in the observance or performance of any
agreement or condition relating to any Indebtedness (other than the Obligations
and any Indebtedness arising under or in connection with the Caterair Holdings
Secured Note but only to the extent that there is sufficient cash collateral to
satisfy in full all obligations in respect of the Caterair Holdings Secured
Note) or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or would permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause (determined without regard to whether any notice is
required), any such Indebtedness to become due prior to its stated maturity, or
(ii) any Indebtedness (other than the Obligations and any Indebtedness arising
under or in connection with the Caterair Holdings Secured Note but only to the
extent that there is sufficient cash collateral to satisfy in full all
obligations in respect of the Caterair Holdings Secured Note) of OFSI, Caterair
Holdings, the Borrower, the Designated Onex Sub or any Subsidiary of Caterair
Holdings or the Borrower (other than an Immaterial Subsidiary) shall be declared
to be due and payable, or required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof, provided
that it shall not be a Default or an Event of Default under this Section 10.04
unless the aggregate principal amount of all Indebtedness as described in
preceding clauses (i) and (ii) is at least $5,000,000; or
10.05 Bankruptcy, etc. OFSI, Caterair Holdings, the Borrower, the
Designated Onex Sub or any Subsidiary of Caterair Holdings or the Borrower
(other than an Immaterial Subsidiary) shall commence a voluntary case concerning
itself under Title 11 of the United States Code entitled "Bankruptcy," as now or
hereafter in effect, or any successor thereto (the "Bankruptcy Code"); or an
involuntary case is commenced against OFSI, Caterair Holdings, the Borrower, the
Designated Onex Sub or any Subsidiary of Caterair Holdings or the Borrower
(other than an Immaterial Subsidiary) and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of OFSI, Caterair
Holdings, the Designated Onex Sub, the Borrower or any Subsidiary of Caterair
Holdings or the Borrower (other than an Immaterial Subsidiary), or OFSI,
Caterair Holdings, the Borrower, the Designated Onex Sub or any Subsidiary of
Caterair Holdings or the Borrower (other than an Immaterial Subsidiary)
commences
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any other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency, administration or liquidation or
similar law of any jurisdiction whether now or hereafter in effect relating to
OFSI, Caterair Holdings, the Borrower, the Designated Onex Sub or any Subsidiary
of Caterair Holdings or the Borrower (other than an Immaterial Subsidiary), or
there is commenced against OFSI, Caterair Holdings, the Designated Onex Sub, the
Borrower or any Subsidiary of Caterair Holdings or the Borrower (other than an
Immaterial Subsidiary) any such proceeding which remains undismissed for a
period of 60 days, or OFSI, Caterair Holdings, the Borrower, the Designated Onex
Sub or any Subsidiary of Caterair Holdings or the Borrower (other than an
Immaterial Subsidiary) is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or OFSI,
Caterair Holdings, the Borrower, the Designated Onex Sub or any Subsidiary of
Caterair Holdings or the Borrower (other than an Immaterial Subsidiary) suffers
any appointment of any custodian, liquidator, administrator, receiver or the
like for it or any substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or OFSI, Caterair Holdings, the Borrower, the
Designated Onex Sub or any Subsidiary of Caterair Holdings or the Borrower
(other than an Immaterial Subsidiary) makes a general assignment for the benefit
of creditors; or any corporate action is taken by OFSI, Caterair Holdings, the
Borrower, the Designated Onex Sub or any Subsidiary of Caterair Holdings or the
Borrower (other than an Immaterial Subsidiary) for the purpose of effecting any
of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code, any Plan shall have had or is likely to have a trustee appointed to
administer such Plan, any Plan is, shall have been or is likely to be terminated
or to be the subject of termination proceedings under ERISA, any Plan shall have
an Unfunded Current Liability, a contribution required to be made to a Plan or a
Foreign Pension Plan has not been timely made, OFSI, Caterair Holdings or any
Subsidiary or ERISA Affiliate of OFSI or Caterair Holdings has incurred or is
likely to incur a liability to or on account of a Plan under Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971, 4975 or 4980 of the Code, or OFSI, Caterair Holdings
or any Subsidiary of OFSI or Caterair Holdings has incurred or is likely to
incur liabilities pursuant to one or more employee welfare benefit plans (as
defined in Section 3(1) of ERISA) that provide benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA) or
employee pension benefit plans (as defined in Section 3(2) of ERISA) or Foreign
Pension Plans; and (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability; and (c) which lien, security interest or
liability, individually, and/or in the
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aggregate, in the opinion of the Required Banks, could reasonably be expected to
have a material adverse effect on the business, operations, properties, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower,
the Borrower and its Subsidiaries taken as a whole, Caterair, Caterair and its
Subsidiaries taken as a whole or OFSI and its SCIS Subsidiaries taken as a
whole; or
10.07 Security Documents. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and effect, or shall cease to give the Collateral Agent for the benefit of the
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected security interest
in, and Lien on, all of the Collateral (other than Collateral with an aggregate
value of up to $1,000,000)), in favor of the Collateral Agent, superior to and
prior to the rights of all third Persons (except as permitted by Section 9.01),
and subject to no other Liens (except as permitted by Section 9.01), or any
Credit Party shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to any of
the Security Documents and such default shall continue unremedied for a period
of 30 days (or such longer period of time as may be specifically applicable
thereto pursuant to the terms of any Mortgage); or
10.08 Guaranties; etc. Any Guaranty or any provision thereof shall
cease to be in full force and effect, or any Guarantor or any Person acting for
or on behalf of any Guarantor shall deny or disaffirm such Guarantor's
obligations under the relevant Guaranty, or any Guarantor shall default in its
due performance of any term, covenant or agreement on its part to be performed
or observed pursuant to the relevant Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered
against OFSI, Caterair Holdings, the Borrower, the Designated Onex Sub or any
Subsidiary of Caterair Holdings or the Borrower (other than an Immaterial
Subsidiary) involving in the aggregate for OFSI, Caterair Holdings, the
Borrower, the Designated Onex Sub and such Subsidiaries a liability (not paid or
fully covered by a reputable and solvent insurance company) and such judgments
and decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 30 consecutive
days, and the aggregate amount of all such judgments exceeds $5,000,000; or
10.10 Change of Control. A Change of Control shall occur; or
10.11 American Airlines Catering Agreements. Any American Airlines
Catering Agreement or any material provision thereof shall cease to be in full
force and
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effect or the Borrower, Caterair or any Subsidiary of the Borrower or Caterair,
as the case may be, shall deny or disaffirm any of its material obligations
thereunder or the Borrower, Caterair or any Subsidiary of the Borrower or
Caterair, as the case may be, shall default in the due performance or observance
of any term, covenant or agreement on its part to be performed or observed
pursuant thereto and as a result thereof one or more American Airlines Catering
Agreements are terminated with respect to Flight Kitchens that accounted for
more than 20% of the gross revenues derived by the Borrower, Caterair and any
Subsidiary of the Borrower and Caterair on a combined basis from said agreements
during the immediately preceding fiscal year; or
10.12 Certain Caterair Agreements. Any Lease Agreement, any License
Agreement or the Non-Compete Agreement or any material provision thereof shall
cease to be in full force and effect (other than by virtue of the exercise of
the Purchase Option in accordance with Section 9.02(ix) or the expiration of any
such agreement at the end of the respective term thereof) or any party thereto
shall deny or disaffirm any of its material obligations thereunder or shall
default in the due performance or observance of any material term, covenant or
agreement on its part to be performed or observed pursuant thereto; or
10.13 Caterair Holdings Subordination Agreement and Escrow
Agreement. The Caterair Holdings Subordination Agreement, the Caterair Holdings
Escrow Agreement (after the execution and delivery thereof) or any provision of
the foregoing agreements shall cease to be a legal, valid and binding obligation
enforceable against any party thereto, or any party to the Caterair Holdings
Subordination Agreement or the Caterair Holdings Escrow Agreement (after the
execution and delivery thereof) (other than the Administrative Agent) or any
Person acting by or on behalf of any such party shall deny or disaffirm such
party's obligations under the Caterair Holdings Subordination Agreement or the
Caterair Holdings Escrow Agreement (after the execution and delivery thereof),
or any such party shall default in the due performance of any term, covenant or
agreement on its part to be performed or observed pursuant to any such
Agreement;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Banks, shall by written notice to the Borrower, take any or all of
the following actions, without prejudice to the rights of any Agent, any Bank or
the holder of any Note to enforce its claims against any Credit Party (provided
that, if an Event of Default specified in Section 10.05 shall occur with respect
to the Borrower, the result which would occur upon the giving of written notice
by the Administrative Agent to the Borrower as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Revolving Loan Commitment termin-
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ated, whereupon the Revolving Loan Commitment of each Bank shall forthwith
terminate immediately and any accrued and unpaid Commitment Commission shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
the Notes and all Obligations owing hereunder and thereunder to be, whereupon
the same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Credit Party; (iii) terminate any Letter of Credit which may be terminated in
accordance with its terms; (iv) direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an Event of
Default specified in Section 10.05 with respect to the Borrower, it will pay) to
the Administrative Agent at the Payment Office such additional amount of cash,
to be held as security by the Administrative Agent, as is equal to the aggregate
Stated Amount of all Letters of Credit issued for the account of the Borrower
and then outstanding; (v) enforce, as Collateral Agent, any or all of the Liens
and security interests created pursuant to the Security Documents; and/or (vi)
apply any cash collateral as provided in Section 4.02.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Adjusted Available Revolving Loan Commitment" for each Bank shall
mean, at any time, such Bank's Revolving Loan Commitment at such time less such
Bank's Adjusted RL Percentage of the Blocked Commitment at such time.
"Adjusted RL Percentage" shall mean (x) at a time when no Bank
Default exists, for each Bank, such Bank's RL Percentage and (y) at a time when
a Bank Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii)
for each Bank that is a Non-Defaulting Bank, the percentage determined by
dividing such Bank's Revolving Loan Commitment at such time by the Adjusted
Total Revolving Loan Commitment at such time, it being understood that all
references herein to Revolving Loan Commitments and the Adjusted Total Revolving
Loan Commitment at a time when the Total Revolving Loan Commitment or Adjusted
Total Revolving Loan Commitment, as the case may be, has been terminated shall
be references to the Revolving Loan Commitments or Adjusted Total Revolving Loan
Commitment, as the case may be, in effect immediately prior to such termination,
provided that (A) no Bank's Adjusted RL Percentage shall change upon the
occurrence of a Bank Default from that in effect immediately prior to such Bank
Default if after giving effect to such Bank Default, and any repayment of
Revolving Loans and Swingline Loans at such time
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pursuant to Section 4.02(a) or otherwise, the sum of (i) the aggregate
outstanding principal amount of Revolving Loans of all Non-Defaulting Banks,
plus (ii) the aggregate outstanding principal amount of all Swingline Loans,
plus (iii) the Letter of Credit Outstandings, exceeds the Adjusted Total
Revolving Loan Commitment; (B) the changes to the Adjusted RL Percentage that
would have become effective upon the occurrence of a Bank Default but that did
not become effective as a result of the preceding clause (A) shall become
effective on the first date after the occurrence of the relevant Bank Default on
which the sum of (i) the aggregate outstanding principal amount of the Revolving
Loans of all Non-Defaulting Banks, plus (ii) the aggregate outstanding principal
amount of all Swingline Loans, plus (iii) the Letter of Credit Outstandings is
equal to or less than the Adjusted Total Revolving Loan Commitment; and (C) if
(i) a Non-Defaulting Bank's Adjusted RL Percentage is changed pursuant to the
preceding clause (B) and (ii) any repayment of such Bank's Revolving Loans,
Swingline Loans or Unpaid Drawings that were made during the period commencing
after the date of the relevant Bank Default and ending on the date of such
change to its Adjusted RL Percentage must be returned to the Borrower as a
preferential or similar payment in any bankruptcy or similar proceeding of the
Borrower, then the change to such Non-Defaulting Bank's Adjusted RL Percentage
effected pursuant to said clause (B) shall be reduced to that positive change,
if any, as would have been made to its Adjusted RL Percentage if (x) such
repayments had not been made and (y) the maximum change to its Adjusted RL
Percentage would have resulted in the sum of the outstanding principal of
Revolving Loans made by such Bank plus such Bank's new Adjusted RL Percentage of
Swingline Loans and Letter of Credit Outstandings equalling such Bank's
Revolving Loan Commitment at such time.
"Adjusted Total Available Revolving Loan Commitment" shall mean, at
any time, the Total Available Revolving Loan Commitment at such time less the
aggregate Revolving Loan Commitments of all Defaulting Banks at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any time
the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Banks.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Affiliate" shall mean, with respect to any Person, any other Person
(i) directly or indirectly controlling, (including, but not limited to, all
directors, officers and partners of such Person), controlled by, or under direct
or indirect common control with, such Person or (ii) that directly or indirectly
owns more than 10% of any class of the voting securities or capital stock of or
equity interests in such Person. A Person
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shall be deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall mean each of the Administrative Agent, the Syndication
Agent and, for purposes of Sections 12, 13 and 14, each such Agent also in its
capacity as a Co-Arranger.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
thereof), extended, renewed, refinanced or replaced from time to time.
"American Airlines" shall mean American Airlines, Inc., a Delaware
corporation.
"American Airlines Catering Agreement" shall mean each of (i) the
Catering Services Agreement, dated as of April 27, 1992, as amended, between Sky
Chefs and American Airlines, (ii) the Catering Services Agreement, dated as of
February 11, 1992, as amended, between Caterair and American Airlines and (iii)
any other Catering Services Agreement entered into by the Borrower, Caterair or
any Subsidiary of the Borrower or Caterair with American Airlines.
"Applicable Commitment Commission Percentage" shall mean (i) for the
period from the Restatement Effective Date through but not including the first
Start Date, 3/8 of 1% and (ii) from and after any Start Date to and including
the corresponding End Date, the respective percentage per annum set forth in
clause (A), (B) or (C) below if, but only if, as of the Test Date for such Start
Date the applicable condition set forth in clause (A), (B) or (C) below, as the
case may be, is met:
(A) 3/8 of 1% if, but only if, as of the Test Date for such Start
Date the Leverage Ratio for the Test Period ended on such Test Date shall
be greater than 3.50:1.00;
(B) 3/10 of 1% if, but only if, as of the Test Date for such Start
Date the Leverage Ratio for the Test Period ended on such Test Date shall
be less than or equal to 3.50:1.00 and greater than 3.00:1.00; and
(C) 1/4 of 1% if, but only if, as of the Test Date for such Start
Date the Leverage Ratio for the Test Period ended on such Test Date shall
be less than or equal to 3.00:1.00.
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Notwithstanding anything to the contrary contained above in this definition, the
Applicable Commitment Commission Percentage shall be 3/8 of 1% at all times when
(i) a Default under Section 8.01(b), 8.01(c), 10.01 or 10.05 shall exist or (ii)
any Event of Default shall exist.
"Applicable Margin" shall mean a percentage per annum equal to (x)
in the case of Revolving Loans which are maintained as (i) Base Rate Loans, 1/4
of 1% less the then applicable Interest Reduction Discount, if any, and (ii)
Eurodollar Loans, 1-1/4 of 1% less the then applicable Interest Reduction
Discount, if any, and (y) in the case of Swingline Loans, 1/4 of 1% less the
then applicable Interest Reduction Discount, if any; provided, however, that
notwithstanding anything to the contrary contained above in this definition or
in the definition of Interest Reduction Discount, in no case will the Applicable
Margin ever be less than zero.
"Asset Sale" shall mean any sale, transfer or other disposition by
OFSI, Caterair Holdings, the Borrower or any Subsidiary of the Borrower or
Caterair Holdings to any Person (including by-way-of redemption by such Person)
other than to the Borrower or any Wholly-Owned Subsidiary of the Borrower or
Caterair Holdings of any asset (including, without limitation, any capital stock
or other securities of, or equity interests in, another Person) other than sales
of assets pursuant to Sections 9.02(iii), (v), (vi), (xi), (xii) and (xx).
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit O (appropriately
completed).
"Authorized Financial Officer" of the Borrower or Caterair, as the
case may be, shall mean any of the Chief Financial Officer, Treasurer, Assistant
Treasurer, Controller or any other senior financial officer of the Borrower or
Caterair, as the case may be, reasonably acceptable to the Administrative Agent.
"Bank" shall mean each financial institution listed on Schedule I,
as well as any Person which becomes a "Bank" hereunder pursuant to Section 1.13
or 13.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing (including
any Mandatory Borrowing) or to fund its portion of any unreimbursed payment
under Section 2.04(c) or (ii) a Bank having notified in writing the Borrower
and/or the Administrative Agent that it does not intend to comply with its
obligations under Section 1.01 or Section 2, in the case of either clause (i) or
(ii) above as a result of any takeover of such Bank by any regulatory authority
or agency.
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"Bank Escrow Agreement" shall have the meaning provided in Section
8.15.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" for any day shall mean a rate per annum equal to the
higher of (i) the sum of 1/2 of 1% plus the Federal Funds Rate for such day and
(ii) the Prime Lending Rate for such day.
"Base Rate Loan" shall mean each Swingline Loan and each Revolving
Loan designated or deemed designated as such by the Borrower at the time of the
incurrence thereof or conversion thereto.
"Blocked Commitment" shall mean, at any time, an amount equal to the
aggregate principal amount (or the Dollar Equivalent thereof) of all Third-Party
Foreign Subsidiary Indebtedness outstanding at such time in excess of
$35,000,000 at any time thereafter, except, in either case, to the extent that
such excess Third-Party Foreign Subsidiary Indebtedness is supported by a Letter
of Credit.
"BNY" shall mean The Bank of New York, in its individual capacity.
"Borrower" shall mean SCIS.
"Borrower Management Agreement" shall mean the Management Agreement,
dated as of September 28, 1995, between SCIS and Onex (or an Affiliate thereof).
"Borrowing" shall mean the borrowing by the Borrower of (i)
Swingline Revolving Loans from the Swingline Bank on a given date and (ii) one
Type of Loan from all the Banks on a given date (or resulting from a conversion
or conversions on such date) having in the case of Eurodollar Loans the same
Interest Period, provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of the related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company in its individual capacity.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in New York City a legal holiday or a day on which banking institutions are
authorized or
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required by law or other government action to close and (ii) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, Eurodollar Loans, any day which is a Business Day described in
clause (i) above and which is also a day for trading by and between banks in the
London interbank Eurodollar market.
"Canex" shall mean Canex, Inc., a Cayman Islands corporation.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
generally accepted accounting principles) and, without duplication, the amount
of all Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under generally accepted accounting principles, are or will
be required to be capitalized on the books of such Person, in each case taken at
the amount thereof accounted for as indebtedness in accordance with such
principles.
"Cash Equivalents" shall mean (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Ratings Service ("S&P") or ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv) time
deposits, certificates of deposit or bankers' acceptances (or, with respect to
foreign banks, similar instruments) maturing within one year from the date of
acquisition thereof issued by any commercial bank (or any branch thereof)
organized under the laws of the United States of America or any state thereof or
the District of Columbia or any U.S. branch of a foreign bank having at the date
of acquisition thereof combined capital and surplus of not less than
$200,000,000; (v) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause (i) above entered
into with any bank meeting the qualifications specified in clause (iv) above;
(vi) investments in money market funds substantially all of whose assets are
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comprised of securities of the types described in clauses (i) through (v) above,
and (vii) overnight deposits and demand deposit accounts maintained in the
ordinary course of business; provided that, any funds on deposit in a trust
established by the Borrower or any Subsidiary of the Borrower in connection with
a Voluntary Employees' Beneficiary Association (as referred to in Section
501(c)(9) of the Code) may also be invested in (A) the American Advantage Money
Market Fund (or similar funds), (B) bonds and notes of corporations having, at
the time of investment, a rating of at least A by both Moody's and S&P or if an
unrated supranational, an equivalent credit quality, (C) asset-backed securities
(including, but not limited to, mortgage obligations and automobile or credit
card receivables), (D) floating rate notes, (E) master notes and both domestic
and international private placements, (F) financial futures (including, but not
limited to, treasury bills and notes, certificates of deposit and Eurodollar
deposits), (G) repurchase obligations relating to any securities described in
clauses (B) through (F) above, (H) securities of the type described in clause
(iv) above except that instead of a combined capital and surplus requirement,
such bank, or its holding company, must have (x) a long-term debt rating of at
least A by either Moody's or S&P, (y) a commercial paper rating of at least A-1
by S&P or P-1 by Moody's, or (z) an equivalent credit quality if unrated, (I)
tax exempt and tax advantaged securities (including, but not limited to, tax
exempt commercial paper, tax exempt notes, and auction rate preferred stock),
(J) hedged non-dollar money market investments, (K) securities of the types
described in clauses (i) through (vi) and (B) through (J) above whose individual
securities may have a maximum maturity of five years.
"Caterair" shall have the meaning provided in the first paragraph of
this Agreement.
"Caterair Credit Agreement" shall mean the Term Loan Agreement,
dated as of August 28, 1997, among SCIS, Caterair, the lenders from time to time
party thereto, BTCo and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers, BTCo, as
Syndication Agent, and ▇▇▇▇▇▇, as Administrative Agent, as amended, modified or
supplemented from time to time.
"Caterair Credit Documents" shall mean the "Credit Documents" under,
and as defined in, the Caterair Credit Agreement.
"Caterair Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"Caterair Holdings/Caterair Tax Sharing Agreement" shall mean the
Income Tax Sharing Agreement, dated December 15, 1989, among Host Marriott
Corporation, Caterair Holdings and Caterair.
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"Caterair Holdings CD Pledge Agreement" shall mean the Pledge,
Assignment and Security Agreement, dated as of December 18, 1989, as amended or
otherwise modified in accordance with the terms hereof and thereof, made by
Wilmington Trust Company, as Trustee for Deerfield Capital, for the benefit of
The Sumitomo Bank of New York Trust Company, as Collateral Agent for The
Sumitomo Bank, Limited and Citibank, N.A.
"Caterair Holdings Certificate of Deposit" shall mean a certificate
of deposit issued by The Sumitomo Bank, Limited, acting through its New York
Branch in the principal amount of $236,200,000, with a maturity date of December
15, 1999 (subject to extension) (together with any certificate of deposit or
other investment issued in extension or replacement thereof or in substitution
for such certificate of deposit).
"Caterair Holdings Class A Nonvoting Common Stock" shall mean the
Class A nonvoting common stock, $.01 par value per share, of Caterair Holdings.
"Caterair Holdings Class B Voting Common Stock" shall mean the Class
B voting common stock, $.01 par value per share, of Caterair Holdings.
"Caterair Holdings Escrow Agreement" shall mean the Escrow
Agreement in the form attached to the Caterair Holdings Subordination Agreement.
"Caterair Holdings Secured Note" shall mean the New Senior Secured
Note, dated September 29, 1995, issued by Caterair Holdings in the stated
principal amount of $236,200,000, with a stated maturity of December 15, 2004.
"Caterair Holdings Subordination Agreement" shall have the meaning
provided in Section 5.17.
"Caterair Holdings Unsecured Debentures" shall mean the Senior
Debenture, dated September 29, 1995, issued by Caterair Holdings in the stated
principal amount of $43,800,000, with a maturity date of December 15, 2001,
together with each debenture permitted to be issued pursuant to Section 8.13(b).
"Caterair New Zealand" shall mean Caterair New Zealand Limited, a
Delaware corporation.
"Caterair Portugal" shall mean Caterair Por-Catering de Portugal,
S.A., a Portuguese corporation.
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"Catering Agreements" shall mean all catering agreements or
arrangements with airline companies to which OFSI, Caterair Holdings, the
Borrower or any Subsidiary of the Borrower or Caterair Holdings is a party.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 et seq.
"Change of Control" shall mean at any time (i) the Permitted Holders
(individually or collectively) shall cease to own (directly or indirectly) in
the aggregate at least 51% on a fully diluted basis of the voting interests of
OFSI, (ii) the Permitted Holders (individually or collectively) shall cease to
own (directly or indirectly) in the aggregate at least 35% on a fully diluted
basis of the economic interests in OFSI, (iii) OFSI shall cease to own on a
fully diluted basis 100% of the economic and voting interests of the Borrower,
(iv) the Permitted Holders (individually or collectively) shall cease to own
(directly or indirectly) in the aggregate at least 51% on a fully diluted basis
of the voting interests of Caterair Holdings, (v) Caterair Holdings shall cease
to own on a fully diluted basis 100% of the economic and voting interests of
Caterair or (vi) any "change of control" or similar event shall occur under the
Senior Subordinated Notes Indentures.
"CII" shall mean Caterair International, Inc. (II), a Delaware
corporation and a Wholly-Owned Domestic Subsidiary of the Borrower.
"Class B Assets" shall mean those assets owned by OFSI listed on
Schedule VIII.
"Co-Agent" shall have the meaning provided in the first paragraph of
this Agreement.
"Co-Arranger" shall have the meaning provided in the first paragraph
of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time. Section references to the Code are to the Code, as in effect at
the date of this Agreement, and to any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or personal) with
respect to which any security interests have been granted (or purported to be
granted) pursuant to any Security Document, including, without limitation, all
Pledge Agreement
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Collateral, all Security Agreement Collateral, all Mortgaged Properties and all
cash and Cash Equivalents delivered as collateral pursuant to Section 4.02 or 10
or pursuant to any Security Document.
"Collateral Agent" shall mean ▇▇▇▇▇▇ acting as collateral agent for
the Secured Creditors pursuant to the Security Documents, and any successor
thereto appointed pursuant to the terms of the respective Security Documents.
"Combined EBIT" shall mean, for any period, the Combined Net Income
of the Borrower before consolidated interest expense of the Borrower and its
Subsidiaries and provision for taxes and without giving effect to (i) any
extraordinary gains or losses or gains or losses from sales of assets other than
from sales of inventory in the ordinary course of business, (ii) any
nonrecurring cash charges incurred by the Borrower in connection with (x) the
consummation of the transactions contemplated by the Master Agreement
(including, without limitation, (A) severance payments and other employee costs
and (B) external consulting services primarily associated with the
implementation of labor savings programs) in an aggregate amount not to exceed
$51,800,000 and (y) the integration costs related to the Flight Kitchen's
operated (or previously operated) by CII and the New Zealand acquisition
consummated in August 1997 in an aggregate amount not to exceed $16,200,000 and
(iii) any charges incurred in connection with one or more stock bonus or
management plans approved by the Board of Directors of OFSI in an aggregate
amount not to exceed $35,000,000.
"Combined EBITDA" shall mean, for any period, Combined EBIT,
adjusted by adding thereto the amount of all amortization of intangibles and
depreciation that were deducted in arriving at Combined EBIT for such period, it
being understood and agreed that for purposes of this Agreement, (i) the
Combined EBITDA for the fiscal quarter ended on December 31, 1996 shall be
$38,557,000, (ii) the Combined EBITDA for the fiscal quarter ended on March 31,
1997 shall be $28,066,000 and (iii) the Combined EBITDA for the fiscal quarter
ended on June 30, 1997 shall be $38,653,000.
"Combined Indebtedness" shall mean, at any time, the amount of all
Indebtedness of each of the Borrower and its Subsidiaries determined on a
consolidated basis and Caterair and its Subsidiaries determined on a
consolidated basis as would be required to be reflected on the liability side of
a balance sheet as prepared in accordance with generally accepted accounting
principles at such time, but including, in any event, (x) all bankers
acceptances and letters of credit (including Letters of Credit) and Loans and
(y) Contingent Obligations in respect of Indebtedness of the type described
above in this description, provided, that there shall be excluded any
outstanding Indebtedness in respect of any intercompany loan or Non-Compete
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Agreement between the Borrower and its Subsidiaries, on the one hand, and
Caterair and its Subsidiaries, on the other hand.
"Combined Interest Coverage Ratio" for any period shall mean the
ratio of (x) Combined EBITDA for such period to (y) Combined Interest Expense
for such period.
"Combined Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Borrower and its Subsidiaries for such
period and Caterair and its Subsidiaries for such period (in each case
calculated without regard to any limitations on the payment thereof) plus,
without duplication, that portion of Capitalized Lease Obligations of the
Borrower and its Subsidiaries and Caterair and its Subsidiaries representing the
interest factor for such period, provided, that there shall be excluded (x) any
interest expense associated with any intercompany loan between the Borrower and
its Subsidiaries, on the one hand, and Caterair and its Subsidiaries, on the
other hand and (y) any non-cash interest expense for such period related to
deferred compensation, customer settlements, idle Flight Kitchens and finance
fees.
"Combined Leverage Ratio" shall mean, at any time, the ratio of
Combined Indebtedness at such time to Combined EBITDA for the then most recently
ended Test Period, provided, however, (i) for the period from the Restatement
Effective Date through and including September 30, 1997, there shall be excluded
from the calculation of the Combined Leverage Ratio that aggregate principal
amount of outstanding 13% Senior Subordinated Notes to the extent that (and for
so long as) the Borrower has cash and/or Cash Equivalents on hand in an amount
equal to the aggregate principal amount of 13% Senior Subordinated Notes so
excluded from this calculation and (ii) after September 30, 1997, there shall be
excluded from the calculation of the Combined Leverage Ratio that aggregate
principal amount of outstanding 13% Senior Subordinated Notes to the extent that
(and for so long as) cash and/or Cash Equivalents are on deposit with the
Collateral Agent pursuant to the Bank Escrow Agreement in an amount equal to the
aggregate principal amount of 13% Senior Subordinated Notes so excluded from
this calculation.
"Combined Net Income" of any Person shall mean, for any period, the
net income of such Person and its Subsidiaries for such period after deduction
for minority interests but before, in the case of the Borrower, the rental and
other expenses of the Borrower and its Subsidiaries associated with the Lease
Agreements, the License Agreements and the Non-Compete Agreement to the extent
that such amounts were paid to Caterair or a Wholly-Owned Subsidiary thereof
(and not otherwise passed through to an unrelated third Person) and reduced net
income of the Borrower for such period, provided that (i) the net income (or
loss) of any Subsidiary of such Person which is
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accounted for by such Person by the equity method of accounting shall be
included only to the extent of the amount of cash dividends or distributions
actually paid to such Person or a Wholly-Owned Subsidiary thereof and net of any
investments made by such Person or Wholly-Owned Subsidiary, (ii) the net income
(or loss) of any Subsidiary acquired by such Person or a Subsidiary thereof in a
pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded, (iii) the consolidated net income of the Borrower
shall not include any amounts representing interest received or accrued on
promissory notes (including the SCIS/Caterair Note) or other advances payable to
the Borrower or any of its Subsidiaries by Caterair Holdings or any of its
Subsidiaries or any amounts attributable to the Borrower or any of its
Subsidiaries by reason of their ownership interest (direct or indirect), if any,
in Caterair or any of its Subsidiaries, (iv) notwithstanding preceding clause
(iii), the consolidated net income of the Borrower for any period shall include,
to the extent not already included therein, the interest income of Caterair from
sources other than the Borrower and its Subsidiaries less the amount of selling,
general and administrative expenses of Caterair for such period, (v) the net
income of any Subsidiary of such Person shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary
of its income is not at the time permitted by operation of the terms of its
charter or any agreement, instrument or law applicable to such Subsidiary, (vi)
the consolidated net income of such Person for any period shall be reduced by
the amount of Dividends paid by such Person pursuant to Sections 9.03(iv), (vi)
and (vii), as the case may be, during such period, (vii) the consolidated net
income of the Borrower shall be reduced by any cash payments related to customer
concessions (other than up to $8,000,000 paid to customers other than American
Airlines) but only to the extent that such payments have not already reduced
such consolidated net income and (viii) the consolidated net income of the
Borrower for any period shall be reduced by the amount of rental expense for
such period related to the write-off of idle Flight Kitchens to the extent not
otherwise reducing Combined Net Income for such period.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Consent Solicitation" shall mean the solicitation of 13% Senior
Subordinated Note Consents to amend the 13% Senior Subordinated Note Indenture
performed by or on behalf of the Borrower simultaneously with the 13% Senior
Subordinated Note Tender Offer.
"Consent Solicitation Documents" shall mean each of the documents
distributed to holders of the 13% Senior Subordinated Notes or otherwise entered
into by the Borrower or any of such holders in connection with the consummation
of the
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Consent Solicitation, including, without limitation, the 13% Senior Subordinated
Note Consent and the 13% Senior Subordinated Note Indenture Supplement.
"Contingent Obligation" shall mean, as to any Person, any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing (including, without limitation, as a result of such Person being a
general partner of the other Person, unless the underlying obligation of such
partnership relates to liabilities other than Indebtedness or is expressly made
non-recourse as to such general partner or recourse is limited solely to the
equity interest of such general partner in such partnership) any Indebtedness or
other obligation of any other Person and, without limiting the generality of the
foregoing, any obligation or commitment, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation (whether
arising by virtue of partnership arrangements, by agreement to keepwell, to
purchase assets, goods, securities or services, to take-or-pay or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect the obligee against loss
in respect thereof (in whole or in part), provided that the term Contingent
Obligations shall not include endorsements for collection or deposit in the
ordinary course of business.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, the Subsidiaries Guaranty, the Designated Onex Sub Guaranty, each Security
Document, the Caterair Holdings Subordination Agreement and the Caterair
Holdings Escrow Agreement.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" shall mean OFSI, the Borrower, Caterair Holdings,
Caterair and each other Subsidiary Guarantor and, solely for purposes of
Sections 10.07 and 10.08, the Designated Onex Sub.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
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"Designated Acquisition" shall mean any acquisition made pursuant to
Section 9.02(xiii).
"Designated Guaranty" shall mean any guaranty given (and any
payments made thereunder) by the Borrower and its Wholly-Owned Domestic
Subsidiaries in support of Indebtedness and other obligations of
non-Wholly-Owned Subsidiaries and Wholly-Owned Foreign Subsidiaries of the
Borrower.
"Designated Investment" shall mean any Investment made by the
Borrower or any of its Wholly-Owned Domestic Subsidiaries in, to or for the
benefit of, any Wholly-Owned Foreign Subsidiary of the Borrower pursuant to
clause (y) of the proviso in Section 9.05(vii), pursuant to the proviso in
Section 9.05(xv) or pursuant to Section 9.05(xvi).
"Designated Onex Sub" shall mean Onex OFSI Holdings Inc., a
corporation incorporated under the laws of the Province of Ontario and a
Subsidiary of Onex.
"Designated Onex Sub Guaranty" shall have the meaning provided in
Section 5.11.
"Designated Onex Sub Pledge Agreement" shall have the meaning
provided in Section 5.08.
"Dividend" with respect to any Person shall mean that such Person
has declared or paid a dividend or returned any equity capital to its
stockholders or authorized or made any other distribution, payment or delivery
of property (other than common stock of such Person) or cash to its stockholders
as such, or redeemed, retired, purchased or otherwise acquired, directly or
indirectly, for a consideration any shares of any class of its capital stock
outstanding on or after the Restatement Effective Date (or any options or
warrants issued by such Person with respect to its capital stock), or set aside
any funds for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the capital stock of such Person outstanding on or after the
Restatement Effective Date (or any options or warrants issued by such Person
with respect to its capital stock). Without limiting the foregoing, "Dividends"
with respect to any Person shall also include all payments made or required to
be made by such Person with respect to any stock appreciation rights, plans,
equity incentive or achievement plans or any similar plans or setting aside of
any funds for the foregoing purposes.
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"Documents" shall mean the Credit Documents, the Caterair Credit
Documents, the Senior Subordinated Note Documents, the 13% Senior Subordinated
Note Documents and the Consent Solicitation Documents.
"Dollar Equivalent" shall mean, at any time of determination
thereof, the amount of Dollars which could be purchased with the amount of
currency involved in such computation at the spot exchange rate therefor as
published in the Eastern edition of The Wall Street Journal on the date one
Business Day subsequent to the date of any determination thereof, provided that
if the Eastern edition of The Wall Street Journal is not published on such date,
reference shall be made to such rate as set forth in the most recently published
Eastern edition of The Wall Street Journal, and provided further, that if at any
time the Eastern edition of The Wall Street Journal ceases to publish such
exchange rates, the Dollar Equivalent shall be the amount of Dollars which could
be purchased with the amount of currency involved in such computation at the
spot rate therefor as quoted by the Administrative Agent at approximately 11:00
a.m. (London time) on the date two Business Days prior to the date of any
determination thereof for purchase on such date, it being understood and agreed
that for purposes of determining compliance with this Agreement (including
Sections 1.01(a), 1.01(b), 2.01(c), 4.02(a) and 9.04(xi)) the Dollar Equivalent
of any Third-Party Foreign Subsidiary Indebtedness incurred in a currency other
than Dollars shall be the Dollar Equivalent thereof as in effect on the last
Business Day of the then most recently ended fiscal month of the Borrower and
such Dollar Equivalent shall remain in effect until same is recalculated as of
the last Business Day of the immediately succeeding fiscal month.
"Dollars" and the sign "$" shall each mean freely transferable legal
tender of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower or
Caterair Holdings incorporated or organized in the United States or any state or
territory thereof.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Eligible Transferee" shall mean and include a commercial bank, a
financial institution, a "qualified institutional buyer" (as defined in the
Securities Act), or a fund which is regularly engaged in making, purchasing or
investing in loans or securities.
"End Date" shall mean, for any Margin Reduction Period, the last day
of such Margin Reduction Period.
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"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any governmental agency seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, guideline,
written policy and rule of common law now or hereafter in effect and in each
case as amended, and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment,
relating to the environment, employee health and safety or Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Federal Water Pollution Control
Act, 33 U.S.C. ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss.
2601 et seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the Safe Drinking
Water Act, 42 U.S.C. ss. 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C.
ss. 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of
1986, 42 U.S.C. ss. 11001 et seq., the Hazardous Material Transportation Act, 49
U.S.C. ss. 1801 et seq. and the Occupational Safety and Health Act, 29 U.S.C.
ss. 651 et seq. (to the extent it regulates occupational exposure to Hazardous
Materials); and any state and local or foreign counterparts or equivalents, in
each case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time. Section references to ERISA are to ERISA, as
in effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with OFSI, Caterair Holdings or a Subsidiary of OFSI or
Caterair Holdings would be deemed to be a "single employer" (i) within the
meaning of Section 414(b),(c), (m) or (o) of the Code or (ii) as a result of
OFSI, Caterair Holdings or a Subsidiary of OFSI or Caterair Holdings being or
having been a general partner of such person.
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"Eurodollar Loan" shall mean each Revolving Loan designated as such
by the Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean (a) the arithmetic average (rounded
upward to the nearest 1/100 of 1%) of the offered quotation to first-class banks
in the London interbank Eurodollar market by each Reference Bank for Dollar
deposits of amounts in immediately available funds comparable to the outstanding
principal amount of the Eurodollar Loan of such Reference Bank with maturities
comparable to the Interest Period applicable to such Eurodollar Loan commencing
two Business Days thereafter as of 11:00 A.M. (London time) on the date which is
two Business Days prior to the commencement of such Interest Period, divided
(and rounded upward to the nearest 1/100 of 1%) by (b) a percentage equal to
100% minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves required by applicable law) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D); provided, that if one or more of the Reference Banks fail to
provide the Administrative Agent with its aforesaid rate, then the Eurodollar
Rate shall be determined based on the rate or rates provided to the
Administrative Agent by the other Reference Bank or Banks.
"Event of Default" shall have the meaning provided in Section 10.
"Existing Indebtedness" shall have the meaning provided in Section
7.22(a).
"Existing Investments" shall have the meaning provided in Section
9.05(vi).
"Existing Letters of Credit" shall have the meaning provided in
Section 2.01(a).
"Existing Mortgaged Properties" shall mean all Real Property of the
Credit Parties listed on Schedule III and designated as "Existing Mortgaged
Properties" therein.
"Existing Mortgages" shall mean all Mortgages granted by the Credit
Parties pursuant to the Original Credit Agreement and which have not been
released by the lenders thereunder prior to the Restatement Effective Date.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
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"Federal Funds Rate" shall mean for any period, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal for each day
during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Administrative Agent as determined by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"Final Maturity Date" shall mean August 28, 2002.
"Financial Projections" shall have the meaning provided in Section
7.05(d).
"Flight Kitchens" shall mean the in-flight catering kitchens
operated by the Borrower, Caterair or any of their respective Subsidiaries.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by OFSI, Caterair Holdings or
any one or more of their respective Subsidiaries primarily for the benefit of
employees of OFSI, Caterair Holdings or such Subsidiaries residing outside the
United States of America, which plan, fund or other similar program provides, or
results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan
is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower or
Caterair Holdings that is incorporated under the laws of any jurisdiction other
than the United States of America or any State thereof.
"General Pledge Agreement" shall have the meaning provided in
Section 5.08.
"Guaranteed Obligations" shall mean the irrevocable and
unconditional guaranty made by OFSI under the OFSI Guaranty (i) to each Agent,
the Collateral Agent and each Bank for the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of the principal
and interest on each Note issued
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by the Borrower to such Bank, and Loans made, under this Agreement and all
reimbursement obligations in respect of Drawings on Letters of Credit, together
with all the other obligations and liabilities (including, without limitation,
indemnities, fees and interest thereon) of the Borrower to each Agent, the
Collateral Agent and each Bank now existing or hereafter incurred under, arising
out of or in connection with this Agreement or any other Credit Document and the
due performance and compliance with the terms of the Credit Documents by the
Borrower and (ii) to each Other Creditor which has entered into, or in the
future enters into, an Interest Rate Protection Agreement or Other Hedging
Agreement with the Borrower or any of its Subsidiaries, the full and prompt
payment when due (whether by acceleration or otherwise) of all obligations of
the Borrower or any of its Subsidiaries owing under, or with respect to, any
such Interest Rate Protection Agreement or Other Hedging Agreement, whether now
in existence or hereafter arising, and the due performance and compliance with
all terms, conditions and agreements contained therein.
"Guaranties" shall mean the OFSI Guaranty, the Designated Onex Sub
Guaranty and the Subsidiaries Guaranty.
"Guarantor" shall mean OFSI, the Designated Onex Sub and each
Subsidiary Guarantor (including Caterair).
"Hazardous Materials" shall mean (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous substances," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," or "pollutants," or
words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority under Environmental Laws.
"IFSC" shall mean SC International Services Ireland, an Irish
corporation and a Wholly-Owned Foreign Subsidiary of the Borrower.
"Immaterial Subsidiary" shall mean any Subsidiary of the Borrower
(other than Sky Chefs and CII) or Caterair that does not have assets with a
value in excess of $15,000,000 and has not had revenues in excess of $15,000,000
for the Test Period then most recently ended and whose obligations are
non-recourse to OFSI, Caterair Holdings, the Borrower or any other Subsidiary of
Caterair Holdings or the
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Borrower; provided that at such time as Immaterial Subsidiaries with aggregate
assets with a value in excess of $30,000,000 and aggregate revenues in excess of
$30,000,000 for any Test Period and who were subject to any Default or Event of
Default under Section 10.04, 10.05 and/or 10.09, then from and after such time,
no additional Subsidiary of the Borrower will be considered an Immaterial
Subsidiary under this Agreement even though such Subsidiary might otherwise
satisfy the conditions set forth above in this definition.
"Indebtedness" shall mean, as to any Person, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v) all
obligations of such Person to reimburse or repay any bank or other Person in
respect of amounts paid or available to be drawn under a letter of credit or
banker's acceptance (each such obligation to be valued at the face amount of
such instrument), (vi) all Indebtedness of others secured by a Lien on any asset
of such Person, (vii) all Contingent Obligations of such Person and (viii) all
obligations under any Interest Rate Protection Agreement or Other Hedging
Agreement or under any similar type of agreement.
"Intercompany Note" shall have the meaning provided in Section
9.05(vii).
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedging agreement, interest rate floor agreement or other similar
agreement or arrangement.
"Interest Reduction Discount" shall mean (i) for the period from the
Restatement Effective Date through but not including the first Start Date, 1/4
of 1% and (ii) from and after any Start Date to and including the corresponding
End Date, the percentage set forth in clause (A), (B) or (C) below if, but only
if, as of the Test Date
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for such Start Date the applicable condition set forth in clause (A), (B) or (C)
below, as the case may be, is met:
(A) 1/4 of 1% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date is
less than or equal to 4.25:1.00 and greater than 3.50:1.00;
(B) 3/8 of 1% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date is
less than or equal to 3.50:1.00 and greater than 3.00:1.00; or
(C) 5/8 of 1% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date is
less than or equal to 3.00:1.00.
Notwithstanding anything to the contrary above in this definition, the Interest
Reduction Discount shall be zero at all times when (i) a Default under Section
8.01(b), 8.01(c), 10.01 or 10.05 shall exist or (ii) any Event of Default shall
exist.
"Investments" shall have the meaning provided in Section 9.05.
"Issuing Bank" shall mean BNY, provided that, in the event BNY is
unable to issue any Letter of Credit by reason of any circumstance described in
clause (i) of the proviso to Section 2.01(b), the term Issuing Bank shall also
include ▇▇▇▇▇▇, BTCo and any other Bank which at the request of the Borrower and
with the consent of the Administrative Agent agrees, in such Bank's sole
discretion, to become an Issuing Bank for the purpose of issuing Letters of
Credit pursuant to Section 2.
"L/C Supportable Indebtedness" shall mean all obligations of the
Borrower, Caterair or their respective Subsidiaries incurred for their working
capital and general corporate purposes.
"Lease Agreements" shall mean each of the leases entered into by Sky
Chefs, CII and Caterair pursuant to the Master Agreement and substantially in
the form of Exhibit 2.2(k) to the Master Agreement with respect to the Leased
Assets.
"Leased Assets" shall mean the premises and property set forth on
Schedule 2.2(k) to the Master Agreement, including all or substantially all of
the Leasehold interests and tangible assets of Caterair related thereto.
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"Leaseholds" of any Person means all the right, title and interest
of such Person as lessee or licensee in, to and under any lease.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding Letters of Credit and (ii)
the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"License Agreements" shall mean each of the license agreements
entered into by Sky Chefs, CII and Caterair pursuant to the Master Agreement and
substantially in the form of Exhibit 2.2(o) to the Master Agreement, which
license agreements relate to the Licensed Assets.
"Licensed Assets" shall mean the properties set forth on Schedule
2.2(o) to the Master Agreement.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Revolving Loan and each Swingline Loan.
"LSG/Lufthansa" shall mean LSG/Lufthansa Service GmbH, a company
organized under the laws of the Federal Republic of Germany.
"Lufthansa" shall mean Deutsch Lufthansa AG, an Aktiengesellschaft
organized under the laws of the Federal Republic of Germany.
"Lufthansa Companies" shall mean LSG/Lufthansa and one or more of
its Subsidiaries.
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"Mandatory Borrowing" shall have the meaning provided in Section
1.01(c).
"Margin Reduction Period" shall mean each period which shall
commence on a date on which the financial statements are delivered pursuant to
Section 8.01(b) or Section 8.01(c), as the case may be, and which shall end on
the earlier of (i) the date of actual delivery of the next financial statements
pursuant to Section 8.01(b) or Section 8.01(c), as the case may be, and (ii) the
latest date on which the next financial statements are required to be delivered
pursuant to Section 8.01(b) or Section 8.01(c), as the case may be; provided
that the first Margin Reduction Period shall commence on the date of delivery of
the financial statements in respect of the fiscal quarter of the Borrower ending
on December 31, 1997.
"Margin Stock" shall have the meaning provided in Regulation U.
"Master Agreement" shall mean the Master Agreement, dated as of
April 26, 1995, as amended in accordance with the terms hereof and thereof,
among OFSI, Caterair Holdings and Caterair.
"Maximum Swingline Amount" shall mean $15,000,000.
"Minimum Borrowing Amount" shall mean (i) in the case of Revolving
Loans, $3,000,000, and (ii) in the case of Swingline Loans, $500,000.
"▇▇▇▇▇'▇" shall have the meaning provided in the definition of Cash
Equivalents.
"▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇ Guaranty Trust Company of New York, in
its individual capacity.
"Mortgage" shall mean each mortgage, deed to secure debt or deed of
trust pursuant to which any Credit Party shall have granted to the Collateral
Agent a mortgage lien on such Credit Party's Mortgaged Property.
"Mortgage Amendments" shall have the meaning provided in Section
5.10.
"Mortgage Policy" shall mean each mortgage title insurance policy in
form and substance reasonably satisfactory to the Administrative Agent insuring
the mortgage lien on each Mortgage Property.
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"Mortgaged Property" shall mean each Real Property owned or leased
by any Credit Party designated as a Mortgaged Property on Schedule IV or
pursuant to Section 8.11(a).
"NAIC" shall mean the National Association of Insurance
Commissioners.
"Net Sale Proceeds" shall mean for any sale of assets, the gross
cash proceeds (including any cash received by way of deferred payment pursuant
to a promissory note, receivable or otherwise (but only as and when received))
received from any sale of assets, net of reasonable transaction costs, the
amount of such gross cash proceeds required to be used to repay any Indebtedness
(other than Indebtedness of the Banks pursuant to this Agreement and
Indebtedness under the Caterair Credit Agreement) which is secured by the
respective assets which were sold, the amount of such gross cash proceeds that
are in good faith reserved for post-closing adjustments (it being understood and
agreed that on the day that all such post-closing adjustments have been
determined definitively, the amount (if any) by which the reserved amount in
respect of such asset sale exceeds the actual post-closing adjustments payable,
shall constitute Net Sale Proceeds on such date), and the estimated marginal
increase in income taxes which will be payable by OFSI's or Caterair Holdings'
respective consolidated group with respect to the fiscal year in which the sale
occurs as a result of such sale.
"9-1/4% Senior Subordinated Note Documents" shall mean the 9-1/4%
Senior Subordinated Notes, the 9-1/4% Senior Subordinated Note Indenture and all
other documents and agreements executed and delivered in connection therewith.
"9-1/4% Senior Subordinated Note Indenture" shall mean the
Indenture, dated as of August 15, 1997, between the Borrower and The Bank of New
York, as Trustee, as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"9-1/4% Senior Subordinated Notes" shall mean the Borrower's 9-1/4%
Senior Subordinated Notes due 2007 in aggregate principal amount of $300,000,000
issued pursuant to the 9-1/4% Senior Subordinated Note Indenture.
"Non-Compete Agreement" shall mean the Non-Compete Agreement, dated
as of September 29, 1995, between Sky Chefs and Caterair.
"Non-Defaulting Bank" shall mean and include each Bank other than a
Defaulting Bank.
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"Non-SCIS Subsidiary" shall mean each Subsidiary of OFSI other than
the Borrower and its Subsidiaries and Caterair Holdings and its Subsidiaries.
"Non-SCIS Tax Sharing Agreement" shall mean each tax sharing
agreement entered into by and among OFSI and any of its Non-SCIS Subsidiaries.
"Note" shall mean each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent,
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc., located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or such other office as the
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"Obligations" shall mean all amounts owing to any of the Agents, the
Co-Arrangers, the Collateral Agent, any Issuing Bank or any Bank pursuant to the
terms of this Agreement or any other Credit Document.
"OFSI" shall have the meaning provided in the first paragraph of
this Agreement.
"OFSI Class A Common Stock" shall have the meaning provided in
Section 7.14(a).
"OFSI Class B Common Stock" shall have the meaning provided in
Section 7.14(a).
"OFSI Pledge Agreement" shall have the meaning provided in Section
5.08.
"OFSI Guaranty" shall mean the guaranty made by OFSI pursuant to
Section 14.
"OFSI/SCIS Tax Sharing Agreement" shall mean the Tax Sharing
Agreement, dated September 29, 1995, among OFSI, the Borrower, Sky Chefs and
CII.
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"OnCap" shall mean OnCap Holding Corp., a corporation incorporated
under the laws of Ontario.
"Onex" shall mean Onex Corporation, a corporation incorporated under
the laws of Ontario.
"Onex Capital" shall mean Onex Capital Corporation, a corporation
incorporated under the laws of Ontario.
"Operating Agreements" shall mean those Operating Agreements, each
dated as of September 29, 1995, between Sky Chefs and Caterair.
"Original Banks" shall mean the lenders party to the Original Credit
Agreement in their capacity as such.
"Original Credit Agreement" shall have the meaning provided in the
first WHEREAS clause of this Agreement.
"Other Creditor" shall have the meaning provided in the Security
Documents.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency values.
"Participant" shall have the meaning provided in Section 2.04(a).
"Payment Office" shall mean the office of the Administrative Agent
located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other office
as the Administrative Agent may hereafter designate in writing as such to the
other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Amount" for any fiscal year of the Borrower shall mean
(i) for fiscal year 1997, $20,000,000, (ii) for fiscal year 1998, $40,000,000
and (iii) for each fiscal year thereafter, $45,000,000.
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"Permitted Encumbrance" shall mean, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the Mortgage Policy
delivered with respect thereto, all of which exceptions must be reasonably
acceptable to the Agents.
"Permitted Holders" shall mean (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, (ii) Onex,
(iii) OnCap, (iv) Lufthansa and/or (v) LSG/Lufthansa.
"Permitted Liens" shall have the meaning provided in Section 9.01.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan, as
defined in Section 4001 of ERISA (other than a Foreign Pension Plan), which is
maintained or contributed to by (or to which there is an obligation to
contribute of), OFSI, Caterair Holdings or a Subsidiary or an ERISA Affiliate of
OFSI or Caterair Holdings, and each such plan for the five year period
immediately following the latest date on which OFSI, Caterair Holdings or a
Subsidiary or an ERISA Affiliate of OFSI or Caterair Holdings maintained,
contributed to or had an obligation to contribute to such plan.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in the Pledge Agreements.
"Pledge Agreements" shall mean the OFSI Pledge Agreement, the
Designated Onex Sub Pledge Agreement and the General Pledge Agreement.
"Pledged Securities" shall mean all "Pledged Securities" as defined
in the Pledge Agreements.
"Prime Lending Rate" shall mean the rate which ▇▇▇▇▇▇ announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. ▇▇▇▇▇▇ may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Purchase Option" shall collectively refer to the option given to
Sky Chefs and CII pursuant to the Lease Agreements and the License Agreements to
purchase the Leased Assets and the Licensed Assets.
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"Quarterly Payment Date" shall mean the 15th day of each March,
June, September and December occurring after the Restatement Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. ss. 6901 et seq.
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by OFSI, Caterair Holdings,
the Borrower or any Subsidiary of Caterair Holdings or the Borrower of any cash
insurance proceeds or condemnation award payable by reason of theft, loss,
physical destruction or damage or any other similar event with respect to any
property or assets of OFSI, Caterair Holdings, the Borrower or any Subsidiary of
Caterair Holdings or the Borrower other than proceeds received by OFSI in
respect of the Class B Assets or its equity interests in Non-SCIS Subsidiaries.
"Reference Banks" shall mean ▇▇▇▇▇▇, BTCo and BNY.
"Register" shall have the meaning provided in Section 13.16.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
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"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing or migration into the environment.
"Renex" shall mean Renex Corporation, a Cayman Islands corporation.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c)
of ERISA with respect to a Plan described in PBGC Regulation Section 2615.1(b)
other than those events as to which the 30-day notice period is waived under
subsection .13, .14, .16, .18, .19 or .20 of PBGC Regulation Section 2615.
"Required Banks" shall mean collectively (and not individually)
Non-Defaulting Banks the sum of whose Revolving Loan Commitments (or, if after
the Total Revolving Loan Commitment has been terminated, outstanding Revolving
Loans and Adjusted RL Percentage of outstanding Swingline Loans and Letter of
Credit Outstandings) represent an amount greater than fifty percent of the sum
of the Adjusted Total Revolving Loan Commitment (or, if after the Total
Revolving Loan Commitment has been terminated, the sum of the then total
outstanding Revolving Loans of Non-Defaulting Banks and the aggregate Adjusted
RL Percentages of all Non-Defaulting Banks of the total outstanding Swingline
Loans and Letter of Credit Outstandings at such time).
"Restatement Effective Date" shall have the meaning provided in
Section 13.10.
"Returns" shall have the meaning provided in Section 7.09.
"Revolving Loan" shall have the meaning provided in Section 1.01(a).
"Revolving Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name in Schedule I directly below the column
entitled "Revolving Loan Commitment," as same may be (x) reduced from time to
time pursuant to Sections 3.02, 3.03 and/or 10 or (y) adjusted from time to time
as a result of assignments to or from such Bank pursuant to Section 1.13 or
13.04(b).
"Revolving Note" shall have the meaning provided in Section 1.05(a).
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"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that, if the RL Percentage of
any Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the RL Percentages of the Banks shall be determined immediately
prior (and without giving effect) to such termination.
"S&P" shall have the meaning provided in the definition of Cash
Equivalents.
"SCIS/Caterair Loan shall mean the $37,788,000 subordinated loan
previously made by the Borrower to Caterair and evidenced by the SCIS/Caterair
Note.
"SCIS/Caterair Note" shall mean the 8% Pay-in-kind Promissory Note
due 2001 issued by the Borrower to Caterair.
"SCIS Subsidiaries" shall mean the Subsidiaries of the Borrower.
"SEC" shall have the meaning provided in Section 8.01(h).
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b).
"Secured Creditors" shall have the meaning provided in the
respective Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section
5.09.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Documents" shall mean the Pledge Agreements, the Security
Agreement, each Mortgage and, after the execution and delivery thereof, the Bank
Escrow Agreement.
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"Senior Subordinated Note Documents" shall mean the 13% Senior
Subordinated Note Documents and the 9-1/4% Senior Subordinated Note Documents.
"Senior Subordinated Notes" shall mean the 13% Senior Subordinated
Notes and the 9-1/4% Senior Subordinated Notes.
"Senior Subordinated Notes Indenture" shall mean the 13% Senior
Subordinated Note Indenture and the 9-1/4% Senior Subordinated Note Indenture.
"Sky Chefs" shall mean Sky Chefs, Inc., a Delaware corporation.
"Sky Chefs/Caterair Management Agreement" shall mean the Advisory
and Administrative Services Agreement, dated as of September 29, 1995, between
Sky Chefs and Caterair or a Wholly-Owned Domestic Subsidiary thereof.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Start Date" shall mean, with respect to any Margin Reduction
Period, the first day of such Margin Reduction Period.
"Stated Amount" of each Letter of Credit shall, at any time, mean
the maximum amount available to be drawn thereunder (in each case determined
without regard to whether any conditions to drawing could then be met).
"Subordinated Intercompany Security Agreement" shall mean the
Subordinated Security Agreement, dated as of September 29, 1995, between
Caterair and the Borrower.
"Subsidiaries Guaranty" shall have the meaning provided in Section
5.11.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time.
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"Subsidiary Guarantor" shall mean each Wholly-Owned Domestic
Subsidiary of the Borrower and Caterair Holdings (including Caterair).
"Swingline Bank" shall mean ▇▇▇▇▇▇.
"Swingline Expiry Date" shall mean the date occurring two Business
Days prior to the Final Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(b).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Syndication Date" shall mean the date upon which the Co-Arrangers
determine in their sole discretion that the primary syndication (and resultant
addition of institutions as Banks pursuant to Section 13.04) has been completed.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Period" shall mean the four consecutive fiscal quarters of the
Borrower then last ended (taken as one accounting period).
"Third-Party Foreign Subsidiary Indebtedness" shall have the meaning
provided in Section 9.04(xi).
"13% Senior Subordinated Note Consent" shall mean each written
consent permitting the Borrower to enter into the 13% Senior Subordinated Note
Indenture Supplement from a holder of one or more 13% Senior Subordinated Notes
outstanding on the record date for determining those holders entitled to consent
to such 13% Senior Subordinated Note Indenture Supplement.
"13% Senior Subordinated Note Indenture" shall mean the Indenture,
dated as of September 15, 1995, between the Borrower and The Bank of New York,
as Trustee, as amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof.
"13% Senior Subordinated Note Indenture Supplement" shall mean the
Supplemental Indenture to the 13% Senior Subordinated Note Indenture entered
into by
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the Borrower and the 13% Senior Subordinated Note Indenture Trustee in
connection with the Consent Solicitation.
"13% Senior Subordinated Note Indenture Trustee" shall mean The Bank
of New York.
"13% Senior Subordinated Notes" shall mean the Borrower's 13% Senior
Subordinated Notes due 2005 in aggregate principal amount of $125,000,000 issued
pursuant to the 13% Senior Subordinated Note Indenture.
"13% Senior Subordinated Note Tender Offer" shall mean the offer by
the Borrower to purchase for cash any and all of the 13% Senior Subordinated
Notes, the foregoing to be effected pursuant to the 13% Senior Subordinated Note
Tender Offer Documents.
"13% Senior Subordinated Note Tender Offer Documents" shall mean the
offer to purchase distributed by the Borrower in connection with the 13% Senior
Subordinated Note Tender Offer, and all amendments and exhibits thereto, and all
documents related to any of the foregoing filed with the SEC or distributed to
the holders (or representatives) of the 13% Senior Subordinated Notes in
connection with the 13% Senior Subordinated Note Tender Offer.
"13% Senior Subordinated Note Tender Offer Expiration Date" shall
have the meaning provided in Section 5.18.
"Total Available Revolving Loan Commitment" shall mean, at any time,
the Total Revolving Loan Commitment at such time less the Blocked Commitment at
such time.
"Total Revolving Loan Commitment" shall mean, at any time, the sum
of the Revolving Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at any
time, an amount equal to the remainder of (x) the Total Revolving Loan
Commitment then in effect less (y) the sum of the aggregate principal amount of
Revolving Loans and Swingline Loans then outstanding plus the then aggregate
amount of the Letter of Credit Outstandings.
"Trade Letter of Credit" shall have the meaning provided in Section
2.01(a).
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"Transaction" shall mean (i) the amendment and restatement of the
Original Credit Agreement in the form of this Agreement, (ii) the issuance of
the 9-1/4% Senior Subordinated Notes, (iii) the consummation of the 13% Senior
Subordinated Note Tender Offer and the Consent Solicitation and (iv) the
entering into of the Caterair Credit Agreement and the incurrence of the loans
thereunder on the Restatement Effective Date.
"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year exceeds the fair market
value of the assets allocable thereto, each determined in accordance with
Statement of Financial Accounting Standards No. 35, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan.
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawing" shall have the meaning provided for in Section
2.05(a).
"Unutilized Revolving Loan Commitment" with respect to any Bank, at
any time, shall mean such Bank's Revolving Loan Commitment at such time less the
sum of (i) the aggregate outstanding principal amount of Revolving Loans made by
such Bank and (ii) such Bank's Adjusted RL Percentage of the Letter of Credit
Outstandings.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Foreign Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person (other than
directors' qualifying shares) and (ii) any partnership, association, joint
venture or other entity in
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which such Person and/ or one or more Wholly-Owned Subsidiaries of such Person
has a 100% equity interest at such time (other than directors' qualifying
shares).
SECTION 12. The Agents.
12.01 Appointment. The Banks hereby designate ▇▇▇▇▇▇ as
Administrative Agent (for purposes of this Section 12, the term "Administrative
Agent" shall include ▇▇▇▇▇▇ (and/or any of its affiliates) in its capacity as
Collateral Agent pursuant to any of the Security Documents where it at any time
acts as such) to act as specified herein and in the other Credit Documents. The
Banks hereby designate BTCo as Syndication Agent to act as specified herein and
in the other Credit Documents. Each Bank hereby irrevocably authorizes, and each
holder of any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, any Agent to take such action on its behalf under the provisions of
this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of such Agent by the terms hereof and thereof and such other powers as
are reasonably incidental thereto. Each Agent may perform any of its duties
hereunder or under any of the other Credit Documents by or through its
respective officers, directors, agents, employees or affiliates.
12.02 Nature of Duties. No Agent shall have any duties or
responsibilities except those expressly set forth in this Agreement and the
other Credit Documents. Neither any Agent nor any of its affiliates nor any of
their respective officers, directors, agents or employees shall be liable for
any action taken or omitted by it or them hereunder or under any other Credit
Document or in connection herewith or therewith, (i) with the consent or at the
request of the Required Banks or (ii) in the absence of its or their gross
negligence or willful misconduct. The duties of each Agent shall be mechanical
and administrative in nature; no Agent shall have by reason of this Agreement or
any other Credit Document a fiduciary relationship in respect of any Bank or the
holder of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
any Agent any obligations in respect of this Agreement or any other Credit
Document except as expressly set forth herein or therein.
12.03 Lack of Reliance on the Agents. Independently and without
reliance upon any Agent, each Bank and the holder of each Note, to the extent it
deems appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of the Credit Parties and
each of their Subsidiaries in connection with the making and the continuance of
the Loans and the taking or not taking of any action in connection herewith and
(ii) its own appraisal of the credit-
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worthiness of the Credit Parties and each of their Subsidiaries and, except as
expressly provided in this Agreement, no Agent shall have any duty or
responsibility, either initially or on a continuing basis, to provide any Bank
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. No Agent nor any of its affiliates nor any of
their respective officers, directors, agents or employees shall be responsible
to any Bank or the holder of any Note or any other Person for, or be required or
have any duty to ascertain, inquire or verify the accuracy of, (i) any recitals,
statements, information, representations or warranties herein, in any other
Credit Document or in any document, certificate or other writing delivered in
connection herewith or therewith, (ii) the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document, (iii) the financial
condition of the Credit Parties or any of their Subsidiaries, (iv) the
performance or observance by any Credit Party or any of its Subsidiaries of any
of the terms, provisions or conditions of this Agreement or any other Credit
Document, (v) the satisfaction of any of the conditions precedent set forth in
Section 5 or 6 or (vi) the existence or possible existence of any Default or
Event of Default.
12.04 Certain Rights of the Agents. If any Agent shall request
instructions from the Required Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, such Agent shall be entitled to refrain from such act or taking such
action unless and until such Agent shall have received instructions from the
Required Banks; and such Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Bank or holder of any Note
shall have any right of action whatsoever against any Agent as a result of such
Agent acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Banks.
12.05 Reliance. Each Agent shall be entitled to rely, and shall be
fully protected (and shall have no liability to any Person) in relying, upon any
note, writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document or telephone
message signed, sent or made by any Person that such Agent believed to be the
proper Person, and each Agent may consult with legal counsel (who may be counsel
for the Credit Parties), independent public accountants and other experts
selected by it and shall not be liable to any Person for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
12.06 Indemnification. To the extent any Agent is not reimbursed and
indemnified by the Credit Parties, each Bank will reimburse and indemnify such
Agent,
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its affiliates and their respective officers, directors, agents and employees,
in proportion to their respective "percentages" as used in determining the
Required Banks (determined as if there are no Defaulting Banks), for and against
any and all liabilities, obligations, losses, damages, penalties, claims,
actions, judgments, costs, expenses or disbursements of whatsoever kind or
nature which may be imposed on, asserted against or incurred by such Agent in
performing its respective duties hereunder or under any other Credit Document,
in any way relating to or arising out of this Agreement or any other Credit
Document; provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct.
12.07 Each Agent in its Individual Capacity. With respect to its
obligation to make Loans or issue or participate in Letters of Credit under this
Agreement, each Agent shall have the rights and powers specified herein for a
"Bank" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Banks," "Required Banks,"
"holders of Notes" or any similar terms shall, unless the context clearly
otherwise indicates, include each Agent in its individual capacity. Each Agent
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with any Credit Party or any Affiliate or
Subsidiary of any Credit Party as if they were not performing the duties
specified herein, and may accept fees and other consideration from any other
Credit Party for services in connection with this Agreement and otherwise
without having to account for the same to the Banks.
12.08 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Agents. (a) The Administrative Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 20 Business Days' prior
written notice to the Borrower and the Banks. Such resignation shall take effect
upon the appointment of a successor Administrative Agent pursuant to clauses (b)
and (c) below or as otherwise provided below. Each other Agent may resign from
the performance of all of its functions and duties hereunder and/or under the
other Credit Documents at any
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time by giving notice to the Borrower, the Administrative Agent and the Banks.
Such resignation shall take effect upon delivery of such notice.
(b) Upon any such notice of resignation by the Administrative Agent,
the Required Banks shall appoint a successor Administrative Agent hereunder who
shall be a commercial bank or trust company reasonably acceptable to the
Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 20 Business Day period, the Administrative Agent, with the
consent of the Borrower, which consent shall not be unreasonably withheld, shall
then appoint a successor Administrative Agent who shall serve as Administrative
Agent hereunder until such time, if any, as the Required Banks appoint a
successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 25th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Co-Arrangers (if one or more so
agrees), or if there are no Co-Arrangers or no Co-Arranger so agrees, then the
Required Banks, shall thereafter perform all the duties of the Administrative
Agent hereunder and/or under any other Credit Document until such time, if any,
as the Required Banks appoint a successor Administrative Agent as provided
above.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower shall: (i) whether or
not the transactions contemplated herein are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agents (including, without limitation,
the reasonable fees and disbursements of White & Case and local and foreign
counsel and all appraisal fees, trustee's fees, documentary and recording taxes,
title insurance and recording, filing and other expenses) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, of the Agents in
connection with their syndication efforts with respect to this Agreement and of
each Agent, each Issuing Bank and each of the Banks in connection with the
protection or preservation of their respective rights under the Credit Documents
during the continuance of an Event of Default and the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including in each case, without limitation, the
reasonable fees and disbursements of counsel (including allocated costs of
in-house counsel) for each Agent, for each of the Issuing Banks and for each of
the Banks); (ii) pay and hold each of the
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Agents, each of the Issuing Banks and each of the Banks harmless from and
against any and all present and future stamp, excise and other similar taxes
with respect to the foregoing matters and save each of the Agents, each of the
Issuing Banks and each of the Banks harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Agent, Issuing Bank or Bank, as the case may
be) to pay such taxes; and (iii) indemnify each Agent, each Issuing Bank and
each Bank, and each of their respective officers, directors, employees,
representatives, trustees and agents from and hold each of them harmless against
any and all liabilities, obligations (including removal or remedial actions),
losses, damages, penalties, claims, actions, judgments, suits, costs, expenses
and disbursements (including reasonable attorneys' (including allocated costs of
in-house counsel) and consultants' fees and disbursements, whether any such
attorney's and consultant's fees and disbursements are incurred in connection
with any investigation, litigation or other proceeding between any Credit Party
and any Agent, any Issuing Bank or any Bank or between any Agent, any Issuing
Bank or any Bank and any third Person or otherwise) incurred by, imposed on or
assessed against any of them as a result of, or arising out of, or in any way
related to, or by reason of, (a) any investigation, litigation or other
proceeding (whether or not any Agent, any Issuing Bank or any Bank is a party
thereto) related to the entering into and/or performance of this Agreement or
any other Credit Document or the use of any Letter of Credit or the proceeds of
any Loans or the consummation of any transactions contemplated herein
(including, without limitation, the Transaction) or in any other Credit Document
or the exercise of any of their rights or remedies provided herein or in the
other Credit Documents, or (b) the actual or alleged presence of Hazardous
Materials in the air, surface water or groundwater or on the surface or
subsurface of any Real Property owned, leased or at any time operated by any
Credit Party or any of its Subsidiaries, the Release, generation, storage,
transportation, handling or disposal of Hazardous Materials at any location,
whether or not owned or operated by any Credit Party or any of its Subsidiaries,
the non-compliance of any Real Property with foreign, federal, state and local
laws, regulations, and ordinances (including applicable permits thereunder)
applicable to any Real Property, or any Environmental Claim asserted against any
Credit Party or any of its Subsidiaries, its operations, or any Real Property
owned, leased or at any time operated by any Credit Party or any of its
Subsidiaries, including, in each case, without limitation, the reasonable fees
and disbursements of counsel and other consultants incurred in connection with
any such investigation, litigation or other proceeding (but excluding any
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified). To the extent that the undertaking to indemnify, pay or hold
harmless any Agent, any Issuing Bank or any Bank set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower
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shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.
13.02 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Bank is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to any Credit
Party or to any other Person, any such notice being hereby expressly waived, to
set off and to appropriate and apply any and all deposits (general or special)
and any other Indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located) to
or for the credit or the account of any Credit Party or any of its Subsidiaries
against and on account of the Obligations and liabilities of such Credit Party
or such Subsidiary to such Bank under this Agreement or under any of the other
Credit Documents, including, without limitation, all interests in Obligations
purchased by such Bank pursuant to Section 13.06(b), and all other claims of any
nature or description arising out of or connected with this Agreement or any
other Credit Document, irrespective of whether or not such Bank shall have made
any demand hereunder and although said Obligations, liabilities or claims, or
any of them, shall be contingent or unmatured. Notwithstanding anything to the
contrary contained in this Section 13.02, no Bank shall exercise any such right
of set-off without the prior consent of the Administrative Agent or the Required
Banks so long as the Obligations shall be secured by any Real Property located
in the State of California, it being understood and agreed, however, that this
sentence is for the sole benefit of the Banks and may be amended, modified or
waived in any respect by the Required Banks without the requirement of prior
notice to or consent by any Credit Party and does not constitute a waiver of any
rights against any Credit Party or against any Collateral.
13.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to OFSI, Caterair
Holdings, Caterair or the Borrower, at such Credit Party's address specified
opposite its signature below; if to any Bank, at its address specified opposite
its name on Schedule II, and if to the Administrative Agent, at the Notice
Office; or, as to any Credit Party or any Agent, at such other address as shall
be designated by such party in a written notice to the other parties hereto and,
as to each Bank, at such other address as shall be designated by such Bank in a
written notice to the Borrower and the Administrative Agent. All such notices
and communications shall, when mailed, telegraphed, telexed, telecopied, or
cabled or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case
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may be, or sent by telex or telecopier, except that notices and communications
to the Agents shall not be effective until received by the Agents.
13.04 Benefit of Agreement. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, the Borrower may not assign or
transfer any of its rights, obligations or interest hereunder or under any other
Credit Document without the prior written consent of the Banks and, provided
further, that, although any Bank may transfer, assign or grant participations in
its rights hereunder to an Eligible Transferee, such Bank shall remain a "Bank"
for all purposes hereunder (and may not transfer or assign all or any portion of
its Commitments hereunder except as provided in Section 13.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a
"Bank" hereunder and, provided further, that no Bank shall transfer or grant any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Final Maturity Date) in which such participant is
participating, or reduce the rate or extend the time of payment of interest or
Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Revolving Loan
Commitment shall not constitute a change in the terms of such participation, and
that an increase in any Revolving Loan Commitment shall be permitted without the
consent of any participant if the participant's participation therein is not
increased as a result thereof), (ii) consent to the assignment or transfer by
the Borrower of any its rights and obligations under this Agreement or (iii)
release all or substantially all of the Collateral under all of the Security
Documents (except as expressly provided in the Credit Documents) supporting the
Obligations hereunder in which such participant is participating. In the case of
any such participation, the participant shall not have any rights under this
Agreement or any of the other Credit Documents (the participant's rights against
such Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto)
and all amounts payable by the Borrower hereunder shall be determined as if such
Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together
with one or more other Banks) may (x) assign all or a portion of its Revolving
Loan Commitment and related outstanding Obligations hereunder to (i) its parent
company and/or any affiliate of such Bank which is at least 50% owned by such
Bank or its
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parent company or to one or more Banks or (ii) in the case of any Bank that is a
fund that invests in bank loans, any other fund that invests in bank loans and
is managed or advised by the same investment advisor of such Bank or by an
Affiliate of such investment advisor, or (y) assign all, or if less than all, a
portion equal to at least $5,000,000 in the aggregate for the assigning Bank or
assigning Banks, of such Revolving Loan Commitment and related outstanding
Obligations hereunder to one or more Eligible Transferees (treating any fund
that invests in bank loans and any other fund that invests in bank loans and is
managed or advised by the same investment advisor of such fund or by an
Affiliate of such investment advisor as a single Eligible Transferee), each of
which assignees shall become a party to this Agreement as a Bank by execution of
an Assignment and Assumption Agreement, provided that (i) at the time of each
assignment pursuant to this Section 13.04(b) Schedule I shall be deemed modified
to reflect the Revolving Loan Commitments of such new Bank and of the existing
Banks, (ii) upon surrender of the old Revolving Notes, new Revolving Notes will
be issued, at the Borrower's expense, to such new Bank and to the assigning
Bank, such new Revolving Notes to be in conformity with the requirements of
Section 1.05 (with appropriate modifications) to the extent needed to reflect
the revised Revolving Loan Commitments, (iii) the consent of the Administrative
Agent and each Issuing Bank shall be required in connection with any such
assignment pursuant to clause (y) above (each of which consents shall not be
unreasonably withheld or delayed) and (vi) the Administrative Agent shall
receive at the time of each such assignment, from the assigning or assignee
Bank, the payment of a non-refundable assignment fee of $3,500 and, provided
further, that such transfer or assignment will not be effective until recorded
by the Administrative Agent on the Register pursuant to Section 13.16. To the
extent of any assignment pursuant to this Section 13.04(b), the assigning Bank
shall be relieved of its obligations hereunder with respect to its assigned
Revolving Loan Commitment. At the time of each assignment pursuant to this
Section 13.04(b) to a Person which is not already a Bank hereunder and which is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for Federal income tax purposes, the respective assignee Bank shall
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable a Section 4.04(b)(ii) Certificate). To
the extent that an assignment of all or any portion of a Bank's Revolving Loan
Commitment and related outstanding Obligations pursuant to Section 1.13 or this
Section 13.04(b) would, at the time of such assignment, result in increased
costs under Section 1.10, 1.11, 2.06 or 4.04 from those being charged by the
respective assigning Bank prior to such assignment, then the Borrower shall not
be obligated to pay such increased costs (although the Borrower shall be
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective assignment).
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(c) Nothing in this Agreement shall prevent or prohibit any Bank
from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Bank from such Federal Reserve Bank and, with the
consent of the Administrative Agent, any Bank which is a fund may pledge all or
any portion of its Loans and Notes to its trustee in support of its obligations
to its trustee. No pledge pursuant to this clause (c) shall release the
transferor Bank from any of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the
part of any Agent, any Issuing Bank or any Bank or any holder of any Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between any Credit Party and any Agent, any
Issuing Bank or any Bank or the holder of any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein or in any other
Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which any Agent, any Issuing Bank or any Bank or the
holder of any Note would otherwise have. No notice to or demand on any Credit
Party in any case shall entitle such Credit Party to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of any Agent, any Issuing Bank or any Bank or the holder of any Note to any
other or further action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its pro rata share of any such payment)
pro rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder or under any other Credit Document (whether by voluntary payment, by
realization upon security, by the exercise of the right of setoff or banker's
lien, by counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise), which is applicable to the payment of the
principal of, or interest on, the Loans, Unpaid Drawings, Commitment Commission
or Letter of Credit Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such Obligation
then owed and due to all of the Banks
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immediately prior to such receipt, then such Bank receiving such excess payment
shall purchase for cash without recourse or warranty from the other Banks an
interest in the Obligations of the Borrower to such Banks in such amount as
shall result in a proportional participation by all the Banks in such amount;
provided that, if all or any portion of such excess amount is thereafter
recovered from such Bank, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
13.07 Calculations; Computations. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with generally accepted accounting principles in the United States consistently
applied throughout the periods involved (except as set forth in the notes
thereto or as otherwise disclosed in writing by the Borrower to the Banks);
provided that, except as otherwise specifically provided herein, all
computations determining compliance with Sections 9.07 through 9.09, inclusive,
shall utilize accounting principles and policies in conformity with those used
to prepare the audited financial statements delivered to the Banks pursuant to
Section 7.05(a).
(b) All computations of interest, Commitment Commission and other
Fees hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day) occurring in
the period for which such interest, Commitment Commission or other Fees are
payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE
PROVIDED IN CERTAIN OF THE MORTGAGES AND PLEDGE AGREEMENTS, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROP-
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ERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.
EACH SUCH PARTY HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS
LACK PERSONAL JURISDICTION OVER SUCH PARTY, AND AGREES NOT TO PLEAD OR CLAIM, IN
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS, THAT SUCH COURT LACKS
PERSONAL JURISDICTION OVER SUCH PARTY. EACH SUCH PARTY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH OPPOSITE
ITS SIGNATURE BELOW OR ON SCHEDULE II, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. EACH SUCH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO
SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY CREDIT
DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY AGENT, ANY BANK OR THE HOLDER OF ANY NOTE
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY PARTY IN ANY OTHER JURISDICTION.
(b) EACH PARTY TO THIS AGREEMENT HERETO HEREBY IRREVOCABLY WAIVES TO
THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR
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RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the
date (the "Restatement Effective Date") on which each of (i) OFSI, Caterair
Holdings, Caterair, the Borrower, each Agent and each of the Banks shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered the same to the Administrative Agent and (ii) the
conditions contained in Section 5 are met to the satisfaction of the
Co-Arrangers and the Required Banks. Unless the Co-Arrangers have received
actual notice from any Bank that the conditions contained in Section 5 have not
been met to its satisfaction, upon the satisfaction of the condition described
in clause (i) of the immediately preceding sentence and upon the Co-Arrangers
good faith determination that the conditions described in clause (ii) of the
immediately preceding sentence have been met, then the Restatement Effective
Date shall have been deemed to have occurred, regardless of any subsequent
determination that one or more of the conditions thereto had not been met
(although the occurrence of the Restatement Effective Date shall not release the
Borrower from any liability for failure to satisfy one or more of the applicable
conditions contained in Section 5). The Administrative Agent will give OFSI,
Caterair Holdings, Caterair, the Borrower and each Bank prompt written notice of
the occurrence of the Restatement Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Banks, provided that no such change, waiver, discharge or termination
shall, without the consent of each Bank (other than a Defaulting Bank) (with
Obligations being directly affected thereby in the case of following clause
(i)), (i) extend the final scheduled maturity of any Loan or any Note, or extend
the stated maturity of any Letter of Credit beyond the Final Maturity Date, or
reduce the rate or extend the time of payment of interest or Fees thereon, or
reduce the principal amount thereof (except to the extent
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repaid in cash) (it being understood that any amendment or modification to the
financial definitions in this Agreement or to Section 13.07(a) shall not
constitute a reduction in the rate of interest or Fees for the purposes of this
clause (i), notwithstanding the fact that such amendment or modification
actually results in such a reduction, provided that such amendment or
modification was not consummated for the purpose of lowering the interest rate
or Fees hereunder), (ii) release all or substantially all of the Collateral
(except as expressly provided in the Credit Documents) under all the Security
Documents, (iii) amend, modify or waive any provision of this Section 13.12,
(iv) reduce the percentage specified in the definition of Required Banks (it
being understood that, with the consent of the Required Banks, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Banks on substantially the same basis as the
Revolving Loan Commitments (and related extensions of credit) are included on
the Restatement Effective Date) or (v) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement; provided
further, that no such change, waiver, discharge or termination shall (t)
increase the Revolving Loan Commitment of any Bank over the amount thereof then
in effect without the consent of such Bank (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default
or of a mandatory reduction in the Total Revolving Loan Commitment shall not
constitute an increase of the Revolving Loan Commitment of any Bank, and that an
increase in the available portion of the Revolving Loan Commitment of any Bank
shall not constitute an increase in the Revolving Loan Commitment of such Bank),
(u) without the consent of each Issuing Bank, amend, modify or waive any
provision of Section 2 or alter its rights or obligations with respect to
Letters of Credit issued by it, (v) without the consent of the Swingline Bank,
alter its rights or obligations with respect to Swingline Loans, (w) without the
consent of each Agent affected thereby, amend, modify or waive any provision of
Section 12 as same applies to such Agent or any other provision as same relates
to the rights or obligations of such Agent, or (x) without the consent of the
Collateral Agent, amend, modify or waive any provision relating to the rights or
obligations of the Collateral Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination with respect to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 13.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right, so long as all non-consenting Banks
whose individual consent is required are treated as described in either clause
(A) or (B) below, to either (A) replace each such non-consenting Bank or Banks
with one or more Replacement Banks pursuant to Section 1.13 so long as at the
time of such replacement, each such Replacement Bank consents to the proposed
change, waiver, discharge or termination or (B) terminate such non-
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consenting Bank's Revolving Loan Commitment and repay in full its outstanding
Revolving Loans, in accordance with Sections 3.02(b) and/or 4.01(b), provided
that, unless the Commitment terminated and Revolving Loans repaid pursuant to
preceding clause (B) are immediately replaced in full at such time through the
addition of new Banks or the increase of the Revolving Loan Commitments and/or
outstanding Revolving Loans of existing Banks (who in each case must
specifically consent thereto), then in the case of any action pursuant to
preceding clause (B) the Required Banks (determined before giving effect to the
proposed action) shall specifically consent thereto, provided further, that in
any event the Borrower shall not have the right to replace a Bank, terminate its
Revolving Loan Commitment or repay its Revolving Loans solely as a result of the
exercise of such Bank's rights (and the withholding of any required consent by
such Bank) pursuant to the second proviso to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.06, 2.07, 4.04, 13.01 and 13.06, shall
survive the execution, delivery and termination of this Agreement, the Notes and
any Letters of Credit, and the making and repayment of the Loans (it being
understood and agreed that all such indemnities shall also survive as to any
Bank that has assigned all of its obligations hereunder pursuant to Section
13.04(b) with respect to the period of time in which such Bank was a "Bank"
hereunder).
13.14 Domicile of Loans. Each Bank may transfer and carry its Loans
at, to or for the account of any office, Subsidiary or Affiliate of such Bank.
Notwithstanding anything to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section 13.14 would, at the time of such
transfer, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04 from
those being charged by the respective Bank prior to such transfer, then the
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 Confidentiality. (a) Each Agent and each Bank agrees that any
information concerning the Credit Parties or any of their Subsidiaries or
Affiliates furnished to the Agents or the Banks by or on behalf of the Credit
Parties or their respective representatives (at any time on, before or after the
date of this Agreement) (including, but not limited to, copies of, or
information concerning, Sky Chefs' and Caterair's respective catering agreements
with American Airlines, together with analyses, compilations, studies or other
documents prepared by each Agent's and each Bank's agents, representatives
(including attorneys, accountants, financial advisors or to any other Person who
evaluates, approves, structures or administers the Loans on behalf of a Bank and
who is subject to this confidentiality provision) or employees
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(collectively, "Representatives") that in each case contain or otherwise reflect
such information is collectively referred to as the "Information") shall be kept
confidential and shall not, without the prior written consent of the Borrower,
be disclosed (other than to Representatives of the Agents and the Banks) in any
manner whatsoever, in whole or in part, or used other than in connection with
the Credit Documents, in evaluating the Transaction and in evaluating and
monitoring the creditworthiness of the Credit Parties, provided that disclosure
may be made of any Information (i) as has become generally available to the
public through no fault or action by such Agent, Bank or Representative in
violation of this Section 13.15, (ii) as may be required in any report,
statement or testimony submitted to any municipal, state or Federal regulatory
body having or claiming to have jurisdiction over such disclosing Agent or Bank,
or to the Federal Reserve Board, the Federal Deposit Insurance Corporation, the
NAIC or similar organizations (whether in the United States or elsewhere) or
their successors, (iii) as may be required by any law, order, regulation or
ruling applicable to such disclosing Agent or Bank, and (iv) to the Collateral
Agent who shall agree to be bound hereunder; and provided further that the
Information may be disclosed to any Bank or an Eligible Transferee that is a
participant of such Bank so long as any such participant shall have entered into
confidentiality agreements (containing provisions substantially the same as
those contained herein) with the Credit Parties as well as to any Person that
qualifies as an Eligible Transferee and is a prospective assignee or participant
in connection with such transaction provided that such prospective assignee or
participant also executes an agreement containing provisions substantially the
same as those contained herein. Each Agent and each Bank shall be responsible
for any breach of this Section 13.15 by its respective Representatives
(including former Representatives).
(b) Notwithstanding anything contained herein to the contrary, the
obligation to keep confidential the Information as set forth herein shall
automatically terminate two years after satisfaction in full of the obligations
of the Credit Parties hereunder (except in the case of the respective American
Airlines Catering Agreements, and Information with respect thereto, for which
the confidentiality obligation shall in any event continue until June 30, 2007
or such later date as may be agreed to from time to time by the Borrower and the
Required Banks, it being understood and agreed that to the extent such date is
not so extended and the Borrower is no longer permitted to share confidential
information with the Banks as it relates to the American Airlines Catering
Agreements by reason of the contractual terms of such Catering Agreements or
other written arrangements with America Airlines, the Borrower shall not be
required to share such confidential information with the Banks pursuant to this
Agreement).
(c) In the event that an Agent, a Bank or a Representative or anyone
to whom information was transmitted pursuant to this Section 13.15 is requested
or
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becomes legally compelled (by oral questions, interrogatories, requests for
information or documents, summons, subpoena, civil investigative demand or
similar process) to disclose any of the Information, such Person shall provide
the Borrower (to the extent such Person is legally permitted to do so) with
prompt notice so that the Borrower or any other Credit Party may seek a
protective order or other appropriate remedy or waive compliance with the
provisions of this Section 13.15. In the event that such protective order or
other remedy is not obtained on or prior to the date on which such Information
is required to be disclosed, or that the Credit Parties waive compliance with
the provisions of this Section 13.15, such Agent or Bank shall furnish that
portion of the Information that as advised by counsel is legally required or
advisable.
(d) This Section 13.15 shall be inoperative as to such portions of
the Information that become available to the Agents, the Banks or their
Representatives from a source, other than the Credit Parties or their respective
representatives, that such Agent, Bank or Representative does not have actual
knowledge (without any obligation of inquiry) is prohibited from disclosing such
portions by a contractual, legal or fiduciary obligation to the Credit Parties.
(e) Each of the Credit Parties hereby acknowledges and agrees that
each Agent and each Bank may share with any of its respective affiliates the
Information (including, without limitation, any nonpublic customer information
regarding creditworthiness of the Credit Parties and their Subsidiaries),
provided such affiliates shall be subject to the provisions herein to the same
extent as if it were an Agent or a Bank hereunder, it being understood that for
purposes of this Section 13.15 the term "affiliate" shall mean direct or
indirect holding company(ies), if any, as well as direct or indirect
subsidiary(ies), if any.
(f) Each Agent and each Bank agrees that in the event of any actual
or threatened breach of this Section 13.15 the Credit Parties shall be entitled,
without the requirement of posting a bond or other security, to equitable
relief, including temporary, preliminary and permanent injunctive relief and
specific performance. Such remedy shall not be the exclusive remedy for any
breach of this Section 13.15 but shall be in addition to all other remedies
available at law or equity to the Credit Parties.
13.16 Register. The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.16, to maintain a register (the "Register") on which it will record the
Revolving Loan Commitments from time to time of each of the Banks, the Loans
made by each of the Banks and each repayment in respect of the principal amount
of the Loans of each Bank. Failure to make any such recordation, or any error in
such recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Bank, the
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transfer of the Revolving Loan Commitment of such Bank and the rights to the
principal of, and interest on, any Loan made pursuant to such Revolving Loan
Commitment shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Revolving Loan Commitment and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Revolving Loan Commitment
and Revolving Loans shall remain owing to the transferor. The registration of
assignment or transfer of all or part of any Revolving Loan Commitment and
Revolving Loans shall be recorded by the Administrative Agent on the Register
only upon the acceptance by the Administrative Agent of a properly executed and
delivered Assignment and Assumption Agreement pursuant to Section 13.04(b).
Coincident with the delivery of such an Assignment and Assumption Agreement to
the Administrative Agent for acceptance and registration of assignment or
transfer of all or part of a Revolving Loan, or as soon thereafter as
practicable, the assigning or transferor Bank shall surrender the Note
evidencing such Revolving Loan, and thereupon one or more new Revolving Notes in
the same aggregate principal amount shall be issued to the assigning or
transferor Bank and/or the new Bank. Each Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this Section
13.16.
13.17 Certain Matters Relating to OFSI. Notwithstanding anything to
the contrary contained in this Agreement or in any other Credit Document, the
Banks hereby agree that OFSI shall have the right, so long as no Default or
Event of Default then exists and a similar request is made under the Caterair
Credit Agreement, to establish a direct Wholly-Owned Domestic Subsidiary of OFSI
("Parent") the sole purpose of which is to own 100% of the issued and
outstanding shares of capital stock of the Borrower. In connection with such
request, OFSI shall have the right to transfer all of the outstanding shares of
capital stock of the Borrower to Parent so long as at the time of such transfer,
(i) no Default or Event of Default then exists, (ii) Parent shall enter into a
guaranty in form and substance satisfactory to the Administrative Agent pursuant
to which Parent shall unconditionally guaranty all of the Obligations, (iii)
Parent shall enter into a pledge agreement in form and substance satisfactory to
the Administrative Agent pursuant to which Parent shall pledge all of the issued
and outstanding shares of capital stock of the Borrower to secure the guaranty
referred to in preceding clause (ii), (iv) OFSI shall pledge all of the issued
and outstanding shares of the capital stock of Parent pursuant to the OFSI
Pledge Agreement, (v) OFSI, the Borrower, Caterair, the other Credit Parties and
the Banks shall enter into technical amendments and modifications to this
Agreement and the other Credit Documents which have been agreed to by the
Co-Arrangers to give effect to the foregoing and to release OFSI from its
obligations under Sections 8 and 9 of this Agreement, except for its
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obligations under Sections 8.01(b), 8.01(c), 8.01(g), 8.04 (as it relates to the
preservation of OFSI's existence), and 9.01 (as it relates to the creation of
any Liens on the capital stock of Parent), and the Required Banks agree that
they will not unreasonably withhold their consent to any such proposed
amendments and modifications, and (v) corresponding amendments and modifications
are made to the Caterair Credit Documents.
13.18 Certain Post-Closing Actions. Notwithstanding anything to the
contrary contained in Section 5.08, the Borrower and the Banks hereby
acknowledge and agree that any amendments or modifications to any of the
localized foreign Pledge Agreements that may be required in connection with the
transactions contemplated hereby shall not be required to be delivered by the
respective Credit Parties on the Restatement Effective Date but shall instead be
required to be delivered within 90 days following the Restatement Effective
Date.
13.19 Non-Continuing Banks. The parties hereto acknowledge that each
Original Bank that is not a party hereto on the Restatement Effective Date (and
after giving effect thereto) shall no longer constitute a "Bank" under this
Agreement and the other Credit Documents, provided that all indemnities of the
Credit Parties under the Original Credit Agreement and the other Credit
Documents (as in effect prior to the Restatement Effective Date) which survive
the termination of the Original Credit Agreement by their terms shall continue
to survive in accordance with their terms after the Restatement Effective Date.
SECTION 14. OFSI Guaranty.
14.01 The Guaranty. In order to induce the Agents and the Banks to
enter into this Agreement and to extend credit hereunder, to induce the Other
Creditors to enter into the Interest Rate Protection Agreements or Other Hedging
Agreements and in recognition of the direct benefits to be received by OFSI from
the proceeds of the Loans, the issuance of the Letters of Credit and the
entering into of the Interest Rate Protection Agreements or Other Hedging
Agreements, OFSI hereby agrees with the Secured Creditors as follows: OFSI
hereby unconditionally and irrevocably guarantees, as primary obligor and not
merely as surety the full and prompt payment when due, whether upon maturity,
acceleration or otherwise, of any and all of the Guaranteed Obligations of the
Borrower to the Secured Creditors. If any or all of the Guaranteed Obligations
of the Borrower to the Secured Creditors becomes due and payable hereunder, OFSI
unconditionally promises to pay such indebtedness to the Secured Creditors, or
order, on demand, together with any and all expenses which may be incurred by
the Secured Creditors in collecting any of the Guaranteed Obligations.
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155
14.02 Bankruptcy. Additionally, OFSI unconditionally and irrevocably
guarantees the payment of any and all of the Guaranteed Obligations of the
Borrower to the Secured Creditors whether or not due or payable by the Borrower
upon the occurrence of any of the events specified in Section 10.05, and
unconditionally, jointly and severally, promises to pay such indebtedness to the
Secured Creditors, or order, on demand, in lawful money of the United States.
14.03 Nature of Liability. The liability of OFSI hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations of the Borrower whether executed by OFSI, any other
guarantor or by any other party, and the liability of OFSI hereunder is not
affected or impaired by (a) any direction as to application of payment by the
Borrower or by any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the
Guaranteed Obligations of the Borrower, or (c) any payment on or in reduction of
any such other guaranty or undertaking, or (d) any dissolution, termination or
increase, decrease or change in personnel by the Borrower, or (e) any payment
made to the Secured Creditors on the Guaranteed Obligations which any such
Secured Creditor repays to the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and OFSI waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding.
14.04 Independent Obligation. The obligations of OFSI hereunder are
independent of the obligations of any other guarantor, any other party or the
Borrower, and a separate action or actions may be brought and prosecuted against
OFSI whether or not action is brought against any other guarantor, any other
party or the Borrower and whether or not any other guarantor, any other party or
the Borrower be joined in any such action or actions. OFSI waives, to the full
extent permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by the Borrower or
other circumstance which operates to toll any statute of limitations as to the
Borrower shall operate to toll the statute of limitations as to OFSI.
14.05 Authorization. OFSI authorizes the Secured Creditors without
notice or demand (except as shall be required by applicable law and cannot be
waived), and without affecting or impairing its liability hereunder, from time
to time to:
(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew, increase, accelerate or alter,
any of the Guaranteed Obligations (including any increase or decrease in
the rate of interest thereon), any security therefor, or any liability
incurred directly or indirectly in
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156
respect thereof, and the Guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower, any other Credit Party or others or otherwise act or refrain
from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to its creditors other than
the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Secured Creditors
regardless of what liability or liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements
referred to herein, or otherwise amend, modify or supplement this
Agreement or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
OFSI from its liabilities under this Guaranty.
14.06 Reliance. It is not necessary for the Secured Creditors to
inquire into the capacity or powers of the Borrower or the officers, directors,
partners or agents acting or purporting to act on their behalf, and any
Guaranteed Obligations made or created in reliance upon the professed exercise
of such powers shall be guaranteed hereunder.
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157
14.07 Subordination. Any of the indebtedness of the Borrower now or
hereafter owing to OFSI is hereby subordinated to the Guaranteed Obligations of
the Borrower owing to the Secured Creditors; and if the Administrative Agent so
requests at a time when an Event of Default exists, all such indebtedness of the
Borrower to OFSI shall be collected, enforced and received by such OFSI for the
benefit of the Secured Creditors and be paid over to the Administrative Agent on
behalf of the Secured Creditors on account of the Guaranteed Obligations of the
Borrower to the Secured Creditors, but without affecting or impairing in any
manner the liability of OFSI under the other provisions of this Guaranty. Prior
to the transfer by OFSI of any note or negotiable instrument evidencing any of
the indebtedness of the Borrower to OFSI, OFSI shall ▇▇▇▇ such note or
negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, OFSI agrees
with the Secured Creditors that it will not exercise any right of subrogation
which it may otherwise have as a result of this Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code, or otherwise) until all Guaranteed
Obligations have been paid in full in cash.
14.08 Waiver. (a) OFSI waives any right (except as shall be required
by applicable law and cannot be waived) to require the Secured Creditors to (i)
proceed against the Borrower, any other guarantor or any other party, (ii)
proceed against or exhaust any security held from the Borrower, any other
guarantor or any other party or (iii) pursue any other remedy in the Secured
Creditors' power whatsoever. OFSI waives any defense based on or arising out of
any defense of the Borrower, any other guarantor or any other party, other than
payment in full of the Guaranteed Obligations, based on or arising out of the
disability of the Borrower, any other guarantor or any other party, or the
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower other
than payment in full of the Guaranteed Obligations. The Secured Creditors may,
at their election, foreclose on any security held by any Agent, the Collateral
Agent or the other Secured Creditors by one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable,
or exercise any other right or remedy the Secured Creditors may have against the
Borrower or any other party, or any security, without affecting or impairing in
any way the liability of OFSI hereunder except to the extent the Guaranteed
Obligations have been paid. OFSI waives any defense arising out of any such
election by the Secured Creditors, even though such election operates to impair
or extinguish any right of reimbursement or subrogation or other right or remedy
of OFSI against the Borrower or any other party or any security.
(b) OFSI waives all presentments, demands for performance, protests
and notices, including, without limitation, notices of nonperformance, notices
of protest, notices of dishonor, notices of acceptance of this Guaranty, and
notices of the
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158
existence, creation or incurring of new or additional Guaranteed Obligations.
OFSI assumes all responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks which OFSI assumes and incurs hereunder,
and agrees that neither any Agent nor any Bank shall have any duty to advise
OFSI of information known to them regarding such circumstances or risks.
(c) OFSI hereby acknowledges and affirms that it understands that to
the extent the Guaranteed Obligations are secured by Real Property located in
California, OFSI shall be liable for the full amount of the liability hereunder
notwithstanding the foreclosure on such Real Property by trustee sale or any
other reason impairing OFSI's or any Secured Creditor's right to proceed against
the Borrower or any other guarantor of the Guaranteed Obligations. In accordance
with Section 2856 of the California Civil Code, OFSI hereby waives:
(i) all rights of subrogation, reimbursement, indemnification,
and contribution and any other rights and defenses that are or may become
available to OFSI by reason of Sections 2787 to 2855, inclusive, 2899 and
3433 of the California Civil Code;
(ii) all rights and defenses that OFSI may have because the
Guaranteed Obligations are secured by Real Property located in California.
This means, among other things: (A) the Secured Creditors may collect from
OFSI without first foreclosing on any real or personal property collateral
pledged by the Borrower; and (B) if the Secured Creditors foreclose on any
Real Property collateral pledged by the Borrower, (1) the amount of the
Guaranteed Obligations may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral is
worth more than the sale price, and (2) the Secured Creditors may collect
from OFSI even if the Secured Creditors, by foreclosing on the Real
Property collateral, have destroyed any right OFSI may have to collect
from the Borrower. This is an unconditional and irrevocable waiver of any
rights and defenses OFSI may have because the Guaranteed Obligations are
secured by Real Property. These rights and defenses include, but are not
limited to, any rights or defenses based upon Section 580a, 580b, 580d or
726 of the California Code of Civil Procedure; and
(iii) all rights and defenses arising out of an election of
remedies by the Secured Creditors, even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for the
Guaranteed Obligations, has destroyed OFSI's rights of subrogation and
reimbursement against the
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159
Borrower by the operation of Section 580d of the Code of Civil Procedure
or otherwise.
OFSI warrants and agrees that each of the waivers set forth above is made with
full knowledge of its significance and consequences and that if any of such
waivers are determined to be contrary to any applicable law or public policy,
such waivers shall be effective only to the maximum extent permitted by law.
14.09 No Recourse Against Class B Assets. Notwithstanding anything
to the contrary contained in this Guaranty, the Secured Creditors acknowledge
and agree that they shall have no recourse against OFSI under this Guaranty in
respect of the Class B Assets (but, in the case of any Class B Assets that
constitute cash, only to the extent that such cash has been segregated from the
other assets (including other cash)) of OFSI.
* * *
-152-
160
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
c/o Sky Chefs, Inc. ONEX FOOD SERVICES, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ ------------------------------------
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President Title: Ass't Secretary
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ INTERNATIONAL SERVICES, INC.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
Attention: President ------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Authorized Signatory
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR HOLDINGS CORPORATION
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attention: President ------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Ass't Secretary
with a copy to:
c/o Sky Chefs, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Executive Vice President
161
6550 Rock Spring Drive CATERAIR INTERNATIONAL
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CORPORATION
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
with a copy to:
c/o Sky Chefs, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Executive Vice President
162
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, Individually and as
Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
163
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as a Co-Arranger
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
164
BANKERS TRUST COMPANY,
Individually and as Syndication
Agent and a Co-Arranger
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
165
SCHEDULE I
COMMITMENTS
Revolving Loan
Bank Commitment
---- --------------
▇▇▇▇▇▇ Guaranty Trust Company of New York $32,500,000
Bankers Trust Company $32,500,000
The Bank of New York $25,000,000
-----------
$90,000,000
166
SCHEDULE II
BANK ADDRESSES
▇▇▇▇▇▇ Guaranty Trust
Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
167
SCHEDULE III
EXISTING LETTERS OF CREDIT
As required by Section 2.01(a) of the SCIS Credit Agreement, this
schedule details all Existing Letters of Credit which were issued by The Bank of
New York for the account of SCIS pursuant to the Original Credit Agreement and
which are to remain outstanding on the Restatement Effective Date:
L/C # Beneficiary Issue Date Expiry Face Amount
----- ----------- ---------- ------ -----------
33244 Continental Casualty Co. 9/28/95 9/29/97 $ 2,475,000.00
33277 Banco Credibanco SA 10/10/95 9/10/97 $ 1,500,000.00
33457 TriNet Essential VIII N 11/10/95 5/17/98 $ 343,112.85
33458 TriNet Essential VIII R 11/10/95 5/17/98 $ 355,017.09
33465 Travelers Indemnity Company 12/11/95 2/5/98 $ 431,801.00
33588 St ▇▇▇▇ Fire & Marine 12/11/95 2/28/98 $ 6,651,344.00
33589 Travelers Insurance 12/11/95 2/4/98 $ 100,000.00
33590 St ▇▇▇▇ Fire & Marine 12/11/95 9/24/97 $ 5,000,000.00
33591 San Diego Unified Port 12/11/95 3/24/98 $ 241,000.00
33592 Barclays Bank GTS 12/11/95 12/31/97 $ 1,812,024.46
33593 Port Authority NY & NJ 12/11/95 12/31/97 $ 500,000.00
33594 Port Authority NY & NJ 12/11/95 12/31/97 $ 1,000,000.00
33597 Port Authority NY & NJ 12/11/95 1/31/98 $ 18,000.00
33598 Port Authority NY & NJ 12/11/95 1/31/98 $ 282,000.00
33690 Barclays Bank Plc 12/29/95 12/27/97 $ 490,000.00
33692 CIBC Bank & Trust Company 1/26/96 1/26/98 $ 441,000.00
33918 Port Authority NY & NJ 2/22/96 4/25/98 $ 1,500,000.00
34336 CIBC Bank & Trust Company 5/23/96 5/24/98 $ 1,372,000.00
34339 TriNet Corporate Realty Trust 5/23/96 11/28/97 $ 100,000.00
36378 Direccion de Aeronautica Civil 8/8/97 6/13/98 $ 75,000.00
36417 American Airlines 7/15/97 1/15/98 $ 184,102.00
==============
Total $24,871,401.40
168
SCHEDULE IV
REAL PROPERTY
This schedule details the owned or leased properties of the
following entities:
COMPANY LOCATION OF PROPERTY
------- --------------------
ONEX FOOD SERVICES, INC. NONE
SC INTERNATIONAL SERVICES, INC. NONE
CATERAIR INTERNATIONAL CORPORATION SEE LIST BELOW FOR ENTRIES
ENTITLED "CATERAIR"
SKY CHEFS, INC. SEE LISTS BELOW FOR ENTRIES
ENTITLED "SKY CHEFS"
CATERAIR INTERNATIONAL, INC. (II) NONE
SKY CHEFS INTERNATIONAL CORP. NONE
ARLINGTON SERVICES, INC. Office space leased from PNC
Bank at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ARLINGTON SERVICES HOLDING CORPORATION Office space leased from PNC
Bank at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CATERAIR CONSULTING SERVICES CORPORATION NONE
JFK CATERERS, INC. NONE
CATERAIR ST. ▇▇▇▇▇▇ HOLDINGS CORPORATION NONE
WESTERN AIRE CHEF, INC. NONE
CATERAIR AIRPORT PROPERTIES, INC. NONE
SKY CHEFS ARGENTINE, INC. NONE IN THE U.S.
ADDRESS IN ARGENTINA:
▇▇▇▇▇▇▇▇ GENERAL MORILLAS
S N Y
AUTOPISTA AV. GVAL.
RICCHIERI
AEROPUERTO EZEIZA ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇
CATERAIR INTERNATIONAL TRANSITION CORPORATION NONE
169
COMPANY LOCATION OF PROPERTY
------- --------------------
BETHESDA SERVICES, INC. Office space leased from PNC
Bank at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CATERAIR NEW ZEALAND LIMITED Office space leased from PNC
Bank at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ONEX OHIO ACCEPTANCE CORPORATION NONE
ONEX OHIO CREDIT CORP. NONE
ONEX OHIO EQUITY CORP. NONE
ONEX OHIO FINANCE CORP. NONE
ONEX OHIO FINANCE CORP. II NONE
ONEX OHIO CAPITAL CORP. NONE
ONEX OHIO FISCAL CORP. NONE
ONEX OHIO FUNDS CORP. NONE
ONEX OHIO CREDIT CORP. II NONE
ONEX OHIO FUNDS CORP. II NONE
ONEX OHIO FISCAL CORP. II NONE
ONEX OHIO EQUITY CORP. II NONE
ONEX OHIO CAPITAL CORP. II NONE
2
170
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Owned/
Shop # Address City State Country Zip Airport Leased
====================================================================================================================================
Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇) ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ANC L
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Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ANC L
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Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PHX O
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Sky Chefs 1235 S. 23rd (Closed - Warehouse) ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PHX L
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Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PHX O
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Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ TUS L
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Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SFO O
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Sky Chefs ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SFO L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (1/2 of building leased to tenant) ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SFO L
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Sky Chefs ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SFO L
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Sky Chefs ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SFO L
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Sky Chefs ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇ (Remote Facility - SNA 381) ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BUR L
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Sky Chefs ▇▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SNA L
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380 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LGB L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LAX L
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Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LAX L
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Sky Chefs Building M-111, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Way Oakland CA US 94603 OAK L
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Sky Chefs ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ONT L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇. ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PSP L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SMF L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SAN L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SJC L
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Sky Chefs ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ DEN L
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Sky Chefs ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ O6096 BDL L
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Sky Chefs ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ L
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Sky Chefs ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ FTM L
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Sky Chefs ▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇) ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ FLL L
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Sky Chefs ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇) ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ FLL L
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Sky Chefs ▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ 33315 FLL L
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Sky Chefs ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MIA O
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Sky Chefs ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MIA L
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Sky Chefs ▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MIA L
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Sky Chefs ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MIA O
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Sky Chefs Bldg. No. 3088, Miami Int'l Airport (sub Let to United) ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MIA L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇. (Leased to A & C Bakery) (Southland) ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MCO O
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Sky Chefs ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MCO L
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Sky Chefs ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ TPA L
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Sky Chefs ▇▇▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PBI L
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Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ATL L
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Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ HNL L
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Sky Chefs 3129 Lualena (Closed - Warehouse) ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ HNL L
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Sky Chefs 2635 ▇▇▇ ▇▇▇ Loop (Closed - Warehouse - Leased) ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ HNL L
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Sky Chefs 3239 Koapaka Street(Closed - warehouse) (leased to
4 tenants) ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ HNL L
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Sky Chefs ▇'▇▇▇▇ International Airport Chicago IL US 60666 ORD L
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Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MSY L
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Sky Chefs ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BOS L
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Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ O2150 BOS L
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Sky Chefs #1 Wood Island Park, ▇▇▇▇▇ Int Airport (Closed -
Warehouse) Boston MA US O2150 BOS L
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Sky Chefs ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ US O2128 BOS L
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Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BWI L
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60 Bldg.113, Elk Road (Warehouse) ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BWI L
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Caterair ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ L
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Sky Chefs Bldg. No. 534, Detroit Metro Airport ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ DTW L
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Sky Chefs Bldg. No. 505, Detroit Metro Airport ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ DTW L
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397 221 West 79th Street (storage) ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MSP L
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Sky Chefs ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MSP L
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Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MCI L
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Sky Chefs Terminal C RDU Airport Raleigh NC US 80307 RDU L
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Sky Chefs ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ RDU L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ OMA L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ALB L
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Sky Chefs Building 95, ▇▇▇▇▇▇▇▇ ▇▇ South Newark NJ US 7114 EWR L
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Sky Chefs ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LAS L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ RNO O
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Sky Chefs Hanger #5, LaGuardia Airport ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LGA
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Sky Chefs ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇) ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LGA O
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Sky Chefs ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LGA O
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Sky Chefs Building 122, JFK International Airport ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ JFK L
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Sky Chefs Building 143, JFK International Airport (LSG Kitchen) ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ JFK L
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Sky Chefs AA Terminal Concessions, JFK International Airport Jamaica NY US 11430 JFK L
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Sky Chefs ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. (Warehouse for Surplus Equipment) ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ JFK L
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Sky Chefs ▇▇▇-▇▇ ▇▇▇▇ ▇▇▇▇ - (▇▇▇▇▇▇▇▇▇) ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ JFK L
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Sky Chefs Building 139, West Hangar R Jamaica NY US 11430 JFK L
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Sky Chefs ▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ JFK L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ROC L
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Sky Chefs ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ Int'l Airport ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SWF L
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Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ SYR L
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Sky Chefs ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ CLE L
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Sky Chefs ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ L
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171
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Owned/
Shop # Address City State Country Zip Airport Leased
====================================================================================================================================
Sky Chefs Cargo Building/Cargo Road Tulsa OK US 74115 TUL L
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Sky Chefs ▇▇▇▇ ▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PDX L
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628 ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PDX L
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300 ▇▇▇▇▇▇▇▇▇▇▇ Corp. Ctr. (office space only) ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ CST L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PHL O
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ CHS O
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Sky Chefs ▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ L
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317 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇. ▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ L
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Sky Chefs ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇/ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ DFW L
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Sky Chefs ▇▇▇▇ ▇ ▇▇▇▇ ▇▇ (Closed - Warehouse) Dallas/ Ft ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ DFW L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇/ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ DFW L
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Sky Chefs ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. (▇▇▇▇▇▇ - Warehouse) Dallas/ Ft ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ DFW L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ELP L
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Sky Chefs ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ HOU L
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CST ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ (office) Irving TX US
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Sky Chefs ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BNA L
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Sky Chefs ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SLC L
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Sky Chefs East Service Rd., Dulles International Airport ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ IAD L
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624 P.O. Box 86 Kingshill (idle) St. Croix VI US 851 STX L
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Sky Chefs ▇▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SEA O
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SEA L
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Sky Chefs ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MKE L
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172
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Owned/
Shop # Address City State Country Zip Airport Leased
====================================================================================================================================
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Sky Chefs Marriott Argentina Airline Catering, ▇▇▇▇▇▇▇▇ General
Morillas S/N Y Autopista Av. Gval. Ricchieri,
Aeropuerto Ezeiza ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ BUE
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Caterair Caterair Airport Services, GPO Box 1036 (Quantas
Drive), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ BNE
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Caterair Caterair Airport Services, GPO ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ CNS
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Caterair Caterair Airport Services, Hanger ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ Int'l Airport ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ SYD
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Sky Chefs Caterair Services de Bordo e Hotelaria, S.A., Aeroporto
Internatacional do Galeao, Caixa postal 32858, CEP ▇▇▇▇ ▇▇▇ ▇▇ Janeiro Brazil RIO
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Sky Chefs Caterair Brasil, S.A., Orlando, Bergamo No. 100, Guarulhos Sao Paulo Brazil GRU
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Sky Chefs Caterair Chile, S.A., Casilla 14469, Aeropuerto
Internacional, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Chile SCL
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Sky Chefs Aeromar Ltd., Sherometeyvo ▇▇▇▇▇▇▇ ▇▇. ▇, ▇-▇▇▇ ▇▇▇▇▇▇ CIS
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Sky Chefs Caterair France, ▇▇-▇▇, ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ Bleue, B.P.
20316, ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ CDG
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Sky Chefs Caterair In-Flite Services de Mexico, S.A. de C.V.,
▇▇. ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ KM195 Acapulco Mexico 39490 ACA O
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Marraca Caterair In-Flite Services de Mexico, S.A. de C.V.,
▇▇. ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ KM195 Acapulco Mexico 39490 ACA O
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Sky Chefs Calidad en Alimentos S.A. de C.V., Aeropuerto
Internacional Midguel ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ GDL L
------------------------------------------------------------------------------------------------------------------------------------
339.04 Comisariato Mazatlan, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ GDL
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Comisariato Mazatlan, S.A. de C.V., ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ MZT L
------------------------------------------------------------------------------------------------------------------------------------
338.01 Caterair In-Flite Services de Mexico, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ O
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Casa ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇.▇. de C.V., Posicion ▇▇. ▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ L
------------------------------------------------------------------------------------------------------------------------------------
339.01 Cocina del Aire, S.A. de C.V., Aeropuerto Internacional
Interior ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ L
------------------------------------------------------------------------------------------------------------------------------------
338.91 ▇▇▇▇▇▇▇ #132, Col. Penon De Los Banos C.P. 15520 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
341 ▇▇▇▇▇▇▇ #132, Col. Penon De Los Banos C.P. 15520 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
va ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ #▇▇▇, ▇▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ C.P. 15520 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ O
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Comisariato Monterrey, S.A. de C.V., Aeropuerto
Internacional Gral. ▇▇▇▇▇▇▇ Escobedo, Apodaco,
N.L. 66600 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ MTY L
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Comisariato Mazatlan, S.A. de C.V., Aeropuerto Civil
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ PVR L
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Comisariato de Baja California S.A. de C.V., ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇.▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ TIJ O
------------------------------------------------------------------------------------------------------------------------------------
Auckland New Zealand L
------------------------------------------------------------------------------------------------------------------------------------
Wellington New Zealand L
------------------------------------------------------------------------------------------------------------------------------------
Christchurch New Zealand L
------------------------------------------------------------------------------------------------------------------------------------
Rarotonga New Zealand L
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair Internacional de Panama, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PTY L
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair Portugal, Assistencia A Bordo, ▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇. ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LIS
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair Barcelona, Aeropuerto de Barcelona, Post Office
▇▇▇ ▇▇.▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ BCN
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair Barcelona, Aeropuerto ▇▇▇▇▇▇ ▇'▇▇▇▇, Costa Brava ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair Madrid, ▇/▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 28042 MAD
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair Madrid, Frente ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ AGP
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair Barcelona, Apartodo ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ MAH
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair Barcelona, Aeropuerto Son San ▇▇▇▇ ▇▇▇▇▇ de Mallorca Spain PMI
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair U.K., Manor Royal Trading Estates, Faraday,
Road, Crawley, Sussex Gatwick U.K. 10-2PX LGW
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇. LGW
------------------------------------------------------------------------------------------------------------------------------------
324.01 Administrative Office Horley U.K. Admin.
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair/GCC In-Flite Services, Faggs Road, Feltham,
Middlesex London U.K. 130NQ LHR
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair U.K., Pinfold Lane Ringway, Altrincham Cheshire Manchester U.K. 158XA MAN
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Caterair Internacional ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Caracas Venezuela CCS
------------------------------------------------------------------------------------------------------------------------------------
304.01 Maricabo Venezuela
------------------------------------------------------------------------------------------------------------------------------------
173
SCHEDULE V
CAPITALIZATION
All outstanding (i) securities convertible into or exchangeable for
capital stock and (ii) subscription rights, options, warrants, contingent
issuance agreements, calls, stock appreciation rights, commitments or claims of
any character relating to the capital stock of OFSI, Caterair Holdings, SCIS,
Caterair, and any Subsidiary are as described in the Final Offering Memorandum
dated August 22, 1997 for the issuance by SCIS of $300,000,000 in 9.25% Senior
Subordinated Notes due 2007.
174
SCHEDULE VI
SUBSIDIARIES
As required by Section 7.15 of the Credit Agreement, this schedule details
each subsidiary of which OFSI or Caterair Holdings owns or holds, directly or
indirectly, more than 50% of the ordinary voting power or more than a 50% equity
interest as of the Restatement Effective Date.
Subsidiaries of Onex Food Services, Inc. ("OFSI"):
Class of % of Direct
Name Stock Ownership Owner
---- ----- --------- -----
SC International Services, Inc. ("SCIS") Common 100% OFSI
Caterair International, Inc. (II) Common 100% SCIS
Sky Chefs, Inc. Common 100% SCIS
Sky Chefs International Corp. Common 100% Sky Chefs, Inc.
LSG-Sky Chefs do Brasil Catering--Refeicoes Quotas 100% Sky Chefs Int'l
Ltda.
ServCater Internacional Ltda. Quotas 80% Sky Chefs do
Brasil
Arlington Services, Inc. Common 100% Sky Chefs, Inc.
Arlington Services Holding Corporation Common 100% Sky Chefs, Inc.
("ASH")
Bethesda Services, Inc. Common 100% Caterair
International,
Inc. (II)
Caterair New Zealand Ltd. ("CNZ") Common 100% Bethesda
Services, Inc.
Onex Ohio Acceptance Corporation Common 100% SCIS
Onex Ohio Credit Corp. Common 100% SCIS
Onex Ohio Equity Corp. Common 100% SCIS
Onex Ohio Finance Corp. Common 100% SCIS
Onex Ohio Finance Corp. II Common 100% SCIS
Onex Ohio Capital Corp. Common 100% SCIS
175
Class of % of Direct
Name Stock Ownership Owner
---- ----- --------- -----
Onex Ohio Fiscal Corp. Common 100% SCIS
Onex Ohio Funds Corp. Common 100% SCIS
Onex Ohio Credit Corp. II Common 100% SCIS
Onex Ohio Funds Corp. II Common 100% SCIS
Onex Ohio Fiscal Corp. II Common 100% SCIS
Onex Ohio Equity Corp. II Common 100% SCIS
Onex Ohio Capital Corp. II Common 100% SCIS
Caterair International Transition Corporation Common 100% SCIS
SC International Services of Barbados Ltd. Common 100% SCIS
Caterair Consulting Services Corporation Common 100% ASH
JFK Caterers, Inc. Common 100% ASH
Sky Chefs Argentine, Inc. Common 100% ASH
Caterair St. ▇▇▇▇▇▇ Holdings Corporation Common 100% ASH
Cater Suprimento de Refeicoes, Ltd.
("CSRL") Quotas 100% ASH
Caterair Servicos de Bordo e Hotelaria S/A Ordinary 100% CSRL
Sky Chefs Canada, Limited Ordinary 100% ASH
SC International Services Ireland Ordinary 100% ASH
Shares
Caterair Airport Properties, Inc. ("CAP") Common 100% CNZ
Caterair Australia Pty. Ltd. ("Aust") Ordinary; 100% CAP
Preferred
Caterair Airport Services Pty. Ltd. ("Pty") Classes 51%▇▇ ▇▇▇▇
A&B
Caterair Airport Services (Sydney) Pty. Ltd. Ordinary 51% Pty
Waruda Holdings Pty., Ltd. ("Waruda") Common 51% Pty
Cairns Wholesale Bakery Pty., Ltd. Common 51% Waruda
-2-
176
Class of % of Direct
Name Stock Ownership Owner
---- ----- --------- -----
Western Aire Chef, Inc. Common 100% ASH
Sky Chefs Chile, S.A. ("Chile") ---- 100% Western Aire
Caterair Servicos Industriales, Ltda. ---- 94% Chile
Comercializadora de Servicios, Ltda. 91% Chile
LSG Lufthansa Service Sky Chefs France, ---- 100% ASH
S.A.
Marriott In-Flite Services of Korea, Ltd. ---- 100% ASH
Arlington Services de Panama S.A. ("ASP") 100% ASH
Inversiones Turisticas Aeropuerto Panama, Nominal 100% ASP
S.A. ("ITAP") Common
Sky Chefs de Panama S.A. ---- 100% ITAP
Caterair Portugal - Assistencia a Bordo ---- 26% CAP (26%)
Limitada
Caterair Barcelona, S.A. Registered 100% ASH (80%)
Shares Caterair Madrid
(20%)
Caterair Madrid, S.A. Registered 100% ASH
Shares
Caterair Taiwan Inflight Services, Inc. ---- 100% Caterair New
Zealand, Ltd.
Sky Chefs-UK, Ltd. Ordinary 100% ASH
Shares
LSG Sky Chefs Venezuela C.A. ---- 100% ASH
Arlington Services Mexico, S.A. de C.V. Class A&B 100% ASH
("Mexico") Registered
Shares
Caterair de Mexico, S.A. de C.V. Series B 100% Mexico
Casa ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇.▇. de C.V. Fixed; 100% Mexico
Variable
-3-
177
Comisariato Gotre, S.A. 2 Series 100% Mexico
Bearer
Shares
Cocina del Aire Provincia, S.A. de C.V. Registered 100% Mexico
Shares
Immobiliaria Marracas, S.A. de C.V. Nominal 100% Mexico
Shares,
2 classes
Sky Chefs de Mexico, S.A. de C.V. ---- 100% Mexico
Subsidiaries of Caterair Holdings Corporation ("Holdings"):
Class of % Holdings' Direct
Name Stock Ownership Owner
---- ----- --------- ------
Caterair International Corporation ("CIC") Common 100% Holdings
Caterair Portugal - Assistencia A Bordo ---- 74% CIC
Limitada
-4-
178
SCHEDULE VII
EXISTING INDEBTEDNESS
OF SCIS, CIC
AND THEIR
RESPECTIVE SUBSIDIARIES
As required by Section 7.22(a) of the Credit Agreement, this schedule
details, by entity, all the obligations for borrowed money, all obligations
evidenced by bonds, debentures, notes, etc., all deferred purchase price
obligations other than trade accounts payable, all capitalized leases, all
letters of credit and banker's acceptances, all third party debt secured by a
lien, all guarantees and all interest rate protection agreements or other
hedging agreements, exclusive of the loans under the Credit Agreement and the
Term Loan Agreement, the letters of credit listed on Schedule III, the Senior
Subordinated Notes, the Caterair Holdings Unsecured Debentures, the Caterair
Holdings Secured Note, and the SCIS/Caterair Loan, as of the Restatement
Effective Date:
Borrowing Principal
Entity Lender/Lessor Amount Guarantor
------ ------------- ------ ---------
Onex Food Services, Inc. ---None---
Caterair Holdings Corporation ---None---
Sky Chefs, Inc. SC International Services, Inc. $99,326,452 None
Sky Chefs, Inc. (ORD) American Airlines $ 4,432,245 None
Sky Chefs, Inc. (DFW) American Airlines $13,500,000 None
Sky Chefs, Inc. (BNA) American Airlines $ 5,053,341 None
Sky Chefs, Inc. (RDU) American Airlines $ 3,404,690 None
Sky Chefs, Inc. (TUL) American Airlines $ 479,938 None
Sky Chefs, Inc. (TUS) Tucson Airport Authority $ 279,015 None
Caterair International, Inc. (II) SC International Services, Inc. $27,612,618 None
Bethesda Services, Inc. ---None--
Caterair New Zealand Limited SC Int'l Services Ireland $ 2,651,600 None
179
Borrowing Principal
Entity Lender/Lessor Amount Guarantor
------ ------------- ------ ---------
Cateringpor Sky Chefs, Inc. $ 2,669,490 None
Arlington Services, Inc. Sky Chefs, Inc. $32,439,960 None
Arlington Services Holding Arlington Services, Inc. $25,116,726 None
Corporation
LSG-Sky Chefs do Brasil Sky Chefs, Inc. $ 7,726,151 None
Catering-Refeicoes Ltda. Arlington Services Holding Corp. $ 2,000,000 None
Boavista Bank $ 1,000,000 None
Garantida Bank $ 3,731,366 None
ServCater Internacional Ltda. Sky Chefs, Inc. $ 3,731,366 None
Onex Ohio Acceptance SC International Services, Inc. $ 303,338 None
Corporation
Onex Ohio Credit Corp. SC International Services, Inc. $ 4,034,553 None
Onex Ohio Equity Corp. SC International Services, Inc. $ 213,812 None
Onex Ohio Finance Corp. SC International Services, Inc. $ 106,149 None
Onex Ohio Finance Corp. II SC International Services, Inc. $ 43,256 None
Onex Ohio Capital Corp. SC International Services, Inc. $ 94,613 None
Onex Ohio Fiscal Corp. SC International Services, Inc. $ 102,425 None
Onex Ohio Funds Corp. SC International Services, Inc. $ 108,656 None
Onex Ohio Credit Corp. II SC International Services, Inc. $ 47,521 None
Onex Ohio Funds Corp. II SC International Services, Inc. $ 33,876 None
Onex Ohio Fiscal Corp. II SC International Services, Inc. $ 45,938 None
Onex Ohio Equity Corp. II SC International Services, Inc. $ 46,448 None
Onex Ohio Capital Corp. II SC International Services, Inc. $ 34,474 None
-2-
180
Borrowing Principal
Entity Lender/Lessor Amount Guarantor
------ ------------- ------ ---------
Caterair International City of Houston $ 2,025,000 None
Corporation
Caterair International SC International Services, Inc. $40,811,040 None
Corporation
Caterair Consulting Services ---None---
Corporation
JFK Caterers, Inc. ---None--
Caterair St. ▇▇▇▇▇▇ Holdings ---None---
Corporation
Western Aire Chef, Inc. ---None--
Caterair Airport Properties, Inc. ---None--
Sky Chefs Argentine, Inc. SC Int'l Services Ireland $14,088,729 None
Arlington Services Holding $ 800,000 None
Caterair International Transition
Corporation ---None---
Cater Suprimento de Refeicoes, LSG Sky Chefs doBrasil $ 149,286 None
Ltda. LSG/Sky Chefs Chile $ 2,000,000 None
Cocina del Aire $ 300,000 None
SC Int'l Services Ireland $ 2,152,967 None
Servcater $ 39,766 None
LSG/Sky Chefs Chile, S.A. Banco Credito Inversiones $ 1,318,684 None
Banco Boston $ 4,878 None
Caterair Madrid, S.A. La Caixa $ 57,964 None
Caterair Barcelona, S.A. $ 945,918 None
LSG Sky Chefs France $ 10,869 None
Caterair Taiwan Dah An Comm $ 1,742,160 None
In-Flite Services, Inc. Caterair International, Inc. (II) $ 1,209,056 None
-3-
181
Borrowing Principal
Entity Lender/Lessor Amount Guarantor
------ ------------- ------ ---------
LSG/Sky Chefs SC Int'l Services Ireland $ 650,000 None
Venezuela C.A.
Caterair Airport Westpac $ 3,109,564 None
Services (Sydney)
LSG/Sky Chefs France, S.A. Selectbank $ 1,360,429 None
B.N.P. $ 850,268 None
Banque De Picardie $ 154,281 None
Cocina del Aire $ 350,000 None
Sky Chefs-UK, Ltd. $ 9,238 None
Caterair Australia Pty. Ltd. Caterair Airport $ 1,099,785 None
Properties, Inc.
Caterair Airport Services Caterair Airport Services $ 5,534,625 None
Pty. Ltd. Westpac $ 1,489,197 None
Westpac $ 1,325,895 None
Sky Chefs-U.K., Ltd. Midland Bank $ 2,204,591 None
Forward Trust Co. $ 32,599
SC Int'l Services Ireland $10,058,822 None
LSG/Sky Chefs Chile $ 1,500,000 None
Caterair Barcelona, S.A. SC Int'l Services Ireland $ 1,012,193 None
Caterair Portugal - Caterair Madrid $ 4,332 None
Assistancia A Bordo, Ltda. Caterair Barcelona $ 19,442 None
Sky Chefs-U.K., Ltd. $ 405,434 None
LSG-Sky Chefs do Brasil $ 2,742 None
Sky Chefs Canada, Limited $ 25,083 None
SC Int'l Services $ 1,886,525 None
Sky Chefs de Panama Riande Continental Airport $ 60,000 None
Arlington Services Panama, SC Int'l Services Ireland $ 3,000,000 None
S.A.
Sky Chefs Canada Ltd. SC Int'l Services, Inc. $13,558,780 None
-4-
182
Borrowing Principal
Entity Lender/Lessor Amount Guarantor
------ ------------- ------ ---------
Sky Chefs de Mexico Immobilaria Marracas $ 48,288 None
Arlington Services Mexico $ 45,080 None
Casa ▇▇▇▇▇ de ▇▇▇▇ Sky Chefs de Mexico $ 262,344 None
Comisariatos Gotre Sky Chefs de Mexico $ 6,058 None
Arlington Services Mexico Casa ▇▇▇▇▇ de ▇▇▇▇ $ 35,890 None
all existing Interest Swap Obligations in connection with an Interest Rate
Protection Agreement between SCIS and ▇▇▇▇▇▇ Guaranty Trust Company of New York
or an affiliate of ▇▇▇▇▇▇ Guaranty Trust Company of New York;
and all Capitalized Lease Obligations and purchase money Indebtedness in
existence on the Restatement Effective Date. The aggregate amount of such
purchase money Indebtedness and Capitalized Lease Obligations outstanding at
June 30, 1997 approximated $31,800,000.
-5-
183
SCHEDULE VIII
CLASS B ASSETS OF OFSI
This schedule details the Class B Assets of OFSI as of August 25, 1997:
(a) Cash and short term investments in the amount U.S $6,266,000;
and
(b) 3,890,700 shares of subordinate voting stock of Onex
Corporation.
184
S C International Services
Risk Management Department
SCHEDULE IX
INSURANCE
Line of Coverage Coverage Policy Expiry Company
----------------------------------------------------------------------------------------------------------------
Aviation Liability 200 MM with a 500,000 per 5/29/98 Various Insurers through
case deductible and a Alexander Howdan Aviation
1,000,000 agg limit deductible
----------------------------------------------------------------------------------------------------------------
Foreign Auto, General
Liability 3,000,000 5/29/98 American International
& Workers' Compensation Underwriters
----------------------------------------------------------------------------------------------------------------
All Risk Property Insurance Total Insured values of 1.3 BN 3/1/98 Allianz / IRI
Various deductibles & limits
----------------------------------------------------------------------------------------------------------------
Automobile liability
(off Airport) 3,000,000 Aggregate Limits 5/29/98 St. ▇▇▇▇ Fire & Marine
250,000 Deductible
1,000,000 Aggregate Deductible
----------------------------------------------------------------------------------------------------------------
General Liability
(Off Airport) 3,000,000 Aggregate Limits 5/29/98 St. ▇▇▇▇ Fire & Marine
250,000 Deductible
1,000,000 Aggregate Deductible
----------------------------------------------------------------------------------------------------------------
Surety Bonds 4,405,000 Various Various
----------------------------------------------------------------------------------------------------------------
Umbrella Liability 200 MM CDN 1O/l5/97 Various (layered policy)
Onex Placement
----------------------------------------------------------------------------------------------------------------
Directors and Officers Liability 100 MM CDN 11/15/97 Various (layered policy)
Onex Placement 250,000 CDN Deductible
----------------------------------------------------------------------------------------------------------------
Fiduciary Coverage 25 MM CDN Limit of Liability Chubb Insurance Company
Onex Placement 5,000 CDN Deductible 11/15/97 Reliance Insurance Co. of CD
----------------------------------------------------------------------------------------------------------------
Crime 10 MM CDN 11/15/96 Chubb Insurance Company
Onex Placement 25,000 CDN Deductible
----------------------------------------------------------------------------------------------------------------
Special Crime (K & R) 15 MM CDN 11/15/96 Chubb Insurance Company
Onex Placement 0 Deductible
----------------------------------------------------------------------------------------------------------------
WORKERS' COMPENSATION - LSG/SKY Chefs only
----------------------------------------------------------------------------------------------------------------
All Other States Statutory 5/29/98 St. ▇▇▇▇ Insurance Company
250,000 "Deductible"
----------------------------------------------------------------------------------------------------------------
California only Statutory 5/29/98 California Workers Comp Fun
Guaranteed Cost
----------------------------------------------------------------------------------------------------------------
Texas only Non Subscriber 5/29/98 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
ERISA Plan (Administrator)
----------------------------------------------------------------------------------------------------------------
Nevada Statutory 5/29/98 State Industrial
Insurance System
----------------------------------------------------------------------------------------------------------------
Ohio Statutory 5/29/98 Bureau of Workers' Comp.
Acordia - Administrator
----------------------------------------------------------------------------------------------------------------
Washington Statutory 5/29/98 Dept. of Labor & Industries
----------------------------------------------------------------------------------------------------------------
WORKERS' COMPENSATION - Caterair International, Inc.
----------------------------------------------------------------------------------------------------------------
California only Statutory 5/29/98 California Workers Comp Fun
Guaranteed Cost
----------------------------------------------------------------------------------------------------------------
Maryland Statutory 10/3/96 Maryland State Fund
----------------------------------------------------------------------------------------------------------------
All Other States Statutory 5/29/98 St. ▇▇▇▇ Insurance Company
----------------------------------------------------------------------------------------------------------------
Line of Coverage Policy Number Premium
-------------------------------------------------------------------------------------------
Aviation Liability AM9731471 2,690,000
-------------------------------------------------------------------------------------------
Foreign Auto, General
Liability 80-263823 47,288
& Workers' Compensation plus local Premium
-------------------------------------------------------------------------------------------
All Risk Property Insurance CLP1025618 721,000
Various deductibles & limits
-------------------------------------------------------------------------------------------
Automobile liability
(off Airport) 002JA3912-1 154,512
002JA3912 (plus PD loss, Retro, etc.)
-------------------------------------------------------------------------------------------
General Liability
(Off Airport) 502JA2028 65,000
(plus PD loss, Retro, etc.)
-------------------------------------------------------------------------------------------
Surety-Bonds 75,000
-------------------------------------------------------------------------------------------
Umbrella Liability Various 127,446 CDN
Onex Placement
-------------------------------------------------------------------------------------------
Directors and Officers Liability 8108-17-42F 218,000 CDN
Onex Placement ▇▇▇-▇▇-▇▇
-------------------------------------------------------------------------------------------
Fiduciary Coverage 8108-14-94G 24,200 CDN
Onex Placement TBA
-------------------------------------------------------------------------------------------
Crime 8108-17-43G 162,OOO CDN
Onex Placement
-------------------------------------------------------------------------------------------
Special Crime (K & R) 8133-95-41C 4,400 CDN
Onex Placement
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
All Other States WVA0201983 842,000
WVA0201984 (plus PD loss, Retro, etc.)
Anticipated costs 6,844,050
-------------------------------------------------------------------------------------------
California only 1484367 1,011,000
-------------------------------------------------------------------------------------------
Texas only 0100-S-00000-530 55,000
(plus PD loss, Retro, etc.)
-------------------------------------------------------------------------------------------
Nevada 219665.1 180,000
-------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇-▇ 90,000
-------------------------------------------------------------------------------------------
Washington 897,▇▇▇-▇▇▇ ▇▇▇,000
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
California only 1484366 1,100,000
-------------------------------------------------------------------------------------------
Maryland 10255546-1 150,000
-------------------------------------------------------------------------------------------
All Other States WVA 0201985 1,520,400
(plus PD loss, Retro, etc.)
-------------------------------------------------------------------------------------------
185
CERTIFICATE OF INSURANCE
------------------------
CERTIFICATE NUMBER: 0214
This is to certify to ▇▇▇▇▇▇ Guaranty Trust Company of New York
as Collateral Agent
whose address is that SC International Services, Inc., Sky Chefs, Inc.
and Caterair International Services, Inc.
Attn: ▇▇▇▇ ▇▇▇▇▇▇
whose address is ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Kind of Insurance Inception Date Expiration Date Limits of Coverage
05/29/97 05/29/98
--------------------------------------------------------------------------------
AIRPORT LIABILITY
Single Liability Coverage for Each Occurrence
Bodily Injury and Property Damage $200,000,000
(Comprehensive General Liability, Contractual, Personal
Injury and On-Premises Auto)
*REFER TO THE POLICY. AN ANNUAL AGGREGATE LIMIT APPLIES TO SOME COVERAGES.
--------------------------------------------------------------------------------
OTHER COVERAGES/CONDITIONS/REMARKS
The Certificate Holder is included as Additional Insured, but only as respects
operations of the Named Insured.
If this insurance is canceled for any reason whatever which affects the interest
of the certificate holder insurers agree to provide thirty (30) days prior
written notice of such cancellation.
--------------------------------------------------------------------------------
SECURITY Percentage of Subscription Policy Number
VARIOUS INSURERS THROUGH ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ AVIATION 100% AM9731471
Subscribing Lloyds Underwriters for
percentages as on file with ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Aviation.
Subscribing Insurance Companies for
percentages as on file with ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Aviation.
Each of the above Insurers has authorized Alexander & Alexander of Texas Inc. to
issue this certificate on its behalf. Alexander & Alexander is not an insurer
and has no liability of any sort under the above policies nor as a result of the
issuance of this certificate.
The subscribing insurer's obligations under contracts of insurance to which they
subscribe are several and not joint and are limited solely to the extent of
their individual subscriptions. The subscribing insurers are not responsible for
the subscription of any co-subscribing insurer who for any reason does not
satisfy all or part of its obligation.
This certificate of verification of insurance is not an insurance policy and
does not amend, extend or alter the coverage afforded by the policies listed
herein. Notwithstanding any requirement, term, or condition of any contract or
other document with respect to which this certificate or verification of
insurance may be issued or may pertain, the insurance afforded by the policies
described herein is subject to all terms, exclusions and conditions of such
policies.
ALEXANDER & ALEXANDER OF TEXAS
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ [ILLEGIBLE] August 6, 1997
---------------------------- ----------------------------
Authorized Representative Date
186
================================================================================
CERTIFICATE OF INSURANCE ISSUE DATE (MM/DD/YY): 6-Aug-97
================================================================================
THIS CERTIFICATE IS ISSUED AS A MATTER
PRODUCER OF INFORMATION ONLY AND CONFERS NO
RIGHTS UPON THE CERTIFICATE HOLDER.
THIS CERTIFICATE DOES NOT AMEND,
EXTEND OR ALTER THE COVERAGE AFFORDED
BY THE POLICIES BELOW.
AON Risk Services, Inc. of New York --------------------------------------
Two World Trade Center COMPANIES AFFORDING COVERAGE
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ --------------------------------------
COMPANY The Insurance Company of the
A State of Pennsylvania
--------------------------------------------------------------------------------
INSURED COMPANY
S C International Services, Inc. B
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. --------------------------------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ COMPANY
C
--------------------------------------
COMPANY
D
--------------------------------------
COMPANY
E
--------------------------------------
================================================================================
COVERAGE
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED
TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT
TO WHICH THIS CERTIFICATE MAY BE ISSUED OR OTHER DOCUMENT WITH RESPECT TO WHICH
THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE
POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS
OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
----------------------------------------------------------------------------------------------
CO POLICY EFFECTIVE POLICY EXPIRATION
LTD TYPE OF INSURANCE POLICY NUMBER DATE (MM/DD/YY) DATE (MM/DD/YY)
----------------------------------------------------------------------------------------------
A GENERAL LIABILITY ▇▇-▇▇▇▇▇▇▇ 29-May-97 29-May-98
|X| COMMERCIAL GENERAL LIABILITY
|_||_| CLAIMS MADE |X| OCCUR
|_| OWNER'S & CONT PROT
|_|____________________
--------------------------------------
A AUTOMOBILE LIABILITY Excess
DIC ▇▇-▇▇▇▇▇▇▇ 29-May-97 29-May-98
|_| ANY AUTO
|_| ALL OWNED AUTOS
|_| SCHEDULED AUTOS
|_| HIRED AUTOS
|_| NON-OWNED AUTOS
--------------------------------------
GARAGE LIABILITY
|_| ANY AUTO
----------------------------------------------------------------------------------------------
EXCESS LIABILITY
|_| UMBRELLA FORM
|_| OTHER THAN UMBRELLA FORM
--------------------------------------
A WORKER'S COMPENSATION 83-46763 29-May-97 29-May-98
AND EMPLOYERS' LIABILITY
THE PROPRIETOR/PARTNERS/ INCL.
EXECUTIVE OFFICERS ARE: EXCL.
----------------------------------------------------------------------------------------------
OTHER - Property Damage, Business
Interruption and Boiler &
Machinery Program
----------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
--------------------------------------------------------------------------------
CO
LTD TYPE OF INSURANCE LIMITS
--------------------------------------------------------------------------------
A GENERAL LIABILITY GENERAL AGGREGATE $ 3,000,000
|X| COMMERCIAL GENERAL LIABILITY PRODUCTS/COMP/OP AGG Included
|_||_| CLAIMS MADE |X| OCCUR PERSONAL & ADV. INUURY Included
|_| OWNER'S & CONT PROT EACH OCCURRENCE $ 3,000,000
|_|____________________ FIRE DAMAGE (Any
one fire) $ 50,000
MED. EXP. (Any one
-------------------------------------- person) $ 5,000
A AUTOMOBILE LIABILITY Excess
DIC COMBINED SINGLE LIMIT $ 3,000,000
|_| ANY AUTO BODILY INJURY
|_| ALL OWNED AUTOS (Per person)
|_| SCHEDULED AUTOS BODILY INJURY
|_| HIRED AUTOS (Per accident)
|_| NON-OWNED AUTOS PROPERTY DAMAGE
--------------------------------------
GARAGE LIABILITY AUTO ONLY-EA. ACCIDENT
|_| ANY AUTO OTHER THAN AUTO ONLY:
EACH ACCIDENT
AGGREGATE
--------------------------------------------------------------------------------
EXCESS LIABLITY EACH OCCURRENCE
|_| UMBRELLA FORM AGGREGATE
|_| OTHER THAN UMBRELLA FORM
--------------------------------------
A WORKER'S COMPENSATION |X| STATUTORY LIMITS
AND EMPLOYERS' LIABILITY EACH ACCIDENT
THE PROPRIETOR/PARTNERS/ INCL. DISEASE-POLICY LIMIT
EXECUTIVE OFFICERS ARE: EXCL. DISEASE-EACH EMPLOYEE
--------------------------------------------------------------------------------
OTHER - Property Damage, Business
Interruption and Boiler &
Machinery Program
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CERTIFICATE HOLDER CANCELLATION
--------------------------------------------------------------------------------
▇▇▇▇▇▇ Guarantee Trust Company of New York SHOULD ANY OF THE ABOVE DESCRIBED
As additional Named Insured and Loss Payee POLICIES BE CANCELED BEFORE THE
EXPIRATION DATE THEREOF. THE
ISSUING COMPANY WILL ENDEAVOR TO
MAIL 30 DAYS WRITTEN NOTICE TO
THE CERTIFICATE HOLDER NAMED TO
THE LEFT, BUT FAILURE TO MAIL
SUCH NOTICE SHALL IMPOSE NO
OBLIGATION OR LIABILITY OF ANY
KIND UPON THE COMPANY, ITS AGENTS
OR REPRESENTATIVES.
---------------------------------
AUTHORIZED REPRESENTATIVE
/s/ [ILLEGIBLE]
---------------------------------
Page 1 of 1
187
================================================================================
CERTIFICATE OF INSURANCE ISSUE DATE (MM/DD/YY)
08/07/97
================================================================================
THIS CERTIFICATE IS ISSUED AS A MATTER
PRODUCER OF INFORMATION ONLY AND CONFERS NO
RIGHTS UPON THE CERTIFICATE HOLDER.
THIS CERTIFICATE DOES NOT AMEND,
EXTEND OR ALTER THE COVERAGE AFFORDED
BY THE POLICIES BELOW.
AON Risk Services, Inc. of New York --------------------------------------
Two World Trade Center COMPANIES AFFORDING COVERAGE
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ --------------------------------------
COMPANY ST. ▇▇▇▇ FIRE & MARINE
A INSURANCE COMPANY
--------------------------------------------------------------------------------
INSURED COMPANY
SC INTERNATIONAL SERVICES, INC. B STATE COMPENSATION INS. FUND
& CATERAIR INTERNATIONAL, INC. --------------------------------------
& SKY CHEFS, INC. COMPANY
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. C ALLIANZ INSURANCE COMPANY
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ --------------------------------------
COMPANY
D
--------------------------------------
COMPANY
E
--------------------------------------
================================================================================
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED
TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT
TO WHICH THIS CERTIFICATE MAY BE ISSUED OR OTHER DOCUMENT WITH RESPECT TO WHICH
THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE
POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS
OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
----------------------------------------------------------------------------------------------------
CO POLICY EFFECTIVE POLICY EXPIRATION
LTD TYPE OF INSURANCE POLICY NUMBER DATE (MM/DD/YY) DATE (MM/DD/YY)
----------------------------------------------------------------------------------------------------
A GENERAL LIABILITY 502JA2087 05/29/97 05/29/98
|X| COMMERCIAL GENERAL LIABILITY
|_||_| CLAIMS MADE |X| OCCUR.
|_| OWNER'S & CONTRACTOR'S PROT.
|_| ___________________________
----------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY
A |X| ANY AUTO 002 JA 4017 (TX) 05/29/97 05/29/98
A |_| ALL OWNED AUTOS 002 JA 4016 (A/O/S) 05/29/97 05/29/98
A |_| SCHEDULED AUTOS 060 MA 3625 (MA) 05/29/97 05/29/98
|_| HIRED AUTOS OFF AIRPORT
|_| NON-OWNED AUTOS
|_| GARAGE LIABILITY
|_|
----------------------------------------------------------------------------------------------------
EXCESS LIABILITY
|_| UMBRELLA FORM
|_| OTHER THAN UMBRELLA FORM
----------------------------------------------------------------------------------------------------
A WORKER'S COMPENSATION WVA0201983 DED 05/29/97 05/29/98
A AND EMPLOYERS' LIABILITY WVA0201984 WI 05/29/97 05/29/98
B 1484367 (CA) 05/29/97 05/29/98
A WVA021985 05/29/97 05/29/98
----------------------------------------------------------------------------------------------------
B OTHER WORKERS COMP. & 1484366 (CA) 05/29/97 05/29/98
EMP. LIAB.
C ALL RISK PROPERTY CLP 1025618 03/01/97 03/01/98
----------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CO
LTD TYPE OF INSURANCE LIMITS
--------------------------------------------------------------------------------
A GENERAL LIABILITY GENERAL AGGREGATE $ 3,000,000
|X| COMMERCIAL GENERAL LIABILITY PROD.-COMP/OP AGG. $ 3,000,000
|_||_| CLAIMS MADE |X| OCCUR. PERSONAL & ADV.
INJURY $ 3,000,000
|_| OWNER'S & CONTRACTOR'S PROT. EACH OCCURRENCE $ 3,000,000
|_| FIRE DAMAGE (Any
one fire) $ 3,000,000
MED. EXP. (Any one
person) $ 10,000
--------------------------------------------------------------------------------
AUTOMOBILE LIABILITY
DIC COMBINED SINGLE LIMIT $ 3,000,000
A |X| ANY AUTO BODILY INJURY
A |_| ALL OWNED AUTOS (Per person)
A |_| SCHEDULED AUTOS BODILY INJURY
|_| HIRED AUTOS (Per accident)
|_| NON-OWNED AUTOS PROPERTY DAMAGE
|_| GARAGE LIABILITY
|_|
--------------------------------------------------------------------------------
EXCESS LIABLITY EACH OCCURRENCE
|_| UMBRELLA FORM AGGREGATE
|_| OTHER THAN UMBRELLA FORM
--------------------------------------------------------------------------------
A WORKER'S COMPENSATION |X| STATUTORY LIMITS
A AND EMPLOYERS' LIABILITY EACH ACCIDENT $ 1,000,000
B DISEASE-POLICY LIMIT $ 1,000,000
A DISEASE-EACH EMPLOYEE $ 1,000,000
--------------------------------------------------------------------------------
B OTHER WORKERS COMP. & SEE ABOVE
EMP. LIAB.
C ALL RISK PROPERTY $10,000,000 REAL & PERS.
PROP. INCL. IMPROVEMENTS
--------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK AS COLLATERAL AGENT IS INCLUDED AS
ADDITIONAL INSURED AND LOSS PAYEE EXCEPT FOR WORKERS COMPENSATION BUT ONLY WITH
RESPECTS TO THE OPERATIONS AND/OR CONTRACTUAL AGREEMENT WITH THE NAMED INSURED.
--------------------------------------------------------------------------------
CERTIFICATE HOLDER CANCELLATION
--------------------------------------------------------------------------------
▇▇▇▇▇▇ Guaranty Trust Company of New York SHOULD ANY OF THE ABOVE DESCRIBED
POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE
ISSUING COMPANY WILL MAIL 30 DAYS
WRITTEN NOTICE TO THE CERTIFICATE
HOLDER NAMED TO THE LEFT
-----------------------------------
AUTHORIZED REPRESENTATIVE
/s/ [ILLEGIBLE]
-----------------------------------
188
[LETTERHEAD OF AON ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ INC.]
Memorandum of Insurance
No. L197 / 96-97 AMENDED
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Collateral Agent
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Memorandum of Insurance
Re: Evidence of Insurance for SC
International Services, Inc.
Insurance as described herein has been arranged on behalf of the insured named
herein under the following policy(ies) and as more fully described by the terms,
conditions, exclusions and provisions contained in the said policy(ies) and any
endorsements attached thereto.
Insured: Onex Corporation et al including, SC International Services, Inc. et al
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
---------------------------------------------------------------------------------------------------------
Policy Policy
Coverage: Insurer Policy No. Eff. Date Exp. Date Limit(s) of Liability
not less than
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Umbrella Liability Chubb Insurance Company 79747695 April 17/97 Oct. 15/97 $20,000,000 INCLUSIVE Bodily
Injury and Property Damage subject
to aggregate where applicable
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
1st Excess Reliance Insurance Company TXL0001221 Oct. 15/96 Oct. 15/97 $10,000 IN EXCESS of
underlying
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
2nd Excess Liberty / Reliance / Royal LQ1-B71-030057- Oct. 15/96 Oct. 15/97 Limit of not less than $20,000,000
036 / Annual Aggregate excess of
TXL0001222 / scheduled underlying policies
6088945
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
3rd Excess Chubb Insurance Company 7974753 Oct. 15/96 Oct. 15/97 Limit of not less than $10,000,000
Annual Aggregate excess of
scheduled underlying policies
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
4th Excess Cigna Insurance Company XCP373280 Oct. 15/96 Oct. 15/97 Limit of not less than $30,000,000
Annual Aggregate excess of
scheduled underlying policies
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
5th Excess Royal Insurance Company 60284559 Oct. 15/96 Oct. 15/97 Limit of not less than $5,000,000
Annual Aggregate excess of
scheduled underlying policies
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
6th Excess Zurich Canada 8815305 Oct. 15/96 Oct. 15/97 Limit of not less than $10,000,000
Annual Aggregate excess of
scheduled underlying policies
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
7th Excess Royal Insurance Company 60284560 Oct. 15/96 Oct. 15/97 Limit of not less than $10,000,000
Annual Aggregate excess of
scheduled underlying policies
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
8th Excess Scottish & York Insurance IE50077 Oct. 15/96 Oct. 15/97 Limit of not less than $10,000,000
Annual Aggregate excess of
scheduled underlying policies
---------------------------------------------------------------------------------------------------------
THE POLICY CONTAINS A CLAUSE THAT MAY LIMIT THE AMOUNT PAYABLE
OR, IN THE CASE OF AUTOMOBILE INSURANCE,
189
[LETTERHEAD OF AON ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ INC.]
Memorandum of Insurance
No. L197 / 96-97 AMENDED
---------------------------------------------------------------------------------------------------------------------
9th Excess Royal Insurance Company 60284561 Oct. 15/96 Oct. 15/97 Limit of not less than $5,000,000
Annual Aggregate excess of
scheduled underlying policies
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
10th Excess Lombard Canada / 3597946 / Oct. 15/96 Oct. 15/97 Limit of not less than $20,000,000
Guardian 4301019 Annual Aggregate excess of
scheduled underlying policies
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
11th Excess Scottish & York/ IE50078 / Oct. 15/96 Oct. 15/97 Limit of not less than $20,000,000
Cigna XCP373281 Annual Aggregate excess of
scheduled underlying policies
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
12th Excess Chubb Atlantic Indemnity (97) 3310-01-67 Oct. 15/96 Oct. 15/97 Limit of not less than $30,000,000
Annual Aggregate excess of
scheduled underlying policies
---------------------------------------------------------------------------------------------------------------------
Additional Only with respect to the above and arising out of the Named
Insured: Insured's operations is the following name added to the policy
as an Additional Insured. The policy limits are not increased
by the addition of such Additional Insured and remain as
stated in this Memorandum.
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Collateral Agent
Cancellation/ The Insurer will endeavour to provide THIRTY (30) days written
Termination: notice of cancellation/termination or adverse material change
to the Addressee.
This memorandum constitutes a statement of the facts as of the
date of issuance and are so represented and warranted only to
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Collateral
Agent; other persons relying on this memorandum do so at their
own risk.
Aon ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Technical Services
Direct Line: (▇▇▇) ▇▇▇-▇▇▇▇
Dated August 25, 1997, at Toronto, Ontario
THE POLICY CONTAINS A CLAUSE THAT MAY LIMIT THE AMOUNT PAYABLE
OR, IN THE CASE OF AUTOMOBILE INSURANCE,
190
[LETTERHEAD OF AON ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ INC.]
Memorandum of Insurance
No. E8 / 96-97 AMENDED
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Collateral Agent
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Evidence of Insurance for SC International Services, Inc.
Insurance as described herein has been arranged on behalf of the insured named
herein under the following policy(ies) and as more fully described by the terms,
conditions, exclusions and provisions contained in the said policy(ies) and any
endorsements attached thereto.
Insured: Onex Corporation et al including SC International Services, Inc. et al
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
-----------------------------------------------------------------------------------------------------
Policy Policy
Coverage: Insurer Policy No. Eff. Date Exp. Date Limit(s) of Liability not less
than
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Directors' and Officers' Chubb Insurance Company 8108-17-42G Nov. 15/96 Nov. 15/97 $25,000,000 each loss and each
Liability policy period
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
1st Excess D&O Liberty International Canada LN1-B71-030057 Nov. 15/96 Nov. 15/97 $25,000,000 in excess of
046 primary D&O Policy shown above.
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
2nd Excess D&O Cigna Insurance Company DOX 007326 Nov. 15/96 Nov. 15/97 $35,000,000 in excess of First
excess and primary D&O Policy
shown above.
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
3rd Excess D&O Reliance Insurance Company TDO 0001305 Nov. 15/96 Nov. 15/97 $15,000,000 in excess of
Second excess, First excess
and primary D&O Policy shown
above.
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Comprehensive Crime Chubb Insurance Company 8109-17-43H Nov. 15/96 Nov. 15/97 $10,000,000
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Fiduciary Liability Chubb Insurance Company 8108-14-94G Nov. 15/96 Nov. 15/97 $15,000,000
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
1st Excess Fiduciary Reliance Insurance TDO 0001304 Nov. 15/96 Nov. 15/97 $10,000,000 in excess of
primary Fiduciary Policy shown
above
-----------------------------------------------------------------------------------------------------
Cancellation/ The Insurer will endeavour to provide THIRTY (30) days
Termination: written notice of cancellation or adverse material
change to the Addressee.
THE POLICY CONTAINS A CLAUSE THAT MAY LIMIT THE AMOUNT PAYABLE
OR, IN THE CASE OF AUTOMOBILE INSURANCE.
191
[LETTERHEAD OF AON ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ INC.]
MEMORANDUM OF INSURANCE
No. E8/96-97 AMENDED
This memorandum constitutes a statement of the facts as of the date of issuance
and are so represented and warranted only to ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Collateral Agent; other persons relying on this memorandum do so at
their own risk.
AON ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Technical Services
Direct Line: (▇▇▇) ▇▇▇-▇▇▇▇
Dated August 25, 1997, at Toronto, Ontario
THE POLICY CONTAINS A CLAUSE THAT MAY LIMIT THE AMOUNT PAYABLE
OR, IN THE CASE OF AUTOMOBILE INSURANCE.
192
SCHEDULE X
EXISTING LIENS
This schedule sets forth the liens in existence on the Restatement
Effective Date to be included in the definition of Permitted Liens:
All liens placed on assets subject to Capitalized Lease
Obligations and to secure purchase money Indebtedness which are in
existence on the Restatement Effective Date. The aggregate amount of
such purchase money Indebtedness and Capitalized Lease Obligations
outstanding at June 30, 1997 approximated $31,800,000.
193
SCHEDULE XI
EXISTING INVESTMENTS
Pursuant to Section 9.05(vi) of the SCIS Credit Agreement, this
schedule details (direct or indirect) loans, credit extensions, advances, stock
or security purchases/acquisitions, interests, capital contributions, futures
contracts, currency or commodity options of OFSI, Caterair Holdings and their
respective Subsidiaries on the Restatement Effective Date:
In addition to the investments in the Subsidiaries listed on Schedule
VI,
Aerococina S.A. de C.V. - 49% interest
Airport Restaurants (1992) Limited - 49% interest
Antigua Catering Services Limited - 49% interest
Anchorage Caterers, Inc. - 49% interest
Barbados Flight Kitchen Limited - 49% interest
Inflight Holdings (Cayman) Ltd. - 49% interest
Industrial Catering Services (Cayman) Ltd. - 49% interest
Godca S.A. - 49% interest
Cayman Catering Services Ltd. - 49% interest
Belixe Inflight Services (Cayman) - 49% interest
Belixe Inflight Services Limited - 49% interest
Cocina del Aire (Cayman) Ltd. - 49% interest
Cocina del Aire S.A. de C.V. - 49% interest
Ecuador Inflight Services (Cayman) Ltd. (LLC) - 49% interest
Cateraire del Ecuador - 30% interest
Grenada Inflight (Cayman) Ltd. - 49% interest
Inflight Caterers (Grenada) Ltd. - 25% interest
St. Maarten In-flight (Cayman) N.V. - 49% interest
St. Maarten In-flight Services N.V. - 49% interest
Cocina de Vuelos, S.A. de C.V. (LLC) - 49% interest
Gulf International Caterers, W.L.L. - 49% interest
St. ▇▇▇▇▇▇ Catering Corporation - 37% interest
Abidjan Catering Ltd. - 10% interest
Versair In-Flight Services Ltd. - 24% interest
Comisariato de Baja California, S.A. de C.V. (LLC) - 50% interest
St. Lucia Catering Services Ltd. - 49% interest
Paradise Springs Ltd. - 49% interest
Caterair Barcelona, S.A. - 20% interest
Aeromar, Ltd. - 49% interest
Caterair/GCC Inflight Services Ltd. - 50% interest
Franquicias Alcomesa S.A. de C.V. - 50% interest
194
Marriott Export Services, C.A. - 80% interest (inactive)
Marriott International Trade Services, C.A. - 80% interest
(inactive)
Caterair Lebanon ▇▇▇ - 20% interest
Delta Dailyfood Texas, Inc. - 33% interest
CateringPor - 49% interest
Class B Assets of OFSI are listed on Schedule VIII.
Intercompany Notes are listed on Schedule VII - Existing
Indebtedness.
The Onex Ohio entities listed on Schedule VII have made employee
loans totalling $5,215,063 as of July 31, 1997.
Employee advances from Sky Chefs, Inc. totalling approximately
$287,000 as of July 31, 1997.
Employee advances from CII totalling $29,000 as of July 31, 1997.
-2-
195
EXHIBIT A
NOTICE OF BORROWING
[Date]
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent for the Banks party
to the Credit Agreement
referred to below
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Gentlemen:
The undersigned, SC International Services, Inc. (the
"Borrower"), refers to the Credit Agreement, dated as of September 29, 1995 and
amended and restated as of August 28, 1997 (as amended from time to time, the
"Credit Agreement," the terms defined therein being used herein as therein
defined), among Onex Food Services, Inc., the Borrower, Caterair Holdings
Corporation, Caterair International Corporation, various Banks from time to time
party thereto, Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as
Co-Arrangers, Bankers Trust Company, as Syndication Agent, you, as
Administrative Agent for such Banks, and The Bank of New York, as Co-Agent, and
hereby gives you notice, irrevocably, pursuant to Section 1.03(a) of the Credit
Agreement, that the undersigned hereby requests a Borrowing of Revolving Loans
under the Credit Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed Borrowing") as required by
Section 1.03(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_________, 19__.(1)
(ii) The aggregate principal amount of the Proposed
Borrowing is $___________.
(iii) The Revolving Loans to be made pursuant to the
Proposed Borrowing shall be initially maintained as [Base Rate Loans]
[Eurodollar Loans].
--------------
(1) Shall be a Business Day at least three Business Days in the case of
Eurodollar Loans and at least one Business Day in the case of Base Rate Loans,
in each case after the date hereof.
196
EXHIBIT A
Page 2
(iv) The initial Interest Period for the Proposed Borrowing is
___ month(s).(2)
The Borrower hereby certifies that the following statements
are true and correct on the date hereof, and will be true and correct on the
date of the Proposed Borrowing:
(A) the representations and warranties contained in the Credit
Documents are and will be true and correct in all material respects,
both before and after giving effect to the Proposed Borrowing and to
the application of the proceeds thereof, as though made on such date
(it being understood and agreed that any representation or warranty
which by its terms is made as of a specified date shall be required to
be true and correct in all material respects only as of such specified
date); and
(B) no Default or Event of Default has occurred and is
continuing, or would result from such Proposed Borrowing or from the
application of the proceeds thereof; and
(C) the aggregate outstanding principal amount (or the Dollar
Equivalent thereof) of all Third-Party Foreign Subsidiary Indebtedness
as reported in the officer's certificate of the Borrower delivered with
the most recent set of financial statements furnished to the
Administrative Agent under Section 8.01(a) of the Credit Agreement is
$_________.
Very truly yours,
SC INTERNATIONAL SERVICES, INC.
By________________________________
Name:
Title:
------------
(2) To be included for a Proposed Borrowing of Eurodollar Loans.
197
EXHIBIT B-1
REVOLVING NOTE
$_______________ New York, New York
______ __, ____
FOR VALUE RECEIVED, SC INTERNATIONAL SERVICES, INC., a
Delaware corporation (the "Borrower"), hereby promises to pay to _______________
or its registered assigns (the "Bank"), in lawful money of the United States of
America in immediately available funds, at the office of ▇▇▇▇▇▇ Guaranty Trust
Company of New York (the "Administrative Agent") located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ on the Final Maturity Date (as defined in the
Agreement referred to below) the principal sum of _______________ DOLLARS
($______________) or, if less, the then unpaid principal amount of all Revolving
Loans (as defined in the Agreement) made by the Bank pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid
principal amount hereof in like money at said office from the date hereof until
paid at the rates and at the times provided in Section 1.08 of the Agreement.
This Note is one of the Revolving Notes referred to in the
Credit Agreement, dated as of September 29, 1995 and amended and restated as of
August 28, 1997, among Onex Food Services, Inc., the Borrower, Caterair Holdings
Corporation, Caterair International Corporation, the lenders from time to time
party thereto (including the Bank), Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇
Securities Inc., as Co-Arrangers, Bankers Trust Company, as Syndication Agent,
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative Agent, and The Bank
of New York, as Co-Agent (as from time to time in effect, the "Agreement"), and
is entitled to the benefits thereof and of the other Credit Documents (as
defined in the Agreement). This Note is secured by the Security Documents (as
defined in the Agreement) and is entitled to the benefits of the Guaranties (as
defined in the Agreement). As provided in the Agreement, this Note is subject to
voluntary prepayment and mandatory repayment prior to the Final Maturity Date,
in whole or in part.
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may be declared to be due and payable in the manner and with the effect
provided in the Agreement.
198
EXHIBIT B-1
Page 2
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SC INTERNATIONAL SERVICES, INC.
By________________________________
Title:
199
EXHIBIT B-2
SWINGLINE NOTE
$________________ New York, New York
_________ __, 1997
FOR VALUE RECEIVED, SC INTERNATIONAL SERVICES, INC., a
Delaware corporation (the "Borrower"), hereby promises to pay to ▇▇▇▇▇▇ GUARANTY
TRUST COMPANY OF NEW YORK or its registered assigns (the "Bank"), in lawful
money of the United States of America in immediately available funds, at the
office of ▇▇▇▇▇▇ Guaranty Trust Company of New York (the "Administrative Agent")
located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ on the Swingline Expiry
Date (as defined in the Agreement referred to below) the principal sum of
_______________ DOLLARS ($_____________) or, if less, the then unpaid principal
amount of all Swingline Loans (as defined in the Agreement) made by the Bank
pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid
principal amount hereof in like money at said office from the date hereof until
paid at the rates and at the times provided in Section 1.08 of the Agreement.
This Note is the Swingline Note referred to in the Credit
Agreement, dated as of September 29, 1995 and amended and restated as of August
28, 1997, among Onex Food Services, Inc., the Borrower, Caterair Holdings
Corporation, Caterair International Corporation, the lenders from time to time
party thereto (including the Bank), Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇
Securities Inc., as Co-Arrangers, Bankers Trust Company, as Syndication Agent,
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative Agent, and The Bank
of New York, as Co-Agent (as from time to time in effect, the "Agreement"), and
is entitled to the benefits thereof and of the other Credit Documents (as
defined in the Agreement). This Note is secured by the Security Documents (as
defined in the Agreement) and is entitled to the benefits of the Guaranties (as
defined in the Agreement). As provided in the Agreement, this Note is subject to
voluntary prepayment and mandatory repayment prior to the Swingline Expiry Date,
in whole or in part.
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may be declared to be due and payable in the manner and with the effect
provided in the Agreement.
200
EXHIBIT B-2
Page 2
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SC INTERNATIONAL SERVICES, INC.
By________________________________
Title:
201
EXHIBIT C
LETTER OF CREDIT REQUEST
No. _____(1) Dated _____(2)
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative Agent under the
Credit Agreement (as amended, modified or supplemented from time to
time, the "Credit Agreement"), dated as of September 29, 1995 and
amended and restated as of August 28, 1997, among Onex Food Services,
Inc., SC International Services, Inc., Caterair Holdings Corporation,
Caterair International Corporation, the lenders from time to time party
thereto, Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as
Co-Arrangers, Bankers Trust Company, as Syndication Agent, ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Administrative Agent, and The
Bank of New York, as Co-Agent
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ______________________
[Name and Address of applicable Issuing Bank]
Attention: ______________________
Dear Sirs:
We hereby request that ________________________, in its
individual capacity, issue a [Standby] [Trade] Letter of Credit for the account
of the undersigned on ____________(3) (the "Date of Issuance") in the aggregate
stated amount of ________________(4).
-----------
(1) Letter of Credit Request Number.
(2) Date of Letter of Credit Request.
(3) Date of Issuance which shall be at least five Business Days after the
date of this Letter of Credit Request (or such shorter period as is
acceptable to the respective Issuing Bank).
(4) Aggregate initial stated amount of Letter of Credit.
202
EXHIBIT C
Page 2
For purposes of this Letter of Credit Request, unless
otherwise defined herein, all capitalized terms used herein which are defined in
the Credit Agreement shall have the respective meaning provided therein.
The beneficiary of the requested Letter of Credit will be
____________(5), and such Letter of Credit will be in support of ____________(6)
and will have a stated expiration date of ______________(7).
We hereby certify that:
(1) the representations and warranties contained in the Credit
Documents will be true and correct in all material respects on the Date
of Issuance, both before and after giving effect to the issuance of the
Letter of Credit requested hereby (it being understood and agreed that
any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material
respects only as of such specified date); and
(2) no Default or Event of Default has occurred and is
continuing nor, after giving effect to the issuance of the Letter of
Credit requested hereby, would such a Default or an Event of Default
occur; and
(3) the aggregate outstanding principal amount (or the Dollar
Equivalent thereof) of all Third-Party Foreign Subsidiary Indebtedness
as reported in the officer's
------------
(5) Insert name and address of beneficiary.
(6) Insert description of L/C Supportable Indebtedness which generally
describes obligation (i.e., workers' compensation, insurance,
Third-Party Foreign Subsidiary Indebtedness, etc.) to which it relates
in the case of Standby Letters of Credit and a description of the
commercial transaction (i.e., purchase of goods, etc.) which is being
supported in the case of Trade Letters of Credit.
(7) Insert last date upon which drafts may be presented which may not be
later than (i) in the case of Standby Letters of Credit, 12 months
after the Date of Issuance or, if earlier, the third Business Day
preceding the Final Maturity Date or (ii) in the case of Trade Letters
of Credit, 180 days after the Date of Issuance or, if earlier, the
third Business Day (or in the case of Trade Letters of Credit issued in
negotiable form to overseas beneficiaries, 30 days) preceding the Final
Maturity Date.
203
EXHIBIT C
Page 3
certificate of the Borrower delivered with the most recent set of
financial statements furnished to the Administrative Agent under
Section 8.01(a) of the Credit Agreement is $__________.
Copies of all documentation with respect to the supported
transaction are attached hereto.
SC INTERNATIONAL SERVICES, INC.
By__________________________________
Title:
204
EXHIBIT D
SECTION 4.04(b)(ii) CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as of
September 29, 1995 and amended and restated as of August 28, 1997, among Onex
Food Services, Inc., SC International Services, Inc., Caterair Holdings
Corporation, Caterair International Corporation, various Banks, Bankers Trust
Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers, Bankers Trust Company,
as Syndication Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent, and The Bank of New York, as Co-Agent (the "Credit
Agreement"). Pursuant to the provisions of Section 4.04(b)(ii) of the Credit
Agreement, the undersigned hereby certifies that it is not a "bank" as such term
is used in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended.
[NAME OF BANK]
By________________________________
Title:
205
EXHIBIT F
[NAME OF CREDIT PARTY]
Officers' Certificate
I, the undersigned, an authorized officer of [NAME OF CREDIT
PARTY], a corporation organized and existing under the laws of _________________
(the "Company"), do hereby certify that:
1. This Certificate is furnished pursuant to Sections 5.03 and
5.05 of the Credit Agreement, dated as of September 29, 1995 and amended and
restated as of August 28, 1997, among Onex Food Services, Inc., SC International
Services, Inc., Caterair Holdings Corporation, Caterair International
Corporation, the lenders from time to time party thereto, Bankers Trust Company
and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers, Bankers Trust Company, as
Syndication Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative
Agent, and The Bank of New York, as Co-Agent (such Credit Agreement, as in
effect on the date of this Certificate, being herein called the "Credit
Agreement"). Unless otherwise defined herein, capitalized terms used in this
Certificate shall have the meanings set forth in the Credit Agreement.
2. The following named individuals are elected officers of the
Company, each holds the offices of the Company set forth opposite each one's
name and each has held such office since __________, 19__.(1) The signature
adjacent to the name and title of each such officer is such officer's correct
signature.
Name(2) Title Signature
------------------------- ----------------- ------------------------
------------------------- ----------------- ------------------------
------------------------- ----------------- ------------------------
------------
(1) Insert a date prior to the time of any corporate action relating to the
Credit Agreement or any other Credit Document.
(2) Include name, office and signature of each officer who will sign any Credit
Document, including the officer who will sign the certification at the end of
this Certificate.
206
EXHIBIT F
Page 2
3. Attached hereto as Exhibit A is a certified copy of the
[Certificate of Incorporation or equivalent organizational document] of the
Company as filed in the Office of ___________________ on ___________, 19__,
together with all amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of
the [By-Laws or equivalent organizational document] of the Company which were
duly adopted, are in full force and effect on the date hereof, and have been in
effect since _____________, 19__.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions which were duly adopted on __________, 1997 by unanimous written
consent of the Board of Directors of the Company, and said resolutions have not
been rescinded, amended or modified. Except as attached hereto as Exhibit C, no
resolutions have been adopted by the Board of Directors of the Company which
deal with the execution, delivery or performance of any of the Documents to
which the Company is party.
[6. Attached hereto as Exhibits D and E are true and correct
copies of all 9-1/4% Senior Subordinated Note Documents and all Consent
Solicitation Documents.(3)
[7.][6.] On the date hereof, all of the conditions set forth
in Sections 5.02, 5.06, 5.07, 5.12, 5.13, 5.18 and 6.02 of the Credit Agreement
have been satisfied.](4)
[6.][8.][7.] On the date hereof, the representations and warranties made by
the Company in the Credit Documents to which the Company is a party are true and
correct in all material respects, both before and after giving effect to each
Credit Event to occur on the date hereof and the application of the proceeds
thereof (it being understood and agreed that any representation or warranty
which by its terms is made as of a specified date shall be required to be true
and correct in all material respects only as of such specified date).
[7.][9.][8.] On the date hereof, no Default or Event of Default has occurred
and is continuing or would result from the Credit Events (if any) to occur on
the date hereof or from the application of the proceeds thereof.
------------
(3) Insert in Certificate for SCIS only.
(4) Insert in Certificate for SCIS and Caterair only.
207
EXHIBIT F
Page 3
[8.][10.][9.] There is no proceeding for the dissolution or liquidation of
the Company or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day
of __________, 1997.
______________________________
Name:
Title:
208
EXHIBIT F
Page 4
[NAME OF CREDIT PARTY]
I, the undersigned, [Secretary/Assistant Secretary/other Authorized Officer] of
the Company, do hereby certify that:
1. [Name of Person making above certifications] is the duly
elected and qualified [President/Vice President] of the Company and the
signature above is his genuine signature.
2. The certifications made by [name of Person making above
certifications] in Items 2, 3, 4, 5 and [8] [10] [9] above are true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day
of _________, 1997.
____________________________
Name:
Title:
209
EXHIBIT G-1
AMENDED AND RESTATED GENERAL PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT (as amended, modified or
supplemented from time to time, this "Agreement"), dated as of September 29,
1995 and amended and restated as of August 28, 1997, made by each of the
undersigned pledgors (each a "Pledgor" and, together with any other entity that
becomes a party hereto pursuant to Section 23 hereof, the "Pledgors"), in favor
of ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Collateral Agent (together with
any successor pledgee, the "Pledgee"), for the benefit of the Secured Creditors
(as defined below). Except as otherwise defined herein, capitalized terms used
herein and defined in the SCIS Credit Agreement (as defined below) or in the
Caterair Credit Agreement (as defined below), as the case may be, shall be used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, Onex Food Services, Inc. ("OFSI"), SC International Services,
Inc. ("SCIS"), Caterair Holdings Corporation ("Caterair Holdings"), Caterair
International Corporation ("Caterair"), various lenders from time to time party
thereto (the "SCIS Banks"), Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities
Inc., as Co-Arrangers (the "SCIS Co-Arrangers"), Bankers Trust Company, as
Syndication Agent, The Bank of New York, as Co-Agent, and ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Administrative Agent (together with any successor
administrative agent, the "SCIS Administrative Agent"), have entered into a
Credit Agreement, dated as of September 29, 1995 and amended and restated as of
August 28, 1997, providing for the making of loans to SCIS and the issuance of,
and participation in, letters of credit for the account of SCIS as contemplated
therein (as used herein, the term "SCIS Credit Agreement" means the Credit
Agreement described above in this paragraph, as the same may be amended,
modified, extended, renewed, replaced, restated or supplemented from time to
time, and including any agreement extending the maturity of, or restructuring
all or any portion of the Indebtedness under such agreement or any successor
agreements) (the SCIS Banks, the SCIS Co-Arrangers and the SCIS Administrative
Agent are herein called the "SCIS Bank Creditors");
WHEREAS, SCIS, Caterair, various lenders from time to time party
thereto (the "Caterair Banks", and together with the SCIS Banks, the "Banks"),
Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers (the
"Caterair Co-Arrangers", and together with the SCIS Co-Arrangers, the
"Co-Arrangers"), Bankers Trust Company, as Syndication Agent, and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Administra-
210
EXHIBIT G-1
Page 2
tive Agent (together with any successor administrative agent, the "Caterair
Administrative Agent", and together with the SCIS Administrative Agent, the
"Administrative Agents"), have entered into a Term Loan Agreement, dated as of
August 28, 1997, providing for the making of loans to SCIS and Caterair as
contemplated therein (as used herein, the term "Caterair Credit Agreement" means
the Term Loan Agreement described above in this paragraph, as the same may be
amended, modified, extended, renewed, replaced, restated or supplemented from
time to time, and including any agreement extending the maturity of, or
restructuring all or any portion of the Indebtedness under such agreement or any
successor agreements, and the Caterair Credit Agreement, together with the SCIS
Credit Agreement, are herein called the "Credit Agreements") (the Caterair
Banks, the Caterair Co-Arrangers and the Caterair Administrative Agent are
herein called the "Caterair Bank Creditors", and together with the SCIS Bank
Creditors, are herein called the "Bank Creditors");
WHEREAS, SCIS, Caterair and/or one or more of their respective
Subsidiaries may at any time and from time to time enter into one or more
Interest Rate Protection Agreements or Other Hedging Agreements with one or more
Banks or any affiliate thereof (each such Bank or affiliate, even if the
respective Bank subsequently ceases to be a Bank under the applicable Credit
Agreement for any reason, together with such Bank's or affiliate's successors
and assigns, if any, collectively, the "Other Creditors," and together with the
Bank Creditors and the Pledgee, the "Secured Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor (including Caterair) has jointly and severally guaranteed to the
Secured Creditors the payment when due of all Guaranteed Obligations as
described therein;
WHEREAS, the Pledgors entered into a General Pledge Agreement, dated as
of September 29, 1995 (as amended, modified or supplemented to the date hereof,
the "Original General Pledge Agreement");
WHEREAS, it is a condition precedent to the making of loans and the
issuance of letters of credit under the Credit Agreements that each Pledgor
shall have executed and delivered a counterpart to this Agreement; and
WHEREAS, each Pledgor will obtain benefits from the incurrence of loans
and the issuance of letters of credit under the Credit Agreements and the
entering into of Interest Rate Protection Agreements or Other Hedging Agreements
with the Other Creditors and, accordingly, each Pledgor desires to enter into
this Agreement in order to satisfy the conditions described in the preceding
paragraph and to amend and restate the Original General Pledge Agreement in its
entirety in the form of this Agreement;
211
EXHIBIT G-1
Page 3
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor for
the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, the principal of and interest
on the notes issued by, and loans made to, SCIS under the SCIS Credit
Agreement, all reimbursement obligations and unpaid drawings in respect of
letters of credit issued under the SCIS Credit Agreement, and all
indemnities, fees and interest thereon or owed there-under) of such Pledgor
to the SCIS Bank Creditors, whether now existing or hereafter incurred
under, arising out of, or in connection with the SCIS Credit Agreement and
the other SCIS Credit Documents (such term to mean the "Credit Documents"
as defined in the SCIS Credit Agreement) (including, without limitation, in
the case of each Subsidiary Guarantor (including Caterair), all of its
obligations, liabilities and indebtedness under the Subsidiaries Guaranty)
to which such Pledgor is a party and the due performance and compliance by
such Pledgor with all of the terms, conditions and agreements contained in
the SCIS Credit Agreement and such other SCIS Credit Documents, provided
that in the case of Caterair Holdings, the security interests created under
this Agreement in the Collateral (as defined below) owned by Caterair
Holdings shall also secure all such obligations, liabilities and
indebtedness of SCIS under the SCIS Credit Documents to which it is a party
(all such obligations, liabilities and indebtedness under this clause (i),
except to the extent consisting of obligations, liabilities or indebtedness
with respect to Interest Rate Protection Agreements or Other Hedging
Agreements, being herein collectively called the "SCIS Credit Document
Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, the principal of and interest
on the notes issued by, and loans made to, SCIS and Caterair under the
Caterair Credit Agreement, and all indemnities, fees and interest thereon
or owed thereunder) of such Pledgor to the Caterair Bank Creditors, whether
now existing or hereafter incurred under, arising out of, or in connection
with the Caterair Credit Agreement and the other Caterair
212
EXHIBIT G-1
Page 4
Credit Documents (such term to mean the "Credit Documents" as defined in
the Caterair Credit Agreement, and the Caterair Credit Documents, together
with the SCIS Credit Documents, are referred to herein as the "Credit
Documents") (including, without limitation, in the case of SCIS, all of its
obligations, liabilities and indebtedness under the SCIS Guaranty and, in
the case of each Subsidiary Guarantor (including Caterair), all of its
obligations, liabilities and indebtedness under the Subsidiaries Guaranty)
to which such Pledgor is a party and the due performance and compliance by
such Pledgor with all of the terms, conditions and agreements contained in
the Caterair Credit Agreement and such other Caterair Credit Documents,
provided that in the case of Caterair Holdings, the security interests
created under this Agreement in the Collateral owned by Caterair Holdings
shall also secure all such obligations, liabilities and indebtedness of
SCIS and Caterair under the Caterair Credit Documents to which they are a
party (all such obligations, liabilities and indebtedness under this clause
(ii), except to the extent consisting of obligations, liabilities or
indebtedness with respect to Interest Rate Protection Agreements or Other
Hedging Agreements, being herein collectively called the "Caterair Credit
Document Obligations");
(iii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness owing by such Pledgor to the Other Creditors under,
arising out of or with respect to, any Interest Rate Protection Agreement
or Other Hedging Agreement (including, without limitation, in the case of
each Pledgor, all of its obligations, liabilities and indebtedness under
the Guaranties to which it is a party in respect of such Interest Rate
Protection Agreements or Other Hedging Agreements, whether such Interest
Rate Protection Agreement or Other Hedging Agreement is now in existence or
hereafter arising, and the due performance and compliance by such Pledgor
with all of the terms, conditions and agreements contained therein,
provided that in the case of Caterair Holdings, the security interests
created under this Agreement in the Collateral owned by Caterair Holdings
shall also secure all such obligations, liabilities and indebtedness of
SCIS and Caterair under, or in respect of, such Interest Rate Protection
Agreement or Other Hedging Agreements (all such obligations, liabilities
and indebtedness described in this clause (iii) being herein collectively
called the "Other Obligations");
(iv) any and all sums advanced by the Pledgee in order to preserve the
Collateral or preserve its security interest in the Collateral;
(v) in the event of any proceeding for the collection or enforcement of
any indebtedness, obligations or liabilities of such Pledgor referred to in
clauses (i),
213
EXHIBIT G-1
Page 5
(ii) and (iii) above, upon the occurrence and during the continuance of an
Event of Default (such term, as used in this Agreement, shall mean any
Event of Default under, and as defined in, either Credit Agreement, or any
payment default under any Interest Rate Protection Agreement or Other
Hedging Agreement, and shall, in any event, include without limitation, any
payment default (after the expiration of any applicable grace period) on
any of the Obligations (as hereinafter defined)) shall have occurred and be
continuing, the reasonable expenses of retaking, holding, preparing for
sale or lease, selling or otherwise disposing of or realizing on the
Collateral, or of any exercise by the Pledgee of its rights hereunder,
together with reasonable attorneys' fees and court costs; and
(vi) all amounts paid by any Secured Creditor as to which such Secured
Creditor has the right to reimbursement under Section 11 of this Agreement.
All such obligations, liabilities, indebtedness, sums and expenses set forth in
clauses (i) through (vi) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITION OF STOCK, NOTES, SECURITIES, ETC. As used herein, (i) the
term "Stock" shall mean all of the issued and outstanding shares of capital
stock (including, but not limited to, warrants, options or other rights to
acquire shares thereof) at any time owned by any Pledgor of any corporation,
provided that the term "Stock" shall not include, except as otherwise provided
below, more than 65% of the total combined voting power of all classes of
capital stock of any Foreign Subsidiary owned by such Pledgor (other than in
respect of the capital stock of IFSC, 100% of whose shares of capital stock
shall be pledged hereunder); (ii) the term "Notes" shall mean all promissory
notes from time to time issued to, or held by, any Pledgor (including, but not
limited to, the SCIS/Caterair Note and all Intercompany Notes held by any
Pledgor, but excluding the Caterair Holdings Certificate of Deposit and all
promissory notes issued by employees or directors of any Pledgor); and (iii) the
term "Securities" shall mean all of the Stock and Notes. Each Pledgor represents
and warrants that, on the date hereof, (a) the Stock held by such Pledgor
consists of the number and type of shares of the stock of the corporations as
described in Annex A hereto, (b) such Stock constitutes that percentage of the
issued and outstanding shares of capital stock of the issuing corporation as is
set forth in Annex A hereto, (c) the Notes held by such Pledgor consist of the
promissory notes described in Annex B hereto, (d) such Pledgor is the holder of
record and sole beneficial owner of the Stock and the Notes and there exist no
options or preemption rights in respect of any of the Stock and (e) such Pledgor
owns no other Securities. Following a change in the relevant
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provisions of the Code or the regulations, published rules, published rulings,
notices or other official pronouncements issued or promulgated thereunder, if
the Pledgee requests a pledge of additional stock of any Foreign Subsidiary of a
Pledgor, all of the stock of which Foreign Subsidiary has not already been
pledged pursuant to this Agreement, then within 90 days after such request the
relevant Pledgor shall either (i) pledge such additional stock of such Foreign
Subsidiary or (ii) deliver to the Pledgee an opinion of the counsel of the
respective Pledgor, which counsel shall be reasonably acceptable to the Pledgee,
that the requested pledge of such additional stock is more likely than not to
cause the undistributed earnings of such Foreign Subsidiary to be treated as a
deemed dividend to such Foreign Subsidiary's United States parent for Federal
income tax purposes.
3. PLEDGE OF SECURITIES, ETC.
3.1. Pledge. To secure the Obligations of such Pledgor (and, in the
case of Caterair Holdings, to secure the Obligations of SCIS and Caterair), each
Pledgor hereby (i) grants to the Pledgee a security interest in all of the
Collateral owned by such Pledgor, (ii) pledges and deposits as security with the
Pledgee, the Securities owned by such Pledgor on the date hereof, and delivers
to the Pledgee certificates or instruments, if any, therefor, (x) duly endorsed
in blank by such Pledgor in the case of Notes, and (y) accompanied by undated
stock powers duly executed in blank by such Pledgor (and accompanied by any
transfer tax stamps required in connection with the pledge of such Securities)
in the case of Stock, or such other instruments of transfer as are reasonably
acceptable to the Pledgee and (iii) assigns, transfers, hypothecates mortgages,
charges and sets over to the Pledgee all of such Pledgor's right, title and
interest in and to such Securities (and in and to the certificates or
instruments evidencing such Securities), to be held by the Pledgee upon the
terms and conditions set forth in this Agreement.
3.2. Subsequently Acquired Securities. If any Pledgor shall acquire (by
purchase, stock dividend or otherwise) any additional Securities at any time or
from time to time after the date hereof, such Pledgor will promptly thereafter
pledge and deposit such Securities (or certificates or instruments representing
such Securities) as security with the Pledgee and deliver to the Pledgee
certificates therefor or instruments thereof, duly endorsed in blank in the case
of such Notes, accompanied by undated stock powers duly executed in blank by
such Pledgor (and accompanied by any transfer tax stamps required in connection
with the pledge of such Securities) in the case of such Stock, or such other
instruments of transfer as are reasonably acceptable to the Pledgee, and
accompanied by a certificate executed by a principal executive officer of such
Pledgor in the form attached as Annex C hereto describing such Securities and
certifying that the same has been duly pledged with the Pledgee hereunder.
Except as otherwise provided in the last sentence of Section 2 hereof, no
Pledgor shall be required at any time to pledge hereunder any Stock
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which is more than 65% of the total combined voting power of all classes of
capital stock of any Foreign Subsidiary owned by such Pledgor.
3.3. Uncertificated Securities. Notwithstanding anything to the
contrary contained in Sections 3.1 and 3.2 hereof, if any Securities (whether
now owned or hereafter acquired) are uncertificated securities, the relevant
Pledgor shall promptly notify the Pledgee thereof, and shall promptly take all
actions required to perfect the security interest of the Pledgee under
applicable law (including, in any event, under Sections 8-313 and 8- 321 of the
New York Uniform Commercial Code, if applicable). Each Pledgor further agrees to
take such actions as the Pledgee deems reasonably necessary or desirable to
effect the foregoing and to permit the Pledgee to exercise any of its rights and
remedies hereunder, and agrees to provide an opinion of counsel reasonably
satisfactory to the Pledgee with respect to any such pledge of uncertificated
Securities promptly upon the reasonable request of the Pledgee.
3.4. Definitions of Pledged Stock; Pledged Notes; Pledged Securities
and Collateral. All Stock at any time pledged or required to be pledged
hereunder is hereinafter called the "Pledged Stock"; all Notes at any time
pledged or required to be pledged hereunder are hereinafter called the "Pledged
Notes"; all Pledged Stock and Pledged Notes together are called the "Pledged
Securities"; and the Pledged Securities, together with all proceeds thereof,
including any securities and moneys received and at the time held by the Pledgee
hereunder, are herein called the "Collateral."
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall have
the right to appoint one or more sub-agents for the purpose of retaining
physical possession of the Pledged Securities, which may be held (in the
discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing an Event of Default and the Pledgee has
exercised any of its remedies under Section 7(d) hereof (or has given notice to
such Pledgor that it intends to exercise such remedies, although no such notice
shall be required and the Pledgee shall be entitled to exercise such remedies
immediately upon the occurrence of a bankruptcy or insolvency Event of Default
of the type described in either Credit Agreement in respect of such Pledgor),
each Pledgor shall be entitled to exercise any and all voting and other
consensual rights and powers pertaining to the Pledged Securities owned by it,
and to give consents, waivers or ratifications in respect thereof, provided,
that no vote shall be cast or any consent, waiver or ratification given or any
action taken which would violate
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or be inconsistent with any of the terms of this Agreement, the Credit
Agreements, any other Credit Document or any Interest Rate Protection Agreement
or Other Hedging Agreement (collectively, the "Secured Debt Agreements"), or
which would have the effect of impairing the value of the Collateral or any part
thereof or the position or interests of the Pledgee in the Collateral. All such
rights of each Pledgor to vote and to give consents, waivers and ratifications
shall cease in case an Event of Default has occurred and is continuing, and the
Pledgee has exercised any of its remedies under Section 7(d) hereof (or has
given notice to such Pledgor that it intends to exercise such remedies, although
no such notice shall be required and the Pledgee shall be entitled to exercise
such remedies immediately upon the occurrence of a bankruptcy or insolvency
Event of Default of the type described in either Credit Agreement in respect of
such Pledgor).
6. DIVIDENDS AND OTHER DISTRIBUTIONS. (a) Unless and until there shall
have occurred and be continuing an Event of Default and the Pledgee has
exercised any of its remedies under Section 7(a) hereof (or has given notice to
such Pledgor that it intends to exercise such remedies, although no such notice
shall be required and the Pledgee shall be entitled to exercise such remedies
immediately upon the occurrence of a bankruptcy or insolvency Event of Default
of the type described in either Credit Agreement in respect of such Pledgor),
(i) all dividends and other distributions payable in respect of the Pledged
Stock shall be paid to the respective Pledgor in accordance with (and to the
extent permitted by) the Credit Agreements, and (ii) all payments in respect of
the Pledged Notes shall be paid to the respective Pledgor.
(b) Nothing contained in this Section 6 shall limit or restrict in any
way the Pledgee's right to receive proceeds of the Collateral in any form in
accordance with Section 3 of this Agreement. All dividends, distributions or
other payments in respect of the Collateral which are received by any Pledgor
contrary to the provisions of this Section 6 or Section 7 hereof shall be held
in trust for the benefit of the Pledgee, shall be segregated from other property
or funds of such Pledgor and shall be forthwith delivered to the Pledgee as
Collateral in the same form as so received (with any necessary endorsement).
7. REMEDIES UPON EVENTS OF DEFAULT. If there shall have occurred and be
continuing an Event of Default, then and in every such case, the Pledgee shall
be entitled to exercise all of the rights, powers and remedies (whether vested
in it by this Agreement, any other Secured Debt Agreement or by law) for the
protection and enforcement of its rights in respect of the Collateral, and the
Pledgee shall be entitled to exercise all the rights and remedies of a secured
party under the Uniform Commercial Code and also shall be entitled, without
limitation, to exercise the following rights, which each Pledgor hereby agrees
to be commercially reasonable:
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(a) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the respective Pledgor;
(b) to transfer all or any part of the Collateral into the Pledgee's
name or the name of its nominee or nominees;
(c) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
(d) to vote all or any part of the Pledged Stock (whether or not
transferred into the name of the Pledgee) and give all consents, waivers
and ratifications in respect of the Collateral and otherwise act with
respect thereto as though it were the outright owner thereof (each Pledgor
hereby irrevocably constituting and appointing the Pledgee the proxy and
attorney-in-fact of such Pledgor, with full power of substitution to do
so); and
(e) at any time and from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine; provided that at least 10 days' written
notice of the time and place of any such sale shall be given to such
Pledgor. The Pledgee shall not be obligated to make any such sale of
Collateral regardless of whether any such notice of sale has theretofore
been given. Each Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to the
Collateral, whether before or after sale hereunder, and all rights, if any,
of marshalling the Collateral and any other security for the Obligations or
otherwise. At any such sale, unless prohibited by applicable law, the
Pledgee on behalf of the Secured Creditors may bid for and purchase all or
any part of the Collateral so sold free from any such right or equity of
redemption. Neither the Pledgee nor any other Secured Creditor shall be
liable for failure to collect or realize upon any or all of the Collateral
or for any delay in so doing nor shall any of them be under any obligation
to take any action whatsoever with regard thereto.
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8. REMEDIES, ETC. Each and every right, power and remedy of the Pledgee
provided for in this Agreement or any other Secured Debt Agreement, or now or
hereafter existing at law or in equity or by statute shall be cumulative and
concurrent and shall be in addition to every other such right, power or remedy.
The exercise or beginning of the exercise by the Pledgee or any other Secured
Creditor of any one or more of the rights, powers or remedies provided for in
this Agreement or any other Secured Debt Agreement or now or hereafter existing
at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by the Pledgee or any other Secured Creditor of
all such other rights, powers or remedies, and no failure or delay on the part
of the Pledgee or any other Secured Creditor to exercise any such right, power
or remedy shall operate as a waiver thereof. No notice to or demand on any
Pledgor in any case shall entitle it to any other or further notice or demand in
similar or other circumstances or constitute a waiver of any of the rights of
the Pledgee or any other Secured Creditor to any other or further action in any
circumstances without notice or demand. The Secured Creditors agree that this
Agreement may be enforced only by the action of the Pledgee, in each case acting
upon the instructions of the Required Secured Creditors (as defined in the
Security Agreement) and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Agreement or to realize upon
the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Pledgee for the benefit of the
Secured Creditors upon the terms of this Agreement.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the Pledgee
upon any sale or other disposition of the Collateral, together with all other
moneys received by the Pledgee hereunder, shall be applied to the payment of the
Obligations in the manner provided in Section 7.4 of the Security Agreement.
(b) It is understood and agreed that the Pledgors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. (a) Each Pledgor jointly and severally agrees to
indemnify and hold harmless the Pledgee in such capacity and each other Secured
Creditor
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and their respective successors, assigns, employees, agents and servants
(individually an "Indemnitee," and collectively the "Indemnitees") harmless from
any and all liabilities, obligations, damages, injuries, penalties, claims,
demands, actions, suits, judgments and any and all reasonable costs, expenses or
disbursements (including reasonable attorneys' fees and expenses) (for the
purposes of this Section 11 the foregoing are collectively called "expenses") of
whatever kind and nature imposed on, asserted against or incurred by any of the
Indemnitees in any way relating to or arising out of this Agreement or the
enforcement of any of the terms of, or the preservation of any rights hereunder,
or in any way relating to or arising out of the ownership, control, acceptance,
possession, condition, sale or other disposition, or use of the Collateral,
provided that no Indemnitee shall be indemnified pursuant to this Section 11(a)
for losses, damages or liabilities to the extent caused by the gross negligence
or wilful misconduct of such Indemnitee. Each Pledgor agrees that upon written
notice by any Indemnitee of the assertion of such a liability, obligation,
damage, injury, penalty, claim, demand, action, suit or judgment, the relevant
Pledgor shall to the extent requested to do so assume full responsibility for
the defense thereof.
(b) Without limiting the application of Section 11(a) hereof, each
Pledgor agrees jointly and severally to pay or reimburse the Pledgee for any and
all fees, costs and expenses, including reasonable attorneys' fees, of whatever
kind or nature incurred in connection with the creation, preservation or
protection of the Pledgee's Liens on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the Collateral, and all
other reasonable fees, costs and expenses in connection with protecting,
maintaining or preserving the Collateral and the Pledgee's interest therein,
whether through judicial proceedings or otherwise, or in defending or
prosecuting any actions, suits or proceedings arising out of or relating to the
Collateral.
(c) If and to the extent that the obligations of any Pledgor under this
Section 11 are unenforceable for any reason, such Pledgor hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor agrees that
it will join with the Pledgee in executing and, at such Pledgor's own expense,
file and refile under the Uniform Commercial Code of any jurisdiction or other
applicable law such financing statements, continuation statements and other
documents in such offices as the Pledgee may deem reasonably necessary and
wherever required by law in order to perfect and preserve the Pledgee's security
interest in the Collateral and hereby authorizes the Pledgee to file financing
statements and amendments thereto relative to all
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or any part of the Collateral without the signature of such Pledgor where
permitted by law, and agrees to do such further acts and things and to execute
and deliver to the Pledgee such additional conveyances, assignments, agreements
and instruments as the Pledgee may reasonably require or deem necessary to carry
into effect the purposes of this Agreement or to further assure and confirm unto
the Pledgee its rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor
and in the name of such Pledgor or otherwise, from time to time after the
occurrence and during the continuance of an Event of Default, in the Pledgee's
reasonable discretion to take any action and to execute any instrument which the
Pledgee may deem reasonably necessary or advisable to accomplish the purposes of
this Agreement.
13. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance with this
Agreement all items of the Collateral at any time received under this Agreement.
It is expressly understood and agreed by each Secured Creditor that by accepting
the benefits of this Agreement each such Secured Creditor acknowledges and
agrees that the obligations of the Pledgee as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth in this Agreement. The
Pledgee shall act hereunder on the terms and conditions set forth herein and in
Article X of the Security Agreement.
14. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise dispose
of, grant any option with respect to, or mortgage, pledge or otherwise encumber
any of the Collateral or any interest therein (except as may be permitted in
accordance with the terms of the Credit Agreement).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. Each
Pledgor represents, warrants and covenants that (i) it is the legal, record and
beneficial owner of, and has good and marketable title to, all Pledged
Securities pledged by it hereunder, subject to no Lien (except the Lien created
by this Agreement and Liens of the type described in Sections 9.01(i), (v) and
(xii) of the SCIS Credit Agreement); (ii) it has the corporate power and
authority to pledge all the Pledged Securities pledged by it pursuant to this
Agreement; (iii) this Agreement has been duly authorized, executed and delivered
by such Pledgor and constitutes a legal, valid and binding obligation of such
Pledgor enforceable in accordance with its terms, except to the extent that the
enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law); (iv) no consent of any
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other party (including, without limitation, any stockholder or creditor of such
Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required to be obtained by such
Pledgor for the execution, delivery or performance of this Agreement by such
Pledgor, the validity or enforceability of this Agreement and the perfection or
enforceability of the Pledgee's security interest in the Collateral (other than,
in respect of the proceeds of the Pledged Securities, the filing of Form UCC-1
financing statements or the appropriate equivalent (which filings have been
made)) or except for compliance with or as may be required by applicable
securities laws, the exercise by the Pledgee of any of its rights or remedies
provided herein; (v) the execution, delivery and performance of this Agreement
by such Pledgor, and compliance by it with the terms and provisions hereof, will
not violate any provision of any applicable law, statute, rule or regulation or
of any applicable order, judgment, writ, injunction or decree of any court or
governmental authority, domestic or foreign, applicable to such Pledgor, or of
the certificate of incorporation or by-laws (or equivalent organizational
documents) of such Pledgor or of any securities issued by such Pledgor or any of
its Subsidiaries, or of any mortgage, indenture, lease, deed of trust, loan
agreement, credit agreement or any other material contract, agreement or
instrument to which such Pledgor or any of its Subsidiaries is a party or which
purports to be binding upon such Pledgor or any of its Subsidiaries or upon any
of their respective assets and will not result in the creation or imposition of
(or the obligation to create or impose) any lien or encumbrance on any of the
Collateral of such Pledgor or any of its Subsidiaries except as contemplated by
this Agreement; (vi) all the shares of Stock have been duly and validly issued,
are fully paid and non-assessable and are subject to no options to purchase or
similar rights; (vii) each of the Pledged Notes issued by any Credit Party or by
any of its Subsidiaries constitutes, or when executed by the respective obligor
thereof will constitute, the legal, valid and binding obligation of such
obligor, enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law); and (viii) the pledge, assignment and delivery to the
Pledgee of the Securities (other than uncertificated securities) pursuant to
this Agreement creates a valid and perfected first priority Lien in the
Securities, and the proceeds thereof, subject to no other Lien or to any
agreement purporting to grant to any third party a Lien on the property or
assets of the Pledgor which would include the Securities. Each Pledgor covenants
and agrees that it will defend the Pledgee's right, title and security interest
in and to the Securities and the proceeds thereof against the claims and demands
of all persons whomsoever; and such Pledgor covenants and agrees that it will
have like title to and right to pledge any other property at any time hereafter
pledged to the Pledgee as Collateral hereunder and will like-
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wise defend the right thereto and security interest therein of the Pledgee and
the Secured Creditors.
16. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such Secured Debt Agreement or other agreement or instrument including, without
limitation, this Agreement; (iii) any furnishing of any additional security to
the Pledgee or its assignee or any acceptance thereof or any release of any
security by the Pledgee or its assignee; (iv) any limitation on any party's
liability or obligations under any such instrument or agreement or any
invalidity or unenforceability, in whole or in part, of any such instrument or
agreement or any term thereof; or (v) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to any Pledgor or any Subsidiary of any Pledgor, or any
action taken with respect to this Agreement by any trustee or receiver, or by
any court, in any such proceeding, whether or not such Pledgor shall have notice
or knowledge of any of the foregoing (it being understood that the enforcement
hereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law)).
17. REGISTRATION, ETC. (a) If there shall have occurred and be con-
tinuing an Event of Default then, and in every such case, upon receipt by any
Pledgor from the Pledgee of a written request or requests that such Pledgor
cause any registration, qualification or compliance under any Federal, state or
other applicable securities law or laws to be effected with respect to all or
any part of the Pledged Stock, such Pledgor as soon as practicable and at its
expense will cause such registration to be effected (and be kept effective) and
will cause such qualification and compliance to be declared effected (and be
kept effective) as may be so requested and as would permit or facilitate the
sale and distribution of such Pledged Stock, including, without limitation,
registration under the Securities Act of 1933, as then in effect (or any similar
statute then in effect), appropriate qualifications under applicable blue sky,
state or other applicable securities laws and appropriate compliance with any
other government requirements, provided, that the Pledgee shall furnish to such
Pledgor such information regarding the Pledgee as such Pledgor may reasonably
request in writing and as shall be required in connection with any such
registration, qualification or compliance. Such Pledgor will cause the Pledgee
to be kept advised
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in writing as to the progress of each such registration, qualification or
compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee, each other Secured Creditor and all others participating in the
distribution of such Pledged Stock against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related registration statement,
notification or the like) or by any omission (or alleged omission) to state
therein (or in any related registration statement, notification or the like) a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same may have been caused by an
untrue statement or omission based upon information furnished in writing to such
Pledgor by the Pledgee or such other Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Pledged Securities pursuant to Section 7
hereof, and such Pledged Securities or the part thereof to be sold shall not,
for any reason whatsoever, be effectively registered under the Securities Act of
1933, as then in effect, the Pledgee may, in its sole and absolute discretion,
sell such Pledged Securities or part thereof by private sale in such manner and
under such circumstances as the Pledgee may deem necessary or advisable in order
that such sale may legally be effected without such registration. Without
limiting the generality of the foregoing, in any such event the Pledgee, in its
sole and absolute discretion (i) may proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering
such Pledged Securities or part thereof shall have been filed under such
Securities Act, (ii) may approach and negotiate with a single possible purchaser
to effect such sale, and (iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Pledged
Securities or part thereof. In the event of any such sale, the Pledgee shall
incur no responsibility or liability for selling all or any part of the Pledged
Securities at a price which the Pledgee, in its sole and absolute discretion, in
good ▇▇▇▇▇ ▇▇▇▇▇ reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might be realized if the sale were
deferred until after registration as aforesaid.
18. TERMINATION; RELEASE. (a) On the Termination Date (as defined in
the Security Agreement), but only after giving effect to the repayments to be
made on such date, this Agreement and the security interest created hereby shall
terminate (provided that all indemnities set forth herein including, without
limitation, in Section 11 hereof shall survive any such termination), and the
Pledgee, at the request and expense of any Pledgor, will execute and deliver to
each Pledgor such proper instrument or instruments acknowledging the
satisfaction and termination of this Agreement, and will duly assign,
224
EXHIBIT G-1
Page 16
release, transfer and deliver to each Pledgor (without recourse and without any
representation or warranty) all of the Collateral as has not theretofore been
sold or otherwise applied or released pursuant to this Agreement, together with
any moneys at the time held by the Pledgee or any of its sub-agents hereunder.
(b) In the event that all or any part of the Collateral is sold,
conveyed or disposed of in connection with any form of asset disposition
permitted by the Credit Agreements or otherwise released, in whole or in part,
at the direction of the Required Secured Creditors and the proceeds of such
asset disposition are applied in accordance with, and to the extent required by,
the provisions of the Credit Agreements, the Pledgee, at the request and expense
of any Pledgor, will duly assign, release, transfer and deliver to the
appropriate Pledgor (without recourse and without any representation or
warranty) such of the Collateral (and releases therefor) as is then being (or
has been) so sold or released and has not theretofore been released pursuant to
this Agreement.
(c) At any time that a Pledgor desires that the Pledgee assign,
release, transfer and deliver Collateral as provided in Section 18(a) or (b)
hereof, it shall deliver to the Pledgee a certificate signed by a principal
executive officer of such Pledgor stating that the release of the respective
Collateral is in accordance with Section 18(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any Secured
Creditor as the result of any release of Collateral by it in accordance with
this Section 18.
19. NOTICES ETC. All such notices and communications hereunder shall be
sent or delivered by mail, telegraph, telex, telecopy, cable or overnight
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when delivered to the telegraph company, cable company or overnight
courier, as the case may be, or sent by telex or telecopier and when mailed
shall be effective three Business Days following deposit in the mail with proper
postage, except that notices and communications to the Pledgee shall not be
effective until received by the Pledgee. All notices and other communications
shall be in writing and addressed as follows:
225
EXHIBIT G-1
Page 17
(a) if to any Pledgor, to the address and communications information
set forth opposite its signature below;
(b) if to the Pledgee, at the following address of, and the
communications information for, the Pledgee:
▇▇▇▇▇▇ Guaranty Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Bank Creditor, either (x) to the respective
Administrative Agent, at the address of such Administrative Agent specified
in the respective Credit Agreement or (y) at such address and
communications information as such Bank Creditor shall have specified in
the respective Credit Agreement;
(d) if to any Other Creditor at such address and communications
information as such Other Creditor shall have specified in writing to the
Pledgors and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
20. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing and duly signed by each Pledgor directly affected thereby and
the Pledgee (with the written consent of the Required Secured Creditors);
provided, that any change, waiver, modification or variance affecting the rights
and benefits of a single Class (as defined below) of Secured Creditors (and not
all Secured Creditors in a like or similar manner) shall also require the
written consent of the Requisite Creditors (as defined below) of such affected
Class. For the purpose of this Agreement, the term "Class" shall mean each class
of Secured Creditors, i.e., whether (i) the SCIS Bank Creditors as holders of
the SCIS Credit Document Obligations, (ii) the Caterair Bank Creditors as
holders of the Caterair Credit Document Obligations or (iii) the Other Creditors
as the holders of the Other Obligations. For the purpose of this Agreement, the
term "Requisite Creditors" of any Class shall mean each of (i) with respect to
the SCIS Credit Document Obligations, the Required Banks under, and as defined
in, the SCIS Credit Agreement, (ii) with respect to the Caterair Credit Document
Obligations, the Required Banks under, and as defined in,
226
EXHIBIT G-1
Page 18
the Caterair Credit Agreement and (iii) with respect to the Other Obligations,
the holders of a majority of all obligations outstanding from time to time under
the Interest Rate Protection Agreements or Other Hedging Agreements.
21. MISCELLANEOUS. This Agreement shall be binding upon the successors
and assigns of each Pledgor (although no Pledgor may assign its rights and
obligations hereunder except in accordance with the provisions of the Secured
Debt Agreements) and shall inure to the benefit of and be enforceable by each of
the parties hereto and its successors and assigns. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS EXCEPT FOR THE CHOICE OF LAW
PROVISIONS OF THE NEW YORK UNIFORM COMMERCIAL CODE. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. The
headings in this Agreement are for purposes of reference only and shall not
limit or define the meaning hereof. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
constitute one instrument. In the event that any provision of this Agreement
shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain binding
on all parties hereto.
22. RECOURSE. This Agreement is made with full recourse to each Pledgor
(including, without, limitation, with full recourse to all assets of such
Pledgor) and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of such Pledgor contained herein, in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith, provided that, notwithstanding anything to the contrary contained
herein, any recourse under this Agreement against Caterair Holdings is limited
solely to the Collateral of Caterair Holdings pledged pursuant to this Agreement
and any proceeds or earnings thereon.
23. ADDITIONAL PLEDGORS. It is understood and agreed that any
Wholly-Owned Domestic Subsidiary of any Pledgor that is required to execute a
counterpart of this Agreement after the date hereof pursuant to either Credit
Agreement shall automatically become a Pledgor hereunder by executing a
counterpart hereof and delivering the same to the Pledgee.
* * *
227
EXHIBIT G-1
Page 19
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written
Addresses:
---------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ INTERNATIONAL SERVICES, INC.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR HOLDINGS CORPORATION,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR INTERNATIONAL CORPORATION,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SKY CHEFS, INC.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
228
EXHIBIT G-1
Page 20
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ CATERAIR INTERNATIONAL, INC. (II),
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SKY CHEFS INTERNATIONAL CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ SERVICES, INC.,
Wilmington, Delaware 19801-1622 as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ SERVICES HOLDING
Wilmington, Delaware 19801-1622 CORPORATION, as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ BETHESDA SERVICES, INC.,
Wilmington, Delaware 19801-1622 as a Pledgor
By: ___________________________________
Name:
Title:
229
EXHIBIT G-1
Page 21
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CATERAIR NEW ZEALAND LIMITED,
Wilmington, Delaware 19801-1622 as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR CONSULTING SERVICES
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ CORPORATION,
as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ CATERERS, INC.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ CORPORATION, as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, INC.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
230
EXHIBIT G-1
Page 22
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR AIRPORT PROPERTIES, INC.,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ SKY CHEFS ARGENTINE, INC.,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR INTERNATIONAL TRANSITION
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ CORPORATION,
as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO ACCEPTANCE CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CREDIT CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
231
EXHIBIT G-1
Page 23
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO EQUITY CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FINANCE CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ONEX OHIO FINANCE CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CAPITAL CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ONEX OHIO FISCAL CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
232
EXHIBIT G-1
Page 24
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FUNDS CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CREDIT CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FUNDS CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FISCAL CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO EQUITY CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
233
EXHIBIT G-1
Page 25
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CAPITAL CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Pledgor
By: ___________________________________
Name:
Title:
in each case, with a copy to:
SC International Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Pledgee,
Collateral Agent
By: ___________________________________
Name:
Title:
234
ANNEX A
to
AMENDED AND RESTATED
GENERAL
LIST OF STOCK PLEDGE AGREEMENT
====================================================================================================================================
# OF
PERCENTAGE SHARES
ISSUER/JURISDICTION OF AUTH. ISSUED PERCENTAGE TO BE STOCK CERT. TO BE
INCORPORATION OWNER CLASS OF STOCK SHARES SHARES HELD PLEDGED NUMBER PLEDGED
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs, Inc.
(Delaware) SCIS Common - 5,000,000 100 100% 100% 3 100
$100 Par
------------------------------------------------------------------------------------------------------------------------------------
Caterair International, Inc.
(II) (Delaware) SCIS Common - 3,000 100 100% 100% 2 100
$.01 Par
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs International
Corp.
(Delaware) Sky Chefs, Inc. Common - 1,000 1,000 100% 100% 2 1,000
$.01 Par
------------------------------------------------------------------------------------------------------------------------------------
Arlington Services, Inc.
(Delaware) Sky Chefs, Inc. Common - 1,000 100 100% 100% 2 100
$.01 Par
------------------------------------------------------------------------------------------------------------------------------------
Arlington Services
Holding Corporation Sky Chefs, Inc. Common - 3,000 1,000 100% 100% 1 1,000
(Delaware) ("ASH") $.01 Par
------------------------------------------------------------------------------------------------------------------------------------
Bethesda Services, Inc.
(Delaware) Caterair Common - 3,000 1,000 100% 100% 1 1,000
International, $.01 Par
Inc. (II)
------------------------------------------------------------------------------------------------------------------------------------
Caterair New Zealand Limited
(Delaware) Bethesda Common - 3,000 1,000 100% 100% 1 1,000
Services, Inc. $.01 Par
------------------------------------------------------------------------------------------------------------------------------------
Delta Dailyfood Texas, Inc.
(Texas) Sky Chefs, Inc. Common - 1,000 100 33% 33% 3 33
No Par
------------------------------------------------------------------------------------------------------------------------------------
235
ANNEX A
Page 2
===================================================================================================================================
# OF
PERCENTAGE SHARES
ISSUER/JURISDICTION OF AUTH. ISSUED PERCENTAGE TO BE STOCK CERT. TO BE
INCORPORATION OWNER CLASS OF STOCK SHARES SHARES HELD PLEDGED NUMBER PLEDGED
-----------------------------------------------------------------------------------------------------------------------------------
LSG-Sky Chefs do Brasil
Catering Refeicoes Sky Chefs Quotas 166,201 166,201 100% 65% -- --
Ltda. (Brazil)1 International
Corp.
-----------------------------------------------------------------------------------------------------------------------------------
CateringPor - Catering
de Portugal, S.A.2 Sky Chefs 1,000 PTE per 700 700 49% -- -- --
International share par million million
Corp.
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Acceptance
Corporation SCIS Common - 100 100 100% 100% 3 100
(Delaware) $.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Credit Corp.
(Delaware) SCIS Common - 1,000 100 100% 100% 3 100
$.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Equity Corp.
(Delaware) SCIS Common - 1,000 100 100% 100% 2 100
$.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Finance Corp.
(Delaware) SCIS Common - 1,000 1,000 100% 100% 2 1,000
$.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Finance Corp. II
(Delaware) SCIS Common - 1,000 100 100% 100$ 2 100
$.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Capital Corp.
(Delaware) SCIS Common - 1,000 1,000 100% 100% 2 1,000
$.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Fiscal Corp.
(Delaware) SCIS Common - 1,000 1,000 100% 100% 2 1,000
$.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Funds Corp.
(Delaware) SCIS Common - 1,000 1,000 100% 100% 2 1,000
$.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Credit Corp. II
(Delaware) SCIS Common - 1,000 100 100% 100% 2 100
$.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Funds Corp. II
(Delaware) SCIS Common - 1,000 100 100% 100% 2 100
$.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Fiscal Corp. II
(Delaware) SCIS Common - 1,000 100 100% 100% 2 100
$.01 Par
--------
1 The quotas of LSG Sky Chefs do Brasil cannot be delivered, however,
physical possession is not necessary to perfect a pledge. A contract
of pledge is valid upon registration in the company books.
2 The shares of CateringPor cannot be delivered and cannot be pledged as
there will have to be an exorbitant stamp tax paid to the Portuguese
authorities.
236
ANNEX A
Page 3
===================================================================================================================================
# OF
CLASS PERCENTAGE STOCK SHARES
ISSUER/JURISDICTION OF AUTH. ISSUED PERCENTAGE TO BE CERT. TO BE
OF INCORPORATION OWNER STOCK SHARES SHARES HELD PLEDGED NUMBER PLEDGED
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Equity Corp. II
(Delaware) SCIS Common - 1,000 100 100% 100% 2 100
$.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Onex Ohio Capital Corp. II
(Delaware) SCIS Common - 1,000 100 100% 100% 2 100
$.01 Par
-----------------------------------------------------------------------------------------------------------------------------------
Caterair International
Corporation Caterair Common - 10,000 10,000 100% 100% 1 10,000
("Caterair") (Delaware Holdings $.01 par
Corporation
------------------------------------------------------------------------------------------------------------------------------------
Caterair Consulting Services
Corporation ASH Common - 100 100 100% 100% 4 100
(Delaware - formerly KCI No Par
Caterers, Inc.)
------------------------------------------------------------------------------------------------------------------------------------
JFK Caterers, Inc.
(Delaware) ASH Common - 100 100 100% 100% 4 100
No Par
------------------------------------------------------------------------------------------------------------------------------------
Caterair Airport Properties, Caterair New Common - 100 100 100% 100% 5 100
Inc. (Delaware - formerly Zealand No Par
Marriott Airport Properties, Limited
Inc.
------------------------------------------------------------------------------------------------------------------------------------
Caterair Taiwan Inflight
Services, Inc. Caterair New Common 1,200,000 100,000 100% Held in
(Taiwan) Zealand Trust
Limited
------------------------------------------------------------------------------------------------------------------------------------
Western Aire Chef, Inc.
(Delaware) ASH Common - 100 100 100% 100% 5 100
No Par
------------------------------------------------------------------------------------------------------------------------------------
Caterair International
Transition Common - 3,000 100 100% 100% 1 100
Corporation $.01 Par
------------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Canada, Limited
(Canada) ASH Common 1 1 100% 100% CS-5 1
====================================================================================================================================
237
ANNEX A
Page 4
=================================================================================================================================
PERCENTAGE STOCK # Of SHARES
ISSUER/JURISDICTION AUTH. ISSUED PERCENTAGE TO BE CERT. TO BE
OF INCORPORATION OWNER CLASS OF STOCK SHARES SHARES HELD PLEDGED NUMBER PLEDGED
---------------------------------------------------------------------------------------------------------------------------------
SC International ASH pound sterling1 100,000
Services Ireland Ordinary
(Ireland) Shares
US$1 A 30,000,000 1,000 100%
Ordinary
Shares
---------------------------------------------------------------------------------------------------------------------------------
Sky Chefs - U.K., Ltd. ASH pound sterling1 10,000,000 3,741,582 100% 65% 65
(England) Ordinary
Shares
---------------------------------------------------------------------------------------------------------------------------------
LSG Sky Chefs Venezuela, ASH Class B:
C.A. 100,000
(Venezuela) Bolivars
per share
Class C: 100 100 80% 65% 52
43,000
Bolivars
per share
---------------------------------------------------------------------------------------------------------------------------------
Arlington Services ASH Series B 1 50,000 50,000 100% 65% 32,500
Mexico, S.A. de C.V. peso per
share par
---------------------------------------------------------------------------------------------------------------------------------
Nova ▇▇▇▇▇▇▇ ▇.▇. ASH Class A 25 25 100% 65% of
de C.V. (Mexico) Class B
Common
Stock
Class B 14,473,000 14,473,000
---------------------------------------------------------------------------------------------------------------------------------
Cater Suprimento ASH Quotas 2,169,162 2,169,162 100% 69%
de Refeicoes, Ltda. 4,347 4,347
(Brazil)
---------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Chile, S.A. Western Aire Common 99% 65% ▇▇▇
(▇▇▇▇▇) Chef, Inc.
1,000 1,000
Caterair Airport Common 1%
Properties
("CAP")
---------------------------------------------------------------------------------------------------------------------------------
238
ANNEX A
Page 5
===================================================================================================================================
PERCENTAGE # OF SHARES
ISSUER/JURISDICTION AUTH. ISSUED PERCENTAGE TO BE STOCK CERT. TO BE
OF INCORPORATION OWNER CLASS OF STOCK SHARES SHARES HELD PLEDGED NUMBER PLEDGED
-----------------------------------------------------------------------------------------------------------------------------------
Cocina de Vuelos, ▇.▇. ▇▇▇ Common - 2,700 2,700 49% 49% -- --
de C.V. (El Salvador) 10,000 Colones
per share
-----------------------------------------------------------------------------------------------------------------------------------
Caterair Madrid, ▇.▇. ▇▇▇ Common 64,800 64,800 100% 65% 42,120
(Spain)
-----------------------------------------------------------------------------------------------------------------------------------
Caterair Barcelona, ASH (80%) Class A 14,000 14,000 100% [52.8%]
S.A. (Spain) Caterair Madrid
(20%)
Class B 3,500 3,500
-----------------------------------------------------------------------------------------------------------------------------------
Caterair Portugal 74% CIC - 40,600,000 40,600,000 74% -- -- --
Servicios Profissionaise 26% CAP ESC ESC 26%
Aero de Assistencia a
Bordo, Limitada (Portugal)
-----------------------------------------------------------------------------------------------------------------------------------
LSG Lufthansa Service ASH - 160,000 160,000 100% 65% -- --
Sky Chefs
France, S.A. (France)
-----------------------------------------------------------------------------------------------------------------------------------
Caterair Australia Pty. CAP Ordinary 5,000,000 102 100% 65% 17,18 67
Ltd. (Australia) Common &
(formerly Marriott Hotel 100%
Corporation Pty. Ltd.) Preferred
Preferred 475,900 475,900 11 475,900
-----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Argentine, Inc. ASH Common - 100 100 100% 100% 3 100
(Delaware) No Par
-----------------------------------------------------------------------------------------------------------------------------------
Caterair ▇▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇ 100% 100% 2 100
Holdings Corporation No Par
(Delaware)
-----------------------------------------------------------------------------------------------------------------------------------
Arlington Services ASH Common - 500 2 100% 1
de Panama S.A. No Par
-----------------------------------------------------------------------------------------------------------------------------------
Inflite Holdings ASH US$1 50,000 100 49% -- -- --
(Cayman) Ltd. Ordinary
(Cayman Islands) Shares
-----------------------------------------------------------------------------------------------------------------------------------
Versair In-Flite ASH Class A 7,001,000 7,001,000 7, yrs. 1,683,640
Services Limited 24% 24% 1994/1
(Jamaica)
Class B 7,016,000 7,016,000 8, VIPS 1,680,240
1994/2
-----------------------------------------------------------------------------------------------------------------------------------
239
ANNEX A
Page 6
==================================================================================================================================
PERCENTAGE # OF SHARES
ISSUER/JURISDICTION AUTH. ISSUED PERCENTAGE TO BE STOCK CERT. TO BE
OF INCORPORATION OWNER CLASS OF STOCK SHARES SHARES HELD PLEDGED NUMBER PLEDGED
----------------------------------------------------------------------------------------------------------------------------------
Antigua Catering ASH Eastern 1,040,000 540,000 49% -- -- --
Services Limited Caribbean
(Antigua) US$1
Ordinary
Shares
----------------------------------------------------------------------------------------------------------------------------------
St. Lucia Catering ASH US$1 Par SLCS 300,000 49% -- -- --
Services Ltd. 300,000
(St.Lucia)
----------------------------------------------------------------------------------------------------------------------------------
Caterair Lebanon ASH LL 100,000 1,000 1,000 20% -- -- --
▇▇▇ Par
----------------------------------------------------------------------------------------------------------------------------------
Gulf International CAP Bahraini 30,000,000 10,000 49% -- -- --
Caterers, W.L.L. Dinars
(Bahrain)
----------------------------------------------------------------------------------------------------------------------------------
Marriott In-Flite ASH Common 110,000 50,000 100% -- Held in --
Services of Korea Trust
(Korea)
----------------------------------------------------------------------------------------------------------------------------------
Barbados Flight ASH Common No Limit 80,000 49% -- Held in --
Kitchen Limited Trust
(Barbados)
----------------------------------------------------------------------------------------------------------------------------------
Airport Restaurants ASH Common No Limit 10,000 49% -- Held in --
(1992) Limited Trust
(Barbados)
==================================================================================================================================
240
ANNEX B
to AMENDED
AND RESTATED
GENERAL
PLEDGE AGREEMENT
LIST OF NOTES
================================================================================
BORROWER PLEDGOR/LENDER
--------------------------------------------------------------------------------
Sky Chefs, Inc. SC International Services, Inc.
--------------------------------------------------------------------------------
Arlington Services, Inc. SC International Services, Inc.
--------------------------------------------------------------------------------
Arlington Services Holding Corporation SC International Services, Inc.
--------------------------------------------------------------------------------
Caterair International, Inc. (II) SC International Services, Inc.
--------------------------------------------------------------------------------
Bethesda Services, Inc. SC International Services, Inc.
--------------------------------------------------------------------------------
Caterair New Zealand Limited SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Acceptance Corporation SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Credit Corp. SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Equity Corp. SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Finance Corp. SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Capital Corp. SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Fiscal Corp. SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Funds Corp. SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Credit Corp. II SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Equity corp. II SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Finance Corp. II SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Capital Corp. II SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Fiscal Corp. II SC International Services, Inc.
--------------------------------------------------------------------------------
Onex Ohio Funds Corp. II SC International Services, Inc.
--------------------------------------------------------------------------------
Caterair International Corporation SC International Services, Inc.
--------------------------------------------------------------------------------
JFK Caterers, Inc. SC International Services, Inc.
--------------------------------------------------------------------------------
Caterair St. ▇▇▇▇▇▇ Holdings Corporation SC International Services, Inc.
--------------------------------------------------------------------------------
Western Aire Chef, Inc. SC International Services, Inc.
--------------------------------------------------------------------------------
Caterair Airport Properties, Inc. SC International Services, Inc.
--------------------------------------------------------------------------------
Sky Chefs Argentine, Inc. SC International Services, Inc.
--------------------------------------------------------------------------------
Caterair Consulting Services Corporation SC International Services, Inc.
--------------------------------------------------------------------------------
SC International Services, Inc. Caterair International Corporation
--------------------------------------------------------------------------------
241
ANNEX B
Page 2
==========================================================================================
BORROWER PLEDGOR/LENDER
------------------------------------------------------------------------------------------
SC International Servics, Inc. Sky Chefs, Inc.
------------------------------------------------------------------------------------------
Sky Chefs International Corp. Sky Chefs, Inc.
------------------------------------------------------------------------------------------
Arlington Services, Inc. Sky Chefs, Inc.
------------------------------------------------------------------------------------------
Sky Chefs, Inc. Arlington Services, Inc.
------------------------------------------------------------------------------------------
Arlington Services Holding Corporation Arlington Services, Inc.
------------------------------------------------------------------------------------------
Bethesda Services, Inc. Caterair International, Inc. (II)
------------------------------------------------------------------------------------------
Caterair New Zealand Limited Bethesda Services, Inc.
------------------------------------------------------------------------------------------
Caterair Airport Properties, Inc. Caterair International, Inc. (II)
------------------------------------------------------------------------------------------
Caterair Airport Properties, Inc. Caterair New Zealand Limited
------------------------------------------------------------------------------------------
Arlington Services de Panama, S.A. SC International Services, Inc.
------------------------------------------------------------------------------------------
Sky Chefs de Panama S.A. SC International Services, Inc.
------------------------------------------------------------------------------------------
Inversiones Turisticas Aeropuerto Panama, S.A. SC International Services, Inc.
------------------------------------------------------------------------------------------
LSG Lufthansa Service Sky Chefs France, S.A SC International Services, Inc.
------------------------------------------------------------------------------------------
Sky Chefs Chile, S.A. SC International Services, Inc.
------------------------------------------------------------------------------------------
Caterair Servicos Industriales, Ltda. SC International Services, Inc.
------------------------------------------------------------------------------------------
Cater Suprimento De Refeicoes, Ltda. SC International Services, Inc.
------------------------------------------------------------------------------------------
LSG-Sky Chefs do Brasil Catering --Refeicoes Ltda. SC International Services, Inc.
------------------------------------------------------------------------------------------
ServCater Internacional Ltda. SC International Services, Inc.
------------------------------------------------------------------------------------------
ServCater Internacional Ltda. Sky Chefs, Inc.
------------------------------------------------------------------------------------------
ServCater Internacional Ltda. Sky Chefs International Corp.
------------------------------------------------------------------------------------------
Caterair Servicos de Bordo e Hotelaria, S.A. SC International Services, Inc.
------------------------------------------------------------------------------------------
Sky Chefs - U.K., Ltd. SC International Services, Inc.
------------------------------------------------------------------------------------------
Arlington Services Mexico, S.A. de C.V. SC International Services, Inc.
------------------------------------------------------------------------------------------
Nova ▇▇▇▇▇▇▇, ▇.▇. de C.V. SC International Services, Inc.
------------------------------------------------------------------------------------------
Caterair de Mexico, S.A. de C.V. SC International Services, Inc.
------------------------------------------------------------------------------------------
Immobiliaria Marracas, S.A. de C.V. SC International Services, Inc.
------------------------------------------------------------------------------------------
Casa ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇.▇. de C.V. SC International Services, Inc.
------------------------------------------------------------------------------------------
Comisariato Gotre, S.A. de C.V. SC International Services, Inc.
------------------------------------------------------------------------------------------
242
ANNEX B
Page 3
========================================================================================
BORROWER PLEDGOR/LENDER
----------------------------------------------------------------------------------------
Cocina del Aire Provincia, S.A. de C.V. SC International Services, Inc.
----------------------------------------------------------------------------------------
Sky Chefs de Mexico, S.A. de C.V. SC International Services, Inc.
----------------------------------------------------------------------------------------
Caterair Taiwan Inflight Services, Inc. SC International Services, Inc.
----------------------------------------------------------------------------------------
Caterair Madrid, S.A. SC International Services, Inc.
----------------------------------------------------------------------------------------
Caterair Barcelona, S.A. SC International Services, Inc.
----------------------------------------------------------------------------------------
Caterair Australia Pty. Ltd. SC International Services, Inc.
----------------------------------------------------------------------------------------
Caterair Portugal-Assistencia A Bordo Limitada SC International Services, Inc.
----------------------------------------------------------------------------------------
Sky Chefs Canada, Limited SC International Services, Inc.
----------------------------------------------------------------------------------------
LSG Sky Chefs Venezuela C.A. SC International Services, Inc.
----------------------------------------------------------------------------------------
Sky Chefs Ireland SC International Services, Inc.
----------------------------------------------------------------------------------------
SC International Services Ireland Arlington Services Holding Corporation
----------------------------------------------------------------------------------------
Arlington Services Panama, S.A. Arlington Services Holding Corporation
----------------------------------------------------------------------------------------
Caterair Taiwan Inflight Services, Inc. Bethesda Services Holding Corporation
----------------------------------------------------------------------------------------
Caterair Australia Pty. Ltd. Caterair Airport Properties,Inc.
========================================================================================
243
ANNEX C
to
AMENDED AND
RESTATED GENERAL
PLEDGE AGREEMENT
FORM OF CERTIFICATE
[Letterhead of Pledgor]
[Date]
▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Collateral Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ___________________
Ladies and Gentlemen:
Reference is hereby made to the Pledge Agreement, dated as of September 29,
1995 and amended and restated as of August 28, 1997, among the undersigned, the
other pledgors party thereto, and you, as Collateral Agent (the "Pledge
Agreement"). Pursuant to Section 3.2 of the Pledge Agreement, the undersigned
hereby pledges and delivers to you under the Pledge Agreement [stock certificate
number ____, representing ____ shares of the capital stock of ____, together
with a duly executed and undated stock power for such shares] [a promissory note
issued by __________ in favor of the undersigned, duly endorsed in blank].
Very truly yours,
[NAME OF PLEDGOR]
By_______________________
Title:
Accepted this ____ day
of ________, _____:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Collateral Agent
By________________________
Title:
244
EXHIBIT G-2
AMENDED AND RESTATED OFSI PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT (as amended, modified or
supplemented from time to time, this "Agreement"), dated as of September 29,
1995 and amended and restated as of August 28, 1997, made by Onex Food Services,
Inc. (the "Pledgor"), in favor of ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as
Collateral Agent (together with any successor pledgee, the "Pledgee"), for the
benefit of the Secured Creditors (as defined below). Except as otherwise defined
herein, capitalized terms used herein and defined in the SCIS Credit Agreement
(as defined below) or in the Caterair Credit Agreement (as defined below), as
the case may be, shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, the Pledgor, SC International Services, Inc.
("SCIS"), Caterair Holdings Corporation ("Caterair Holdings"), Caterair
International Corporation ("Caterair"), various lenders from time to time party
thereto (the "SCIS Banks"), Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities
Inc., as Co-Arrangers (the "SCIS Co-Arrangers"), Bankers Trust Company, as
Syndication Agent, The Bank of New York, as Co-Agent, and ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Administrative Agent, (together with any successor
administrative agent, the "SCIS Administrative Agent"), have entered into a
Credit Agreement, dated as of September 29, 1995 and amended and restated as of
August 28, 1997, providing for the making of loans to SCIS and the issuance of,
and participation in, letters of credit for the account of SCIS as contemplated
therein (as used herein, the term "SCIS Credit Agreement" means the Credit
Agreement described above in this paragraph, as the same may be amended,
modified, extended, renewed, replaced, restated or supplemented from time to
time, and including any agreement extending the maturity of, or restructuring
all or any portion of the Indebtedness under such agreement or any successor
agreements) (the SCIS Banks, the SCIS Co-Arrangers and the SCIS Administrative
Agent are herein called the "SCIS Bank Creditors");
WHEREAS, SCIS, Caterair, various lenders from time to time
party thereto (the "Caterair Banks", and together with the SCIS Banks, the
"Banks"), Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers
(the "Caterair Co-Arrangers", and together with the SCIS Co-Arrangers, the
"Co-Arrangers"), Bankers Trust Company, as Syndication Agent, and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Administrative Agent (together with any
successor administration agent, the "Caterair Administrative Agent", and
together with the SCIS Administrative Agent, the "Administrative Agents"), have
entered into a Term Loan Agreement, dated as of August 28, 1997, providing for
the
245
EXHIBIT G-2
Page 2
making of loans to SCIS and Caterair as contemplated therein (as used herein,
the term "Caterair Credit Agreement" means the Term Loan Agreement described
above in this paragraph, as the same may be amended, modified, extended,
renewed, replaced, restated or supplemented from time to time, and including any
agreement extending the maturity of, or restructuring all or any portion of the
Indebtedness under such agreement or any successor agreements, and the SCIS
Credit Agreement, together with the Caterair Credit Agreement, are herein called
the "Credit Agreements") (the Caterair Banks, the Caterair Co-Arrangers and the
Caterair Administrative Agent are herein called the "Caterair Bank Creditors",
and together with the SCIS Bank Creditors, are herein called "Bank Creditors");
WHEREAS, SCIS, Caterair and/or one or more of their respective
Subsidiaries may at any time and from time to time enter into one or more
Interest Rate Protection Agreements or Other Hedging Agreements with one or more
Banks or any affiliate thereof (each such Bank or affiliate, even if the
respective Bank subsequently ceases to be a Bank under the applicable Credit
Agreement for any reason, together with such Bank's or affiliate's successors
and assigns, if any, collectively, the "Other Creditors," and together with the
Bank Creditors and the Pledgee, the "Secured Creditors");
WHEREAS, pursuant to each OFSI Guaranty, the Pledgor has
guaranteed to the Secured Creditors the payment when due of all Guaranteed
Obligations as described therein;
WHEREAS, the Pledgor entered into the OFSI Pledge Agreement,
dated as of September 29, 1995 (as amended, modified or supplemented to the date
hereof, the "Original OFSI Pledge Agreement");
WHEREAS, it is a condition precedent to the making of loans
and the issuance of letters of credit under the Credit Agreements that the
Pledgor shall have executed and delivered a counterpart to this Agreement; and
WHEREAS, the Pledgor will obtain benefits from the incurrence
of loans and the issuance of letters of credit under the Credit Agreements and
the entering into of Interest Rate Protection Agreements or Other Hedging
Agreements with the Other Creditors and, accordingly, the Pledgor desires to
enter into this Agreement in order to satisfy the conditions described in the
preceding paragraph and to amend and restate the Original OFSI Pledge Agreement
in its entirety in the form of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to the Pledgor, the receipt and sufficiency of which are
hereby acknowledged, the Pledgor hereby makes the following representations and
warranties to the Pledgee for the
246
EXHIBIT G-2
Page 3
benefit of the Secured Creditors and hereby covenants and agrees with the
Pledgee for the benefit of the Secured Creditors as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by the
Pledgor for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness of the Pledgor to the SCIS Bank Creditors,
whether now existing or hereafter incurred under, arising out of, or in
connection with the SCIS Credit Agreement and the other SCIS Credit
Documents (such term to mean the "Credit Documents" as defined in the
SCIS Credit Agreement") (including, without limitation, all of its
obligations, liabilities and indebtedness under the OFSI Guaranty (as
defined in the SCIS Credit Agreement)) to which the Pledgor is a party
and the due performance and compliance by the Pledgor with all of the
terms, conditions and agreements contained in the SCIS Credit Agreement
and such other SCIS Credit Documents (all such obligations, liabilities
and indebtedness under this clause (i), except to the extent consisting
of obligations, liabilities or indebtedness with respect to Interest
Rate Protection Agreements or Other Hedging Agreements, being herein
collectively called the "SCIS Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness of the Pledgor to the Caterair Bank
Creditors, whether now existing or hereafter incurred under, arising
out of, or in connection with the Caterair Credit Agreement and the
other Caterair Credit Documents (such term to mean the "Credit
Documents" as defined in the Caterair Credit Agreement", and the
Caterair Credit Documents, together with the SCIS Credit Documents, are
referred to herein as the "Credit Documents") (including, without
limitation, all of its obligations, liabilities and indebtedness under
the OFSI Guaranty (as defined in the Caterair Credit Agreement)) to
which the Pledgor is a party and the due performance and compliance by
the Pledgor with all of the terms, conditions and agreements contained
in the Caterair Credit Agreement and such other Caterair Credit
Documents (all such obligations, liabilities and indebtedness under
this clause (i), except to the extent consisting of obligations,
liabilities or indebtedness with respect to Interest Rate Protection
Agreements or Other Hedging Agreements, being herein collectively
called the "Caterair Credit Document Obligations");
(iii) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness owing by the Pledgor to the Other
Creditors under, arising out of or with respect to, any Interest Rate
Protection Agreement or Other Hedging Agreement (including,
247
EXHIBIT G-2
Page 4
without limitation, all of its obligations, liabilities and
indebtedness under each OFSI Guaranty in respect of such Interest Rate
Protection Agreements or Other Hedging Agreements), whether such
Interest Rate Protection Agreement or Other Hedging Agreement is now in
existence or hereafter arising, and the due performance and compliance
by the Pledgor with all of the terms, conditions and agreements
contained therein (all such obligations, liabilities and indebtedness
described in this clause (iii) being herein collectively called the
"Other Obligations");
(iv) any and all sums advanced by the Pledgee in order to
preserve the Collateral (as hereinafter defined) or preserve its
security interest in the Collateral;
(v) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of the
Pledgor referred to in clauses (i), (ii) and (iii) above, upon the
occurrence and during the continuance of an Event of Default (such
term, as used in this Agreement, shall mean any Event of Default under,
and as defined in, either the Credit Agreement, or any payment default
under any Interest Rate Protection Agreement or Other Hedging
Agreement, and shall, in any event, include without limitation, any
payment default (after the expiration of any applicable grace period)
on any of the Obligations (as hereinafter defined)) shall have occurred
and be continuing, the reasonable expenses of retaking, holding,
preparing for sale or lease, selling or otherwise disposing of or
realizing on the Collateral, or of any exercise by the Pledgee of its
rights hereunder, together with reasonable attorneys' fees and court
costs; and
(vi) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of
this Agreement.
All such obligations, liabilities, indebtedness, sums and expenses set forth in
clauses (i) through (vi) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITION OF STOCK, NOTES, SECURITIES, ETC. As used
herein, (i) the term "Stock" shall mean all of the issued and outstanding shares
of capital stock (including, but not limited to, warrants, options or other
rights to acquire shares thereof) at any time owned by the Pledgor of SCIS or
any of its Subsidiaries or Caterair Holdings or any of its Subsidiaries,
provided that the term "Stock" shall not include, except as otherwise provided
below, more than 65% of the total combined voting power of all classes of
capital stock of any Foreign Subsidiary owned by the Pledgor or any stock held
248
EXHIBIT G-2
Page 5
as part of the Class B Assets; (ii) the term "Notes" shall mean all of the
promissory notes from time to time issued to, or held by, the Pledgor
representing obligations of SCIS or any of its Subsidiaries, Caterair Holdings
or any of its Subsidiaries (including the Caterair Holdings Unsecured Debenture
to the extent held by the Pledgor) or any of the Lufthansa Companies (to the
extent the obligations of the Lufthansa Companies are evidenced by a Note); and
(iii) the term "Securities" shall mean all of the Stock and Notes. The Pledgor
represents and warrants that, on the date hereof, (a) the Stock held by the
Pledgor consists of the number and type of shares of the stock of the
corporations as described in Annex A hereto, (b) such Stock constitutes that
percentage of the issued and outstanding shares of capital stock of the issuing
corporation as is set forth in Annex A hereto, (c) the Notes held by the Pledgor
consist of the promissory notes described in Annex B hereto, (d) the Pledgor is
the holder of record and sole beneficial owner of the Stock and the Notes and
there exist no options or preemption rights in respect of any of the Stock and
(e) the Pledgor owns no other Securities. Following a change in the relevant
provisions of the Code or the regulations, published rules, published rulings,
notices or other official pronouncements issued or promulgated thereunder, if
the Pledgee requests a pledge of additional stock of any Foreign Subsidiary of
the Pledgor, all of the stock of which Foreign Subsidiary has not already been
pledged pursuant this Agreement, then within 90 days after such request the
Pledgor shall either (i) pledge such additional stock of such Foreign Subsidiary
or (ii) deliver to the relevant Pledgee an opinion of the counsel of the
Pledgor, which counsel shall be reasonably acceptable to the Pledgee, that the
requested pledge of such additional stock is more likely than not to cause the
undistributed earnings of such Foreign Subsidiary to be treated as a deemed
dividend to such Foreign Subsidiary's United States parent for Federal income
tax purposes.
3. PLEDGE OF SECURITIES, ETC.
3.1. Pledge. To secure the Obligations of the Pledgor, the
Pledgor hereby (i) grants to the Pledgee a security interest in all of the
Collateral owned by the Pledgor, (ii) pledges and deposits as security with the
Pledgee, the Securities owned by the Pledgor on the date hereof, and delivers to
the Pledgee certificates or instruments, if any, therefor, (x) duly endorsed in
blank by the Pledgor in the case of Notes, and (y) accompanied by undated stock
powers duly executed in blank by the Pledgor (and accompanied by any transfer
tax stamps required in connection with the pledge of such Securities) in the
case of Stock, or such other instruments of transfer as are reasonably
acceptable to the Pledgee and (iii) assigns, transfers, hypothecates mortgages,
charges and sets over to the Pledgee all of the Pledgor's right, title and
interest in and to such Securities (and in and to the certificates or
instruments evidencing such Securities), to be held by the Pledgee upon the
terms and conditions set forth in this Agreement.
3.2. Subsequently Acquired Securities. If the Pledgor shall
acquire (by purchase, stock dividend or otherwise) any additional Securities at
any time or from time
249
EXHIBIT G-2
Page 6
to time after the date hereof, the Pledgor will promptly thereafter pledge and
deposit such Securities (or certificates or instruments representing such
Securities) as security with the Pledgee and deliver to the Pledgee certificates
therefor or instruments thereof, duly endorsed in blank in the case of such
Notes, accompanied by undated stock powers duly executed in blank by the Pledgor
(and accompanied by any transfer tax stamps required in connection with the
pledge of such Securities) in the case of such Stock, or such other instruments
of transfer as are reasonably acceptable to the Pledgee, and accompanied by a
certificate executed by a principal executive officer of the Pledgor in the form
attached as Annex C hereto describing such Securities and certifying that the
same has been duly pledged with the Pledgee hereunder. Except as otherwise
provided in the last sentence of Section 2 hereof, the Pledgor shall not be
required at any time to pledge hereunder any Stock which is more than 65% of the
total combined voting power of all classes of capital stock of any Foreign
Subsidiary owned by the Pledgor.
3.3. Uncertificated Securities. Notwithstanding anything to
the contrary contained in Sections 3.1 and 3.2 hereof, if any Securities
(whether now owned or hereafter acquired) are uncertificated securities, the
Pledgor shall promptly notify the Pledgee thereof, and shall promptly take all
actions required to perfect the security interest of the Pledgee under
applicable law (including, in any event, under Sections 8-313 and 8-321 of the
New York Uniform Commercial Code, if applicable). The Pledgor further agrees to
take such actions as the Pledgee deems reasonably necessary or desirable to
effect the foregoing and to permit the Pledgee to exercise any of its rights and
remedies hereunder, and agrees to provide an opinion of counsel reasonably
satisfactory to the Pledgee with respect to any such pledge of uncertificated
Securities promptly upon the reasonable request of the Pledgee.
3.4. Definitions of Pledged Stock; Pledged Notes; Pledged
Securities and Collateral. All Stock at any time pledged or required to be
pledged hereunder is hereinafter called the "Pledged Stock;" all Notes at any
time pledged or required to be pledged hereunder are hereinafter called the
"Pledged Notes;" all Pledged Stock and Pledged Notes together are called the
"Pledged Securities;" and the Pledged Securities, together with all proceeds
thereof, including any securities and moneys received and at the time held by
the Pledgee hereunder, are herein called the "Collateral."
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Pledged Securities, which may be held (in
the discretion of the Pledgee) in the name of the Pledgor, endorsed or assigned
in blank or in favor of the Pledgee or any nominee or nominees of the Pledgee or
a sub-agent appointed by the Pledgee.
250
EXHIBIT G-2
Page 7
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until
there shall have occurred and be continuing an Event of Default and the Pledgee
has exercised any of its remedies under Section 7(d) hereof (or has given notice
to the Pledgor that it intends to exercise such remedies, although no such
notice shall be required and the Pledgee shall be entitled to exercise such
remedies immediately upon the occurrence of a bankruptcy or insolvency Event of
Default of the type described in either Credit Agreement in respect of the
Pledgor), the Pledgor shall be entitled to exercise any and all voting and other
consensual rights and powers pertaining to the Pledged Securities owned by it,
and to give consents, waivers or ratifications in respect thereof; provided that
no vote shall be cast or any consent, waiver or ratification given or any action
taken which would violate or be inconsistent with any of the terms of this
Agreement, the Credit Agreements, any other Credit Document or any Interest Rate
Protection Agreement or Other Hedging Agreement (collectively, the "Secured Debt
Agreements"), or which would have the effect of impairing the value of the
Collateral or any part thereof or the position or interests of the Pledgee in
the Collateral. All such rights of the Pledgor to vote and to give consents,
waivers and ratifications shall cease in case an Event of Default has occurred
and is continuing, and the Pledgee has exercised any of its remedies under
Section 7(d) hereof (or has given notice to the Pledgor that it intends to
exercise such remedies, although no such notice shall be required and the
Pledgee shall be entitled to exercise such remedies immediately upon the
occurrence of a bankruptcy or insolvency Event of Default of the type described
in either Credit Agreement in respect of the Pledgor).
6. DIVIDENDS AND OTHER DISTRIBUTIONS. (a) Unless and until
there shall have occurred and be continuing an Event of Default and the Pledgee
has exercised any of its remedies under Section 7(a) hereof (or has given notice
to the Pledgor that it intends to exercise such remedies, although no such
notice shall be required and the Pledgee shall be entitled to exercise such
remedies immediately upon the occurrence of an Event of Default of the type
described in either Credit Agreement in respect of the Pledgor), (i) all
dividends and other distributions payable in respect of the Pledged Stock shall
be paid to the Pledgor in accordance with (and to the extent permitted by) the
Credit Agreements, and (ii) all payments in respect of the Pledged Notes shall
be paid to the Pledgor.
(b) Nothing contained in this Section 6 shall limit or
restrict in any way the Pledgee's right to receive proceeds of the Collateral in
any form in accordance with Section 3 of this Agreement. All dividends,
distributions or other payments in respect of the Collateral which are received
by the Pledgor contrary to the provisions of this Section 6 or Section 7 hereof
shall be held in trust for the benefit of the Pledgee, shall be segregated from
other property or funds of the Pledgor and shall be forthwith delivered to the
Pledgee as Collateral in the same form as so received (with any necessary
endorsement).
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7. REMEDIES UPON EVENTS OF DEFAULT. If there shall have
occurred and be continuing an Event of Default, then and in every such case, the
Pledgee shall be entitled to exercise all of the rights, powers and remedies
(whether vested in it by this Agreement, any other Secured Debt Agreement or by
law) for the protection and enforcement of its rights in respect of the
Collateral, and the Pledgee shall be entitled to exercise all the rights and
remedies of a secured party under the Uniform Commercial Code and also shall be
entitled, without limitation, to exercise the following rights, which the
Pledgor hereby agrees to be commercially reasonable:
(a) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 hereof to the Pledgor;
(b) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(c) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect
upon any Pledged Note (including, without limitation, to make any
demand for payment thereon);
(d) to vote all or any part of the Pledged Stock (whether or
not transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though it were the outright owner thereof
(the Pledgor hereby irrevocably constituting and appointing the Pledgee
the proxy and attorney-in-fact of the Pledgor, with full power of
substitution to do so); and
(e) at any time and from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by the Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine; provided that at least 10 days' written notice of the time
and place of any such sale shall be given to the Pledgor. The Pledgee
shall not be obligated to make any such sale of Collateral regardless
of whether any such notice of sale has theretofore been given. The
Pledgor hereby waives and releases to the fullest extent permitted by
law any right or equity of redemption with respect to the Collateral,
whether before or after sale hereunder, and all rights, if any, of
marshalling the Collateral and any other security for the Obligations
or otherwise. At any such sale, unless prohibited by applicable law,
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the Pledgee on behalf of the Secured Creditors may bid for and purchase
all or any part of the Collateral so sold free from any such right or
equity of redemption. Neither the Pledgee nor any other Secured
Creditor shall be liable for failure to collect or realize upon any or
all of the Collateral or for any delay in so doing nor shall any of
them be under any obligation to take any action whatsoever with regard
thereto.
8. REMEDIES, ETC. Each and every right, power and remedy of
the Pledgee provided for in this Agreement or any other Secured Debt Agreement,
or now or hereafter existing at law or in equity or by statute shall be
cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Pledgee or any
other Secured Creditor of any one or more of the rights, powers or remedies
provided for in this Agreement or any other Secured Debt Agreement or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee or any other Secured
Creditor of all such other rights, powers or remedies, and no failure or delay
on the part of the Pledgee or any other Secured Creditor to exercise any such
right, power or remedy shall operate as a waiver thereof. No notice to or demand
on the Pledgor in any case shall entitle it to any other or further notice or
demand in similar or other circumstances or constitute a waiver of any of the
rights of the Pledgee or any other Secured Creditor to any other or further
action in any circumstances without notice or demand. The Secured Creditors
agree that this Agreement may be enforced only by the action of the Pledgee, in
each case acting upon the instructions of the Required Secured Creditors (as
defined in the Security Agreement) and that no other Secured Creditor shall have
any right individually to seek to enforce or to enforce this Agreement or to
realize upon the security to be granted hereby, it being understood and agreed
that such rights and remedies may be exercised by the Pledgee for the benefit of
the Secured Creditors upon the terms of this Agreement.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Pledgee upon any sale or other disposition of the Collateral, together with all
other moneys received by the Pledgee hereunder, shall be applied to the payment
of the Obligations in the manner provided in Section 7.4 of the Security
Agreement.
(b) It is understood and agreed that the Pledgor shall remain
liable to the extent of any deficiency between the amount of the proceeds of the
Collateral hereunder and the aggregate amount of the Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of
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the purchase money paid over to the Pledgee or such officer or be answerable in
any way for the misapplication or nonapplication thereof.
11. INDEMNITY. (a) The Pledgor agrees to indemnify and hold
harmless the Pledgee in such capacity and each other Secured Creditor and their
respective successors, assigns, employees, agents and servants (individually an
"Indemnitee," and collectively the "Indemnitees") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all reasonable costs, expenses or
disbursements (including reasonable attorneys' fees and expenses) (for the
purposes of this Section 11 the foregoing are collectively called "expenses") of
whatever kind and nature imposed on, asserted against or incurred by any of the
Indemnitees in any way relating to or arising out of this Agreement or the
enforcement of any of the terms of, or the preservation of any rights hereunder,
or in any way relating to or arising out of the ownership, control, acceptance,
possession, condition, sale or other disposition, or use of the Collateral,
provided that no Indemnitee shall be indemnified pursuant to this Section 11(a)
for losses, damages or liabilities to the extent caused by the gross negligence
or wilful misconduct of such Indemnitee. The Pledgor agrees that upon written
notice by any Indemnitee of the assertion of such a liability, obligation,
damage, injury, penalty, claim, demand, action, suit or judgment, the Pledgor
shall to the extent requested to do so assume full responsibility for the
defense thereof.
(b) Without limiting the application of Section 11(a) hereof,
the Pledgor agrees to pay or reimburse the Pledgee for any and all fees, costs
and expenses, including reasonable attorneys' fees, of whatever kind or nature
incurred in connection with the creation, preservation or protection of the
Pledgee's Liens on, and security interest in, the Collateral, including, without
limitation, all fees and taxes in connection with the recording or filing of
instruments and documents in public offices, payment or discharge of any taxes
or Liens upon or in respect of the Collateral, and all other reasonable fees,
costs and expenses in connection with protecting, maintaining or preserving the
Collateral and the Pledgee's interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting any actions, suits or
proceedings arising out of or relating to the Collateral.
(c) If and to the extent that the obligations of the Pledgor
under this Section 11 are unenforceable for any reason, the Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) The Pledgor
agrees that it will join with the Pledgee in executing and, at the Pledgor's own
expense, file and refile under the Uniform Commercial Code of any jurisdiction
or other applicable law such financing statements, continuation statements and
other documents in such offices as the Pledgee may deem reasonably necessary and
wherever required by law
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in order to perfect and preserve the Pledgee's security interest in the
Collateral and hereby authorizes the Pledgee to file financing statements and
amendments thereto relative to all or any part of the Collateral without the
signature of the Pledgor where permitted by law, and agrees to do such further
acts and things and to execute and deliver to the Pledgee such additional
conveyances, assignments, agreements and instruments as the Pledgee may
reasonably require or deem necessary to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Pledgee its rights, powers
and remedies hereunder.
(b) The Pledgor hereby appoints the Pledgee the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, from time to time after the occurrence
and during the continuance of an Event of Default, in the Pledgee's reasonable
discretion to take any action and to execute any instrument which the Pledgee
may deem reasonably necessary or advisable to accomplish the purposes of this
Agreement.
13. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance
with this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed by each Secured Creditor that
by accepting the benefits of this Agreement each such Secured Creditor
acknowledges and agrees that the obligations of the Pledgee as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement. The Pledgee shall act hereunder on the terms and conditions set forth
herein and in Article X of the Security Agreement.
14. TRANSFER BY THE PLEDGOR. The Pledgor will not sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except as may
be permitted in accordance with the terms of the Credit Agreement).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR.
The Pledgor represents, warrants and covenants that (i) it is the legal, record
and beneficial owner of, and has good and marketable title to, all Pledged
Securities pledged by it hereunder, subject to no Lien (except the Lien created
by this Agreement and Liens of the type described in Sections 9.01(i), (v) and
(xii) of the SCIS Credit Agreement); (ii) it has the corporate power and
authority to pledge all the Pledged Securities pledged by it pursuant to this
Agreement; (iii) this Agreement has been duly authorized, executed and delivered
by the Pledgor and constitutes a legal, valid and binding obligation of the
Pledgor enforceable in accordance with its terms, except to the extent that the
enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law); (iv) no consent of any other party (including, without
limitation, any stockholder or creditor of the Pledgor or any of its
255
EXHIBIT G-2
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Subsidiaries) and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration with,
any governmental authority is required to be obtained by the Pledgor for the
execution, delivery or performance of this Agreement by the Pledgor, the
validity or enforceability of this Agreement and the perfection or
enforceability of the Pledgee's security interest in the Collateral (other than,
in respect of the proceeds of the Pledged Securities, the filing of Form UCC-1
financing statements or the appropriate equivalent (which filings, have been
made)) or except for compliance with or as may be required by applicable
securities laws, the exercise by the Pledgee of any of its rights or remedies
provided herein; (v) the execution, delivery and performance of this Agreement
by the Pledgor, and the compliance by it with the terms and provisions hereof,
will not violate any provision of any applicable law or regulation or of any
applicable order, judgment, writ, injunction or decree of any court, arbitrator
or governmental authority, domestic or foreign, applicable to the Pledgor, or of
the certificate of incorporation or by-laws (or equivalent organizational
documents) of the Pledgor or of any securities issued by the Pledgor or any of
its Subsidiaries, or of any mortgage, indenture, lease, deed of trust, loan
agreement, credit agreement or any other material contract, agreement or
instrument or undertaking to which the Pledgor or any of its Subsidiaries is a
party or which purports to be binding upon the Pledgor or any of its
Subsidiaries or upon any of their respective assets and will not result in the
creation or imposition of (or the obligation to create or impose) any lien or
encumbrance on any of the Collateral of the Pledgor or any of its Subsidiaries
except as contemplated by this Agreement; (vi) all the shares of Stock have been
duly and validly issued, are fully paid and non-assessable and are subject to no
options to purchase or similar rights; (vii) each of the Pledged Notes issued by
any Credit Party or by any of its Subsidiaries constitutes, or when executed by
the respective obligor thereof will constitute, the legal, valid and binding
obligation of such obligor, enforceable in accordance with its terms, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law); and (viii) the pledge,
assignment and delivery to the Pledgee of the Securities (other than
uncertificated securities) pursuant to this Agreement creates a valid and
perfected first priority Lien in the Securities, and the proceeds thereof,
subject to no other Lien or to any agreement purporting to grant to any third
party a Lien on the property or assets of the Pledgor which would include the
Securities. The Pledgor covenants and agrees that it will defend the Pledgee's
right, title and security interest in and to the Securities and the proceeds
thereof against the claims and demands of all persons whomsoever; and the
Pledgor covenants and agrees that it will have like title to and right to pledge
any other property at any time hereafter pledged to the Pledgee as Collateral
hereunder and will likewise defend the right thereto and security interest
therein of the Pledgee and the Secured Creditors.
16. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of
the Pledgor under this Agreement shall be absolute and unconditional and shall
remain in
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full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (i) any renewal, extension, amendment
or modification of or addition or supplement to or deletion from any Secured
Debt Agreement or any other instrument or agreement referred to therein, or any
assignment or transfer of any thereof; (ii) any waiver, consent, extension,
indulgence or other action or inaction under or in respect of any such Secured
Debt Agreement or other agreement or instrument including, without limitation,
this Agreement; (iii) any furnishing of any additional security to the Pledgee
or its assignee or any acceptance thereof or any release of any security by the
Pledgee or its assignee; (iv) any limitation on any party's liability or
obligations under any such instrument or agreement or any invalidity or
unenforceability, in whole or in part, of any such instrument or agreement or
any term thereof; or (v) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to the Pledgor or any Subsidiary of the Pledgor, or any action taken
with respect to this Agreement by any trustee or receiver, or by any court, in
any such proceeding, whether or not the Pledgor shall have notice or knowledge
of any of the foregoing (it being understood that the enforcement hereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar rights generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law)).
17. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing an Event of Default then, and in every such case, upon receipt by the
Pledgor from the Pledgee of a written request or requests that the Pledgor cause
any registration, qualification or compliance under any Federal, state or other
applicable securities law or laws to be effected with respect to all or any part
of the Pledged Stock, the Pledgor as soon as practicable and at its expense will
cause such registration to be effected (and be kept effective) and will cause
such qualification and compliance to be declared effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Pledged Stock, including, without limitation, registration
under the Securities Act of 1933, as then in effect (or any similar statute then
in effect), appropriate qualifications under applicable blue sky, state or other
applicable securities laws and appropriate compliance with any other government
requirements; provided that the Pledgee shall furnish to the Pledgor such
information regarding the Pledgee as the Pledgor may reasonably request in
writing and as shall be required in connection with any such registration,
qualification or compliance. The Pledgor will cause the Pledgee to be kept
advised in writing as to the progress of each such registration, qualification
or compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee, each other Secured Creditor and all others participating in the
distribution of such Pledged Stock against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related registration statement,
notification or the like) or by any
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omission (or alleged omission) to state therein (or in any related registration
statement, notification or the like) a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as the same may have been caused by an untrue statement or omission
based upon information furnished in writing to the Pledgor by the Pledgee or
such other Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to
exercise its right to sell all or any part of the Pledged Securities pursuant to
Section 7 hereof, and such Pledged Securities or the part thereof to be sold
shall not, for any reason whatsoever, be effectively registered under the
Securities Act of 1933, as then in effect, the Pledgee may, in its sole and
absolute discretion, sell such Pledged Securities or part thereof by private
sale in such manner and under such circumstances as the Pledgee may deem
necessary or advisable in order that such sale may legally be effected without
such registration. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion (i) may proceed to make
such private sale notwithstanding that a registration statement for the purpose
of registering such Pledged Securities or part thereof shall have been filed
under such Securities Act, (ii) may approach and negotiate with a single
possible purchaser to effect such sale, and (iii) may restrict such sale to a
purchaser who will represent and agree that such purchaser is purchasing for its
own account, for investment, and not with a view to the distribution or sale of
such Pledged Securities or part thereof. In the event of any such sale, the
Pledgee shall incur no responsibility or liability for selling all or any part
of the Pledged Securities at a price which the Pledgee, in its sole and absolute
discretion, in good ▇▇▇▇▇ ▇▇▇▇▇ reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration as aforesaid.
18. TERMINATION; RELEASE. (a) On the Termination Date (as
defined in the Security Agreement), but only after giving effect to the
repayments to be made on such date, this Agreement and the security interest
created hereby shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 11 hereof shall survive any such
termination), and the Pledgee, at the request and expense of the Pledgor, will
execute and deliver to the Pledgor such proper instrument or instruments
acknowledging the satisfaction and termination of this Agreement, and will duly
assign, release, transfer and deliver to the Pledgor (without recourse and
without any representation or warranty) all of the Collateral as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement, together with any moneys at the time held by the Pledgee or any of
its sub-agents hereunder.
(b) In the event that all or any part of the Collateral is
sold, conveyed or disposed of in connection with any form of asset disposition
permitted by the Credit Agreements or otherwise released, in whole or in part,
at the direction of the Required Secured Creditors and the proceeds of such
asset disposition are applied in accordance with,
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and to the extent required by, the provisions of the Credit Agreements, the
Pledgee, at the request and expense of the Pledgor, will duly assign, release,
transfer and deliver to the Pledgor (without recourse and without any
representation or warranty) such of the Collateral (and releases therefor) as is
then being (or has been) so sold or released and has not theretofore been
released pursuant to this Agreement.
(c) At any time that the Pledgor desires that the Pledgee
assign, release, transfer and deliver Collateral as provided in Section 18(a) or
(b) hereof, it shall deliver to the Pledgee a certificate signed by a principal
executive officer of the Pledgor stating that the release of the respective
Collateral is in accordance with Section 18(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any
Secured Creditor as the result of any release of Collateral by it in accordance
with this Section 18.
19. NOTICES ETC. All such notices and communications hereunder
shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
overnight courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when delivered to the telegraph company, cable company or
overnight courier, as the case may be, or sent by telex or telecopier and when
mailed shall be effective three Business Days following deposit in the mail with
proper postage, except that notices and communications to the Pledgee shall not
be effective until received by the Pledgee. All notices and other communications
shall be in writing and addressed as follows:
(a) if to the Pledgor, to the address and communications
information set forth opposite its signature below;
(b) if to the Pledgee, at the following address of, and the
communications information for, the Pledgee:
▇▇▇▇▇▇ Guaranty Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Bank Creditor, either (x) to the respective
Administrative Agent, at the address of such Administrative Agent
specified in the respective Credit Agreement or (y) at such address and
communications information as such Bank Creditor shall have specified
in the Credit Agreement;
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(d) if to any Other Creditor at such address and
communications information as such Other Creditor shall have specified
in writing to the Pledgor and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
20. WAIVER; AMENDMENT. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing and duly signed by the Pledgor and the Pledgee
(with the written consent of the Required Secured Creditors); provided, that any
change, waiver, modification or variance affecting the rights and benefits of a
single Class (as defined below) of Secured Creditors (and not all Secured
Creditors in a like or similar manner) shall also require the written consent of
the Requisite Creditors (as defined below) of such affected Class. For the
purpose of this Agreement, the term "Class" shall mean each class of Secured
Creditors, i.e., whether (i) the SCIS Bank Creditors as holders of the SCIS
Credit Document Obligations, (ii) the Caterair Bank Creditors as holders of the
Caterair Credit Document Obligations or (iii) the Other Creditors as the holders
of the Other Obligations. For the purpose of this Agreement, the term "Requisite
Creditors" of any Class shall mean each of (i) with respect to the SCIS Credit
Document Obligations, the Required Banks under, and as defined in, the SCIS
Credit Agreement, (ii) with respect to the Caterair Credit Document Obligations,
the Required Banks under, and as defined in, the Caterair Credit Agreement and
(iii) with respect to the Other Obligations, the holders of a majority of all
obligations outstanding from time to time under the Interest Rate Protection
Agreements or Other Hedging Agreements.
21. MISCELLANEOUS. This Agreement shall be binding upon the
successors and assigns of the Pledgor (although the Pledgor may not assign its
rights and obligations hereunder except in accordance with the provisions of the
Secured Debt Agreements) and shall inure to the benefit of and be enforceable by
each of the parties hereto and its successors and assigns. THIS AGREEMENT SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS EXCEPT FOR THE CHOICE OF
LAW PROVISIONS OF THE NEW YORK UNIFORM COMMERCIAL CODE. EACH OF THE PARTIES TO
THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS DOCUMENT,
THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
The headings in this Agreement are for purposes of reference only and shall not
limit or define the meaning hereof. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
constitute one instrument. In the event that any
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provision of this Agreement shall prove to be invalid or unenforceable, such
provision shall be deemed to be severable from the other provisions of this
Agreement which shall remain binding on all parties hereto.
22. RECOURSE. This Agreement is made with full recourse to the
Pledgor (including, without limitation, with full recourse to all assets of the
Pledgor) and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgor contained herein, in the other Secured
Debt Agreements and otherwise in writing in connection herewith or therewith.
Notwithstanding anything to the contrary contained in this Agreement, the
Secured Creditors acknowledge and agree that they shall have no recourse against
the Pledgor under this Agreement in respect of the Class B Assets (but, in the
case of any Class B Assets constituting cash, only to the extent that such cash
has been segregated from the other assets (including other cash) of the
Pledgor).
* * *
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IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused
this Agreement to be executed by their duly elected officers duly authorized as
of the date first above written.
Address:
c/o Sky Chefs,Inc. ONEX FOOD SERVICES, INC.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as Pledgor
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By__________________________
Title:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ TRUST
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ COMPANY OF NEW YORK,
as Pledgee, Collateral Agent
By__________________________
Title:
262
ANNEX A
to
AMENDED AND RESTATED
OFSI PLEDGE AGREEMENT
LIST OF STOCK
===========================================================================================================
ISSUER/JURISDICTION OF PLEDGOR CLASS OF AUTHORIZED SHARES PERCENT- STOCK # OF
INCORPORATION STOCK SHARES ISSUED AGE TO BE CERT. SHARES
PLEDGED NUMBER PLEDGED
-----------------------------------------------------------------------------------------------------------
SC International OFSI Common-$.01 3,000 100 100% 1 100
Services, Inc. (Delaware) par
-----------------------------------------------------------------------------------------------------------
===========================================================================================================
263
ANNEX B
to
AMENDED AND RESTATED
OFSI PLEDGE AGREEMENT
LIST OF NOTES
==========================================================================================
DEBTOR DATE ISSUED PRINCIPAL AMOUNT
------------------------------------------------------------------------------------------
Caterair Holdings Corporation June 15, 1995 $4,245,103.00
------------------------------------------------------------------------------------------
Caterair Holdings Corporation March 15, 1995 $3,990,696.12
------------------------------------------------------------------------------------------
Caterair Holdings Corporation Dec. 15, 1994 $3,875,832.01
------------------------------------------------------------------------------------------
Caterair Holdings Corporation Sept. 15, 1994 $3,762,188.25
------------------------------------------------------------------------------------------
Caterair Holdings Corporation June 15, 1994 $3,612,182.34
------------------------------------------------------------------------------------------
Caterair Holdings Corporation March 15, 1994 $3,395,706.08
------------------------------------------------------------------------------------------
Caterair Holdings Corporation Dec. 15, 1993 $3,297,967.55
------------------------------------------------------------------------------------------
Caterair Holdings Corporation Sept. 15, 1993 $3,201,267.43
------------------------------------------------------------------------------------------
Caterair Holdings Corporation June 15, 1993 $3,073,626.55
------------------------------------------------------------------------------------------
Caterair Holdings Corporation March 15, 1993 $2,889,425.66
------------------------------------------------------------------------------------------
Caterair Holdings Corporation Dec. 15, 1992 $2,806,259.39
------------------------------------------------------------------------------------------
Caterair Holdings Corporation Sept. 15, 1992 $2,723,976.71
------------------------------------------------------------------------------------------
Caterair Holdings Corporation June 15, 1992 $2,615,366.35
------------------------------------------------------------------------------------------
Caterair Holdings Corporation March 15, 1992 $2,484,869.01
------------------------------------------------------------------------------------------
Caterair Holdings Corporation Dec. 15, 1991 $2,386,826.79
------------------------------------------------------------------------------------------
Caterair Holdings Corporation Sept. 15, 1991 $2,316,842.34
------------------------------------------------------------------------------------------
Caterair Holdings Corporation June 15, 1991 $2,224,465.24
------------------------------------------------------------------------------------------
Caterair Holdings Corporation March 15, 1991 $2,091,154.16
------------------------------------------------------------------------------------------
Caterair Holdings Corporation Dec. 15, 1990 $2,030,964.52
------------------------------------------------------------------------------------------
Caterair Holdings Corporation Sept. 15, 1990 $1,971,414.36
------------------------------------------------------------------------------------------
Caterair Holdings Corporation June 15, 1990 $1,892,810.16
------------------------------------------------------------------------------------------
Caterair Holdings Corporation March 15, 1990 $1,779,375.00
==========================================================================================
264
ANNEX C
to
OFSI
PLEDGE AGREEMENT
FORM OF CERTIFICATE
[Date]
▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Collateral Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ___________________
Ladies and Gentlemen:
Reference is hereby made to the Pledge Agreement, dated as of
September 29, 1995 and amended and restated as of August 28, 1997, between the
undersigned and you, as Collateral Agent (the "Pledge Agreement"). Pursuant to
Section 3.2 of the Pledge Agreement, the undersigned hereby pledges and delivers
to you under the Pledge Agreement [stock certificate number ____, representing
____ shares of the capital stock of ____, together with a duly executed and
undated stock power for such shares] [a promissory note issued by __________ in
favor of the undersigned, duly endorsed in blank].
Very truly yours,
[NAME OF PLEDGOR]
By_______________________
Title:
Accepted this ____ day
of ________, _____:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Collateral Agent
By________________________
Title:
265
EXHIBIT G-3
AMENDED AND RESTATED DESIGNATED ONEX SUB PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT (as amended, modified or
supplemented from time to time, this "Agreement"), dated as of January 1, 1997
and amended and restated as of August 28, 1997, made by ONEX OFSI HOLDINGS INC.,
an Ontario corporation (the "Pledgor"), in favor of ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as Collateral Agent (together with any successor pledgee,
the "Pledgee"), for the benefit of the Secured Creditors (as defined below).
Except as otherwise defined herein, capitalized terms used herein and defined in
the SCIS Credit Agreement (as defined below) or in the Caterair Credit Agreement
(as defined below), as the case may be, shall be used herein as therein defined.
WITNESSETH:
WHEREAS, Onex Food Services, Inc. ("OFSI"), SC International Services,
Inc. ("SCIS"), Caterair Holdings Corporation ("Caterair Holdings"), Caterair
International Corporation ("Caterair"), various lenders from time to time party
thereto (the "SCIS Banks"), Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities
Inc., as Co-Arrangers (the "SCIS Co-Arrangers"), Bankers Trust Company, as
Syndication Agent, The Bank of New York, as Co-Agent, and ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Administrative Agent, (together with any successor
administrative agent, the "SCIS Administrative Agent"), have entered into a
Credit Agreement, dated as of September 29, 1995 and amended and restated as of
August 28, 1997, providing for the making of loans to SCIS and the issuance of,
and participation in, letters of credit for the account of SCIS as contemplated
therein (as used herein, the term "SCIS Credit Agreement" means the Credit
Agreement described above in this paragraph, as the same may be amended,
modified, extended, renewed, replaced, restated or supplemented from time to
time, and including any agreement extending the maturity of, or restructuring
all or any portion of the Indebtedness under such agreement or any successor
agreements) (the SCIS Banks, the SCIS Co-Arrangers and the SCIS Administrative
Agent are herein called the "SCIS Bank Creditors");
WHEREAS, SCIS, Caterair, various lenders from time to time party
thereto (the "Caterair Banks", and together with the SCIS Banks, the "Banks"),
Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers (the
"Caterair Co-Arrangers", and together with the SCIS Co-Arrangers, the
"Co-Arrangers"), Bankers Trust Company,
266
EXHIBIT G-3
Page 2
as Syndication Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent (together with any successor administrative agent, the
"Caterair Administrative Agent", and together with the SCIS Administrative
Agent, the "Administrative Agents"), have entered into a Term Loan Agreement,
dated as of August 28, 1997, providing for the making of loans to SCIS and
Caterair as contemplated therein (as used herein, the term "Caterair Credit
Agreement" means the Term Loan Agreement described above in this paragraph, as
the same may be amended, modified, extended, renewed, replaced, restated or
supplemented from time to time, and including any agreement extending the
maturity of, or restructuring all or any portion of the Indebtedness under such
agreement or any successor agreements, and the Caterair Credit Agreement,
together with the SCIS Credit Agreement, are herein called the "Credit
Agreements") (the Caterair Banks, the Caterair Co-Arrangers and the Caterair
Administrative Agent are herein called the "Caterair Bank Creditors", and
together with the SCIS Bank Creditors, are herein called the "Bank Creditors");
WHEREAS, SCIS, Caterair and/or one or more of their respective
Subsidiaries may at any time and from time to time enter into one or more
Interest Rate Protection Agreements or Other Hedging Agreements with one or more
Banks or any affiliate thereof (each such Bank or affiliate, even if the
respective Bank subsequently ceases to be a Bank under the applicable Credit
Agreement for any reason, together with such Bank's or affiliate's successors
and assigns, if any, collectively, the "Other Creditors," and together with the
Bank Creditors and the Pledgee, the "Secured Creditors");
WHEREAS, the Pledgor is an Affiliate of OFSI, SCIS and Caterair;
WHEREAS, pursuant to the Designated Onex Sub Guaranty, the Pledgor has
guaranteed to the Secured Creditors the payment when due of all Guaranteed
Obligations as described therein;
WHEREAS, the Pledgor entered into a Designated Onex Sub Pledge
Agreement, dated as of January 1, 1997 (as amended, modified or supplemented to
the date hereof, the "Original Designated Onex Sub Pledge Agreement");
WHEREAS, it is a condition precedent to the making of loans and the
issuance of letters of credit under the Credit Agreements that the Pledgor shall
have executed and delivered a counterpart to this Agreement; and
WHEREAS, the Pledgor will obtain benefits from the incurrence of loans
and the issuance of letters of credit under the Credit Agreements and the
entering into of
267
EXHIBIT G-3
Page 3
Interest Rate Protection Agreements or Other Hedging Agreements with the Other
Creditors and, accordingly, the Pledgor desires to enter into this Agreement in
order to satisfy the conditions described in the preceding paragraph and to
amend and restate the Original Designated Onex Sub Pledge Agreement in its
entirety in the form of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Pledgor, the receipt and sufficiency of which are hereby
acknowledged, the Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by the Pledgor for
the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness of the Pledgor to the SCIS Bank Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection with
the Designated Onex Sub Guaranty and the due performance and compliance by
the Pledgor with all of the terms, conditions and agreements contained in
the Designated Onex Sub Guaranty and herein (all such obligations,
liabilities and indebtedness under this clause (i), except to the extent
consisting of obligations, liabilities or indebtedness with respect to
Interest Rate Protection Agreements or Other Hedging Agreements, being
herein collectively called the "SCIS Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness of the Pledgor to the Caterair Bank Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection with
the Designated Onex Sub Guaranty and the due performance and compliance by
the Pledgor with all of the terms, conditions and agreements contained in
the Designated Onex Sub Guaranty and herein (all such obligations,
liabilities and indebtedness under this clause (i), except to the extent
consisting of obligations, liabilities or indebtedness with respect to
Interest Rate Protection Agreements or Other Hedging Agreements, being
herein collectively called the "Caterair Credit Document Obligations");
(iii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness
268
EXHIBIT G-3
Page 4
owing by the Pledgor to the Other Creditors under, arising out of or with
respect to, the Designated Onex Sub Guaranty in respect of any Interest
Rate Protection Agreements or Other Hedging Agreements, whether such
Interest Rate Protection Agreement or Other Hedging Agreement is now in
existence or hereafter arising, and the due performance and compliance by
the Pledgor with all of the terms, conditions and agreements contained in
the Designated Onex Sub Guaranty and herein (all such obligations,
liabilities and indebtedness described in this clause (iii) being herein
collectively called the "Other Obligations");
(iv) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) or preserve its security interest
in the Collateral;
(v) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of the Pledgor
referred to in clauses (i) and (ii) above, upon the occurrence and during
the continuance of an Event of Default (such term, as used in this
Agreement, shall mean any Event of Default under, and as defined in, either
Credit Agreement, or any payment default under any Interest Rate Protection
Agreement or Other Hedging Agreement, and shall, in any event, include
without limitation, any payment default (after the expiration of any
applicable grace period) on any of the Obligations (as hereinafter
defined)) shall have occurred and be continuing, the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by the
Pledgee of its rights hereunder, together with reasonable attorneys' fees
and court costs; and
(vi) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of this
Agreement.
All such obligations, liabilities, indebtedness, sums and expenses set forth in
clauses (i) through (vi) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITION OF SECURITIES, ETC. As used herein, the term
"Securities" shall mean all of the issued and outstanding shares of capital
stock (including, but not limited to, warrants, options or other rights to
acquire shares thereof) at any time owned by the Pledgor of Caterair Holdings.
The Pledgor represents and warrants that, on the date hereof, (a) the Securities
held by the Pledgor consists of the number and type of
269
EXHIBIT G-3
Page 5
shares of the capital stock of Caterair Holdings as described in Annex A hereto,
(b) such Securities constitutes that percentage of the issued and outstanding
shares of capital stock of Caterair Holdings as is set forth in Annex A hereto
and (c) the Pledgor is the holder of record and sole beneficial owner of the
Securities and there exist no options or preemption rights in respect of any of
the Securities.
3. PLEDGE OF SECURITIES, ETC.
3.1. Pledge. To secure the Obligations of the Pledgor, the Pledgor
hereby (i) grants to the Pledgee a security interest in all of the Collateral
owned by the Pledgor, (ii) pledges and deposits as security with the Pledgee,
the Securities owned by the Pledgor on the date hereof, and delivers to the
Pledgee certificates or instruments, if any, therefor, accompanied by undated
stock powers duly executed in blank by the Pledgor (and accompanied by any
transfer tax stamps required in connection with the pledge of such Securities)
or such other instruments of transfer as are reasonably acceptable to the
Pledgee and (iii) assigns, transfers, hypothecates mortgages, charges and sets
over to the Pledgee all of the Pledgor's right, title and interest in and to
such Securities (and in and to the certificates or instruments evidencing such
Securities), to be held by the Pledgee upon the terms and conditions set forth
in this Agreement.
3.2. Subsequently Acquired Securities. If the Pledgor shall acquire (by
purchase, stock dividend or otherwise) any additional Securities at any time or
from time to time after the date hereof, the Pledgor will promptly thereafter
pledge and deposit such Securities (or certificates or instruments representing
such Securities) as security with the Pledgee and deliver to the Pledgee
certificates therefor or instruments thereof, accompanied by undated stock
powers duly executed in blank by the Pledgor (and accompanied by any transfer
tax stamps required in connection with the pledge of such Securities) or such
other instruments of transfer as are reasonably acceptable to the Pledgee, and
accompanied by a certificate executed by a principal executive officer of the
Pledgor in the form attached as Annex B hereto describing such Securities and
certifying that the same has been duly pledged with the Pledgee hereunder.
3.3. Uncertificated Securities. Notwithstanding anything to the
contrary contained in Sections 3.1 and 3.2 hereof, if any Securities (whether
now owned or hereafter acquired) are uncertificated securities, the Pledgor
shall promptly notify the Pledgee thereof, and shall promptly take all actions
required to perfect the security interest of the Pledgee under applicable law
(including, in any event, under Sections 8-313 and 8-321 of the New York Uniform
Commercial Code, if applicable). The Pledgor further agrees to take such actions
as the Pledgee deems reasonably necessary or desirable to effect the foregoing
and
270
EXHIBIT G-3
Page 6
to permit the Pledgee to exercise any of its rights and remedies hereunder, and
agrees to provide an opinion of counsel reasonably satisfactory to the Pledgee
with respect to any such pledge of uncertificated Securities promptly upon the
reasonable request of the Pledgee.
3.4. Definitions of Pledged Securities and Collateral. All Securities
at any time pledged or required to be pledged hereunder is hereinafter called
the "Pledged Securities;" and the Pledged Securities, together with all proceeds
thereof, including any securities and moneys received and at the time held by
the Pledgee hereunder, are herein called the "Collateral."
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall have
the right to appoint one or more sub-agents for the purpose of retaining
physical possession of the Pledged Securities, which may be held (in the
discretion of the Pledgee) in the name of the Pledgor, endorsed or assigned in
blank or in favor of the Pledgee or any nominee or nominees of the Pledgee or a
sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing an Event of Default and the Pledgee has
exercised any of its remedies under Section 7(d) hereof (or has given notice to
the Pledgor that it intends to exercise such remedies, although no such notice
shall be required and the Pledgee shall be entitled to exercise such remedies
immediately upon the occurrence of a bankruptcy or insolvency Event of Default
of the type described in either Credit Agreement in respect of the Pledgor), the
Pledgor shall be entitled to exercise any and all voting and other consensual
rights and powers pertaining to the Pledged Securities owned by it, and to give
consents, waivers or ratifications in respect thereof; provided that no vote
shall be cast or any consent, waiver or ratification given or any action taken
which would violate or be inconsistent with any of the terms of this Agreement,
the Credit Agreements, any other Credit Document or any Interest Rate Protection
Agreement or Other Hedging Agreement (collectively, the "Secured Debt
Agreements"), or which would have the effect of impairing the value of the
Collateral or any part thereof or the position or interests of the Pledgee in
the Collateral. All such rights of the Pledgor to vote and to give consents,
waivers and ratifications shall cease in case an Event of Default has occurred
and is continuing, and the Pledgee has exercised any of its remedies under
Section 7(d) hereof (or has given notice to the Pledgor that it intends to
exercise such remedies, although no such notice shall be required and the
Pledgee shall be entitled to exercise such remedies immediately upon the
occurrence of a bankruptcy or insolvency Event of Default of the type described
in either Credit Agreement in respect of the Pledgor).
271
EXHIBIT G-3
Page 7
6. DIVIDENDS AND OTHER DISTRIBUTIONS. (a) Unless and until there shall
have occurred and be continuing an Event of Default and the Pledgee has
exercised any of its remedies under Section 7(a) hereof (or has given notice to
the Pledgor that it intends to exercise such remedies, although no such notice
shall be required and the Pledgee shall be entitled to exercise such remedies
immediately upon the occurrence of a bankruptcy or insolvency Event of Default
of the type described in either Credit Agreement in respect of the Pledgor), all
dividends and other distributions (if any) payable in respect of the Pledged
Securities shall be paid to the Pledgor in accordance with (and to the extent
permitted by) the Credit Agreements.
(b) Nothing contained in this Section 6 shall limit or restrict in any
way the Pledgee's right to receive proceeds of the Collateral in any form in
accordance with Section 3 of this Agreement. All dividends, distributions or
other payments in respect of the Collateral which are received by the Pledgor
contrary to the provisions of this Section 6 or Section 7 hereof shall be held
in trust for the benefit of the Pledgee, shall be segregated from other property
or funds of the Pledgor and shall be forthwith delivered to the Pledgee as
Collateral in the same form as so received (with any necessary endorsement).
7. REMEDIES UPON EVENTS OF DEFAULT. If there shall have occurred and
be continuing an Event of Default, then and in every such case, the Pledgee
shall be entitled to exercise all of the rights, powers and remedies (whether
vested in it by this Agreement, any other Secured Debt Agreement or by law) for
the protection and enforcement of its rights in respect of the Collateral, and
the Pledgee shall be entitled to exercise all the rights and remedies of a
secured party under the Uniform Commercial Code and also shall be entitled,
without limitation, to exercise the following rights, which the Pledgor hereby
agrees to be commercially reasonable:
(a) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the Pledgor;
(b) to transfer all or any part of the Collateral into the Pledgee's
name or the name of its nominee or nominees;
(c) to vote all or any part of the Pledged Securities (whether or
not transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise act
with respect thereto as though it were the outright owner thereof (the
Pledgor hereby irrevocably constituting and appointing the Pledgee the
proxy and attorney-in-fact of the Pledgor, with full power of substitution
to do so); and
272
EXHIBIT G-3
Page 8
(d) at any time and from time to time to sell, assign and deliver,
or grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by the Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine; provided that at least 10 days' written
notice of the time and place of any such sale shall be given to the
Pledgor. The Pledgee shall not be obligated to make any such sale of
Collateral regardless of whether any such notice of sale has theretofore
been given. The Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to the
Collateral, whether before or after sale hereunder, and all rights, if any,
of marshalling the Collateral and any other security for the Obligations or
otherwise. At any such sale, unless prohibited by applicable law, the
Pledgee on behalf of the Secured Creditors may bid for and purchase all or
any part of the Collateral so sold free from any such right or equity of
redemption. Neither the Pledgee nor any other Secured Creditor shall be
liable for failure to collect or realize upon any or all of the Collateral
or for any delay in so doing nor shall any of them be under any obligation
to take any action whatsoever with regard thereto.
8. REMEDIES, ETC. Each and every right, power and remedy of the
Pledgee provided for in this Agreement or any other Secured Debt Agreement, or
now or hereafter existing at law or in equity or by statute shall be cumulative
and concurrent and shall be in addition to every other such right, power or
remedy. The exercise or beginning of the exercise by the Pledgee or any other
Secured Creditor of any one or more of the rights, powers or remedies provided
for in this Agreement or any other Secured Debt Agreement or now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by the Pledgee or any other Secured Creditor of
all such other rights, powers or remedies, and no failure or delay on the part
of the Pledgee or any other Secured Creditor to exercise any such right, power
or remedy shall operate as a waiver thereof. No notice to or demand on the
Pledgor in any case shall entitle it to any other or further notice or demand in
similar or other circumstances or constitute a waiver of any of the rights of
the Pledgee or any other Secured Creditor to any other or further action in any
circumstances without notice or demand. The Secured Creditors agree that this
Agreement may be enforced only by the action of the Pledgee, in each case acting
upon the instructions of the Required Secured Creditors (as defined in the
Security Agreement) and that no other Secured Creditor shall have any right
individually
273
EXHIBIT G-3
Page 9
to seek to enforce or to enforce this Agreement or to realize upon the security
to be granted hereby, it being understood and agreed that such rights and
remedies may be exercised by the Pledgee for the benefit of the Secured
Creditors upon the terms of this Agreement.
9. APPLICATION OF PROCEEDS. All monies collected by the Pledgee upon
any sale or other disposition of the Collateral, together with all other moneys
received by the Pledgee hereunder, shall be applied to the payment of the
Obligations in the manner provided in Section 7.4 of the Security Agreement.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. (a) The Pledgor agrees to indemnify and hold harmless
the Pledgee in such capacity and each other Secured Creditor and their
respective successors, assigns, employees, agents and servants (individually an
"Indemnitee," and collectively, the "Indemnitees") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all reasonable costs, expenses or
disbursements (including reasonable attorneys' fees and expenses) (for the
purposes of this Section 11 the foregoing are collectively called "expenses") of
whatever kind and nature imposed on, asserted against or incurred by any of the
Indemnitees in any way relating to or arising out of this Agreement or the
enforcement of any of the terms of, or the preservation of any rights hereunder,
or in any way relating to or arising out of the ownership, control, acceptance,
possession, condition, sale or other disposition, or use of the Collateral,
provided that no Indemnitee shall be indemnified pursuant to this Section 11(a)
for losses, damages or liabilities to the extent caused by the gross negligence
or wilful misconduct of such Indemnitee. The Pledgor agrees that upon written
notice by any Indemnitee of the assertion of such a liability, obligation,
damage, injury, penalty, claim, demand, action, suit or judgment, the Pledgor
shall to the extent requested to do so assume full responsibility for the
defense thereof.
(b) Without limiting the application of Section 11(a) hereof, the
Pledgor agrees to pay or reimburse the Pledgee for any and all fees, costs and
expenses, including reasonable attorneys' fees, of whatever kind or nature
incurred in connection with the creation, preservation or protection of the
Pledgee's Liens on, and security interest in, the
274
EXHIBIT G-3
Page 10
Collateral, including, without limitation, all fees and taxes in connection with
the recording or filing of instruments and documents in public offices, payment
or discharge of any taxes or Liens upon or in respect of the Collateral, and all
other reasonable fees, costs and expenses in connection with protecting,
maintaining or preserving the Collateral and the Pledgee's interest therein,
whether through judicial proceedings or otherwise, or in defending or
prosecuting any actions, suits or proceedings arising out of or relating to the
Collateral.
(c) If and to the extent that the obligations of the Pledgor under
this Section 11 are unenforceable for any reason, the Pledgor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) The Pledgor agrees that
it will join with the Pledgee in executing and, at the Pledgor's own expense,
file and refile under the Uniform Commercial Code of any jurisdiction or other
applicable law such financing statements, continuation statements and other
documents in such offices as the Pledgee may deem reasonably necessary and
wherever required by law in order to perfect and preserve the Pledgee's security
interest in the Collateral and hereby authorizes the Pledgee to file financing
statements and amendments thereto relative to all or any part of the Collateral
without the signature of the Pledgor where permitted by law, and agrees to do
such further acts and things and to execute and deliver to the Pledgee such
additional conveyances, assignments, agreements and instruments as the Pledgee
may reasonably require or deem necessary to carry into effect the purposes of
this Agreement or to further assure and confirm unto the Pledgee its rights,
powers and remedies hereunder.
(b) The Pledgor hereby appoints the Pledgee the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, from time to time after the occurrence
and during the continuance of an Event of Default, in the Pledgee's reasonable
discretion to take any action and to execute any instrument which the Pledgee
may deem reasonably necessary or advisable to accomplish the purposes of this
Agreement.
13. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance with this
Agreement all items of the Collateral at any time received under this Agreement.
It is expressly understood and agreed by each Secured Creditor that by accepting
the benefits of this Agreement each such Secured Creditor acknowledges and
agrees that the obligations of the Pledgee as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth
275
EXHIBIT G-3
Page 11
in this Agreement. The Pledgee shall act hereunder on the terms and conditions
set forth herein and in Article X of the Security Agreement.
14. TRANSFER BY THE PLEDGOR. The Pledgor will not sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except pursuant to the
terms of this Agreement).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR. The
Pledgor represents, warrants and covenants that (i) it is the legal, record and
beneficial owner of, and has good and marketable title to, all Pledged
Securities pledged by it hereunder, subject to no Lien (except the Lien created
by this Agreement and Liens of the type described in Sections 9.01(i), (v) and
(xii) of the SCIS Credit Agreement); (ii) it has the corporate power and
authority to pledge all the Pledged Securities pledged by it pursuant to this
Agreement; (iii) this Agreement has been duly authorized, executed and delivered
by the Pledgor and constitutes a legal, valid and binding obligation of the
Pledgor enforceable in accordance with its terms, except to the extent that the
enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law); (iv) no consent of any other party (including, without
limitation, any stockholder or creditor of the Pledgor or any of its
Subsidiaries) and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration with,
any governmental authority is required to be obtained by the Pledgor for the
execution, delivery or performance of this Agreement by the Pledgor, the
validity or enforceability of this Agreement and the perfection or
enforceability of the Pledgee's security interest in the Collateral (other than,
in respect of the proceeds of the Pledged Securities, the filing of Form UCC-1
financing statements or the appropriate equivalent (which filings have been
made)) or except for compliance with or as may be required by applicable
securities laws, the exercise by the Pledgee of any of its rights or remedies
provided herein; (v) the execution, delivery and performance of this Agreement
by the Pledgor, and the compliance by it with the terms and provisions hereof,
will not violate any provision of any applicable law or regulation or of any
applicable order, judgment, writ, injunction or decree of any court, arbitrator
or governmental authority, domestic or foreign, applicable to the Pledgor, or of
the certificate of incorporation or by-laws (or equivalent organizational
documents) of the Pledgor or of any securities issued by the Pledgor or any of
its Subsidiaries, or of any mortgage, indenture, lease, deed of trust, loan
agreement, credit agreement or any other material contract, agreement or
instrument or undertaking to which the Pledgor or any of its Subsidiaries is a
party or which purports to be binding upon the Pledgor or any of its Subsi-
276
EXHIBIT G-3
Page 12
diaries or upon any of their respective assets and will not result in the
creation or imposition of (or the obligation to create or impose) any lien or
encumbrance on any of the Collateral of the Pledgor or any of its Subsidiaries
except as contemplated by this Agreement; (vi) all the shares of Securities have
been duly and validly issued, are fully paid and non-assessable and are subject
to no options to purchase or similar rights; and (vii) the pledge, assignment
and delivery to the Pledgee of the Securities (other than uncertificated
securities) pursuant to this Agreement creates a valid and perfected first
priority Lien in the Securities, and the proceeds thereof, subject to no other
Lien or to any agreement purporting to grant to any third party a Lien on the
property or assets of the Pledgor which would include the Securities. The
Pledgor covenants and agrees that it will defend the Pledgee's right, title and
security interest in and to the Securities and the proceeds thereof against the
claims and demands of all persons whomsoever; and the Pledgor covenants and
agrees that it will have like title to and right to pledge any other property at
any time hereafter pledged to the Pledgee as Collateral hereunder and will
likewise defend the right thereto and security interest therein of the Pledgee
and the Secured Creditors.
16. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of the Pledgor
under this Agreement shall be absolute and unconditional and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (i) any renewal, extension, amendment
or modification of or addition or supplement to or deletion from any Secured
Debt Agreement or any other instrument or agreement referred to therein, or any
assignment or transfer of any thereof; (ii) any waiver, consent, extension,
indulgence or other action or inaction under or in respect of any such Secured
Debt Agreement or other agreement or instrument including, without limitation,
this Agreement; (iii) any furnishing of any additional security to the Pledgee
or its assignee or any acceptance thereof or any release of any security by the
Pledgee or its assignee; (iv) any limitation on any party's liability or
obligations under any such instrument or agreement or any invalidity or
unenforceability, in whole or in part, of any such instrument or agreement or
any term thereof; or (v) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to the Pledgor or any Subsidiary of the Pledgor, or any action taken
with respect to this Agreement by any trustee or receiver, or by any court, in
any such proceeding, whether or not the Pledgor shall have notice or knowledge
of any of the foregoing (it being understood that the enforcement hereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar rights generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law)).
277
EXHIBIT G-3
Page 13
17. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing an Event of Default then, and in every such case, upon receipt by the
Pledgor from the Pledgee of a written request or requests that the Pledgor cause
any registration, qualification or compliance under any Federal, state or other
applicable securities law or laws to be effected with respect to all or any part
of the Pledged Securities, the Pledgor as soon as practicable and at its expense
will cause such registration to be effected (and be kept effective) and will
cause such qualification and compliance to be declared effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Pledged Securities, including, without limitation,
registration under the Securities Act of 1933, as then in effect (or any similar
statute then in effect), appropriate qualifications under applicable blue sky,
state or other applicable securities laws and appropriate compliance with any
other government requirements; provided that the Pledgee shall furnish to the
Pledgor such information regarding the Pledgee as the Pledgor may reasonably
request in writing and as shall be required in connection with any such
registration, qualification or compliance. The Pledgor will cause the Pledgee to
be kept advised in writing as to the progress of each such registration,
qualification or compliance and as to the completion thereof, will furnish to
the Pledgee such number of prospectuses, offering circulars or other documents
incident thereto as the Pledgee from time to time may reasonably request, and
will indemnify the Pledgee, each other Secured Creditor and all others
participating in the distribution of such Pledged Securities against all claims,
losses, damages and liabilities caused by any untrue statement (or alleged
untrue statement) of a material fact contained therein (or in any related
registration statement, notification or the like) or by any omission (or alleged
omission) to state therein (or in any related registration statement,
notification or the like) a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same may have been caused by an untrue statement or omission based upon
information furnished in writing to the Pledgor by the Pledgee or such other
Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Pledged Securities pursuant to Section 7
hereof, and such Pledged Securities or the part thereof to be sold shall not,
for any reason whatsoever, be effectively registered under the Securities Act of
1933, as then in effect, the Pledgee may, in its sole and absolute discretion,
sell such Pledged Securities or part thereof by private sale in such manner and
under such circumstances as the Pledgee may deem necessary or advisable in order
that such sale may legally be effected without such registration. Without
limiting the generality of the foregoing, in any such event the Pledgee, in its
sole and absolute discretion (i) may proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering
such Pledged Securities or part thereof shall have been filed under such
Securities Act, (ii) may approach and negotiate with a single
278
EXHIBIT G-3
Page 14
possible purchaser to effect such sale, and (iii) may restrict such sale to a
purchaser who will represent and agree that such purchaser is purchasing for its
own account, for investment, and not with a view to the distribution or sale of
such Pledged Securities or part thereof. In the event of any such sale, the
Pledgee shall incur no responsibility or liability for selling all or any part
of the Pledged Securities at a price which the Pledgee, in its sole and absolute
discretion, in good ▇▇▇▇▇ ▇▇▇▇▇ reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration as aforesaid.
18. TERMINATION; RELEASE. (a) On the Termination Date (as defined in
the Security Agreement), but only after giving effect to the repayments to be
made on such date, this Agreement and the security interest created hereby shall
terminate (provided that all indemnities set forth herein including, without
limitation, in Section 11 hereof shall survive any such termination), and the
Pledgee, at the request and expense of the Pledgor, will execute and deliver to
the Pledgor such proper instrument or instruments acknowledging the satisfaction
and termination of this Agreement, and will duly assign, release, transfer and
deliver to the Pledgor (without recourse and without any representation or
warranty) all of the Collateral as has not theretofore been sold or otherwise
applied or released pursuant to this Agreement, together with any moneys at the
time held by the Pledgee or any of its sub-agents hereunder.
(b) In the event that all or any part of the Collateral is sold,
conveyed or disposed of in connection with any form of asset disposition
permitted by the Credit Agreements or otherwise released, in whole or in part,
at the direction of the Required Secured Creditors and the proceeds of such
asset disposition are applied in accordance with, and to the extent required by,
the provisions of the Credit Agreements, the Pledgee, at the request and expense
of the Pledgor, will duly assign, release, transfer and deliver to the Pledgor
(without recourse and without any representation or warranty) such of the
Collateral (and releases therefor) as is then being (or has been) so sold or
released and has not theretofore been released pursuant to this Agreement.
(c) At any time that the Pledgor desires that the Pledgee assign,
release, transfer and deliver Collateral as provided in Section 18(a) or (b)
hereof, it shall deliver to the Pledgee a certificate signed by a principal
executive officer of the Pledgor stating that the release of the respective
Collateral is in accordance with Section 18(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any Secured
Creditor as the result of any release of Collateral by it in accordance with
this Section 18.
279
EXHIBIT G-3
Page 15
19. NOTICES ETC. All such notices and communications hereunder shall be
sent or delivered by mail, telegraph, telex, telecopy, cable or overnight
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when delivered to the telegraph company, cable company or overnight
courier, as the case may be, or sent by telex or telecopier and when mailed
shall be effective three Business Days following deposit in the mail with proper
postage, except that notices and communications to the Pledgee shall not be
effective until received by the Pledgee. All notices and other communications
shall be in writing and addressed as follows:
(a) if to the Pledgor, to the address and communications information
set forth opposite its signature below;
(b) if to the Pledgee, at the following address of, and the
communications information for, the Pledgee:
▇▇▇▇▇▇ Guaranty Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Bank Creditor, either (x) to the respective
Administrative Agent, at the address of such Administrative Agent specified
in the respective Credit Agreement or (y) at such address and
communications information as such Bank Creditor shall have specified in
the respective Credit Agreement;
(d) if to any Other Creditor at such address and communications
information as such Other Creditor shall have specified in writing to the
Pledgor and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
20. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing and duly signed by the Pledgor and the Pledgee (with the
written consent of the Required Secured Creditors); provided, that any change,
waiver, modification or variance
280
EXHIBIT G-3
Page 16
affecting the rights and benefits of a single Class (as defined below) of
Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Creditors (as defined
below) of such affected Class. For the purpose of this Agreement, the term
"Class" shall mean each class of Secured Creditors, i.e., whether (i) the SCIS
Bank Creditors as holders of the SCIS Credit Document Obligations, (ii) the
Caterair Bank Creditors as holders of the Caterair Credit Document Obligations
or (iii) the Other Creditors as the holders of the Other Obligations. For the
purpose of this Agreement, the term "Requisite Creditors" of any Class shall
mean each of (i) with respect to the Credit Document Obligations, the Required
Banks under, and as defined in, the SCIS Credit Agreement, (ii) with respect to
the Caterair Credit Document Obligations, the Required Banks under, and as
defined in, the Caterair Credit Agreement and (iii) with respect to the Other
Obligations, the holders of a majority of all obligations outstanding from time
to time under the Interest Rate Protection Agreements or Other Hedging
Agreements.
21. MISCELLANEOUS. This Agreement shall be binding upon the successors
and assigns of the Pledgor (although the Pledgor may not assign its rights and
obligations hereunder except in accordance with the provisions of the Secured
Debt Agreements) and shall inure to the benefit of and be enforceable by each of
the parties hereto and its successors and assigns. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS EXCEPT FOR THE CHOICE OF LAW
PROVISIONS OF THE NEW YORK UNIFORM COMMERCIAL CODE. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS DOCUMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. The
headings in this Agreement are for purposes of reference only and shall not
limit or define the meaning hereof. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
constitute one instrument. In the event that any provision of this Agreement
shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain binding
on all parties hereto.
22. RECOURSE. Notwithstanding the foregoing or anything else contained
in this Agreement, the Secured Creditors, by their acceptance of the benefits of
this Agreement, expressly acknowledge and agree that recourse against the
Pledgor in respect
281
EXHIBIT G-3
Page 17
of the Obligations shall be limited to the Collateral and the Pledgor's right,
title and interest therein.
* * *
282
EXHIBIT G-3
Page 18
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
Address:
c/o Onex Corporation ONEX OFSI HOLDINGS INC.,
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ as Pledgor
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: By________________________
Telecopier No.: Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
as Pledgee, Collateral Agent
By________________________
Name:
Title:
283
ANNEX A
to
DESIGNATED ONEX SUB
PLEDGE AGREEMENT
LIST OF STOCK
==================================================================================================
ISSUER/JURISDICTION OF CLASS OF AUTHORIZED SHARES PERCENT- STOCK # OF
INCORPORATION STOCK SHARES ISSUED AGE TO BE CERT. SHARES
PLEDGED NUMBER PLEDGED
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Caterair Holdings Class A 1,000,000 1,000,000 100% A-1/A 250,000
Corporation Common
(Delaware) $.01 par
==================================================================================================
284
ANNEX B
to
AMENDED AND RESTATED
DESIGNATED ONEX SUB
PLEDGE AGREEMENT
FORM OF CERTIFICATE
[Date]
▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Collateral Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ___________________
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Designated Onex
Sub Pledge Agreement, dated as of January 1, 1997 and amended and restated as of
August 28, 1997 between the undersigned and you, as Collateral Agent (the
"Pledge Agreement"). Pursuant to Section 3.2 of the Pledge Agreement, the
undersigned hereby pledges and delivers to you under the Pledge Agreement stock
certificate number ____, representing ____ shares of the capital stock of
Caterair Holdings, together with a duly executed and undated stock power for
such shares.
Very truly yours,
ONEX OFSI HOLDINGS INC.,
as Pledgor
By_______________________
Title:
Accepted this ____ day
of ________, _____:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Collateral Agent
By________________________
Title:
285
EXHIBIT H
[Conformed as Executed]
================================================================================
AMENDED AND RESTATED
SECURITY AGREEMENT
among
SC INTERNATIONAL SERVICES, INC.,
CATERAIR INTERNATIONAL CORPORATION,
VARIOUS SUBSIDIARIES OF
SC INTERNATIONAL SERVICES, INC.
and
CATERAIR INTERNATIONAL CORPORATION,
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Collateral Agent
================================================================================
Dated as of September 29, 1995
and Amended and Restated as of
August 28, 1997
================================================================================
286
TABLE OF CONTENTS
Page
----
ARTICLE I SECURITY INTERESTS........................................ 3
1.1. Grant of Security Interests.................................... 3
1.2. Power of Attorney.............................................. 3
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS................................................. 4
2.1. Necessary Filings.............................................. 4
2.2. No Liens....................................................... 4
2.3. Other Financing Statements..................................... 4
2.4. Chief Executive Office; Records................................ 5
2.5. Location of Inventory and Equipment............................ 5
2.6. Recourse....................................................... 6
2.7. Trade Names; Change of Name.................................... 6
ARTICLE III SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS................. 7
3.1. Maintenance of Records......................................... 7
3.2. Direction to Account Debtors; Contracting Parties; etc......... 7
3.3. Rights in the Receivables and Contracts........................ 8
3.4. Delivery of Instruments........................................ 8
3.5. Assignors Remain Liable Under Receivables...................... 8
3.6. Assignors Remain Liable Under Contracts........................ 8
3.7. Further Actions................................................ 9
ARTICLE IV SPECIAL PROVISIONS CONCERNING TRADEMARKS.................. 9
4.1. Additional Representations and Warranties...................... 9
4.2. Licenses and Assignments....................................... 10
4.3. Infringements.................................................. 10
4.4. Preservation of Marks.......................................... 10
4.5. Maintenance of Registration.................................... 10
4.6. Future Registered Marks........................................ 10
4.7. Remedies....................................................... 10
(i)
287
Page
----
ARTICLE V SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS..................... 11
5.1. Additional Representations and Warranties...................... 11
5.2. Licenses and Assignments....................................... 11
5.3. Infringements.................................................. 12
5.4. Maintenance of Patents or Copyrights........................... 12
5.5. Prosecution of Patent or Copyright Application................. 12
5.6. Other Patents or Copyrights.................................... 12
5.7. Remedies....................................................... 12
ARTICLE VI PROVISIONS CONCERNING ALL COLLATERAL...................... 13
6.1. Protection of Collateral Agent's Security...................... 13
6.2. Warehouse Receipts Non-negotiable.............................. 13
6.3. Further Actions; Louisiana Matters............................. 13
6.4. Financing Statements........................................... 14
ARTICLE VII REMEDIES UPON OCCURRENCE OF EVENT OF
DEFAULT................................................... 14
7.1. Remedies; Obtaining the Collateral Upon Default................ 14
7.2. Remedies; Disposition of the Collateral........................ 16
7.3. Waiver of Claims............................................... 17
7.4. Application of Proceeds........................................ 17
7.5. Remedies Cumulative............................................ 20
7.6. Discontinuance of Proceedings.................................. 20
ARTICLE VIII INDEMNITY................................................. 21
8.1. Indemnity...................................................... 21
8.2. Indemnity Obligations Secured by Collateral; Survival.......... 22
ARTICLE IX DEFINITIONS............................................... 22
ARTICLE X THE COLLATERAL AGENT...................................... 29
10.1. Appointment................................................... 29
10.2. Nature of Duties.............................................. 30
10.3. Lack of Reliance on the Collateral Agent...................... 31
10.4. Certain Rights of the Collateral Agent........................ 31
10.5. Reliance...................................................... 32
10.6. Indemnification............................................... 32
10.7. The Collateral Agent in its Individual Capacity............... 33
10.8. Holders....................................................... 33
(ii)
288
Page
----
10.9. Resignation by the Collateral Agent........................... 33
10.10. Fees of Collateral Agent..................................... 34
ARTICLE XI MISCELLANEOUS............................................. 34
11.1. Notices....................................................... 34
11.2. Waiver; Amendment............................................. 35
11.3. Obligations Absolute.......................................... 35
11.4. Successors and Assigns........................................ 36
11.5. Headings Descriptive.......................................... 36
11.6. Governing Law................................................. 36
11.7. Assignor's Duties............................................. 37
11.8. Termination; Release.......................................... 37
11.9. Counterparts.................................................. 38
11.10. Severability................................................. 38
11.11. Additional Assignors......................................... 38
ANNEX A SCHEDULE OF CHIEF EXECUTIVE OFFICES AND
OTHER RECORD LOCATIONS
ANNEX B SCHEDULE OF INVENTORY AND EQUIPMENT LOCATIONS
ANNEX C LIST OF TRADE AND FICTITIOUS NAMES
ANNEX D LIST OF MARKS
ANNEX E LIST OF PATENTS AND APPLICATIONS
ANNEX F LIST OF COPYRIGHTS AND APPLICATIONS
ANNEX G ASSIGNMENT OF SECURITY INTEREST IN
UNITED STATES TRADEMARKS AND PATENTS
SCHEDULE A
SCHEDULE B
ANNEX H ASSIGNMENT OF SECURITY INTEREST IN
UNITED STATES COPYRIGHTS
SCHEDULE A
ANNEX I LOUISIANA ADDENDUM TO SECURITY AGREEMENT
(iii)
289
EXHIBIT H
[Conformed as Executed]
AMENDED AND RESTATED SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AGREEMENT, dated as of September 29,
1995 and amended and restated as of August 28, 1997, among each of the
undersigned assignors (each an "Assignor" and, together with any other entity
that becomes a party hereto pursuant to Section 11.11 hereof, the "Assignors")
and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Collateral Agent (together
with any successor collateral agent, the "Collateral Agent"), for the benefit of
the Secured Creditors (as defined below). Except as otherwise defined herein,
capitalized terms used herein and defined in the SCIS Credit Agreement (as
defined below) or in the Caterair Credit Agreement (as defined below), as the
case may be, shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, Onex Food Services, Inc. ("OFSI"), SC International
Services, Inc. ("SCIS"), Caterair Holdings Corporation ("Caterair Holdings"),
Caterair International Corporation ("Caterair"), various lenders from time to
time party thereto (the "SCIS Banks"), Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇
Securities Inc., as Co-Arrangers (the "SCIS Co-Arrangers"), Bankers Trust
Company, as Syndication Agent, The Bank of New York, as Co-Agent and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Administrative Agent (together with any
successor administrative agent, the "SCIS Administrative Agent"), have entered
into a Credit Agreement, dated as of September 29, 1995 and amended and restated
as of August 28, 1997, providing for the making of loans to SCIS and the
issuance of, and participation in, letters of credit for the account of SCIS as
contemplated therein (as used herein, the term "SCIS Credit Agreement" means the
Credit Agreement described above in this paragraph as the same may be amended,
modified, extended, renewed, replaced, restated or supplemented from time to
time, and including any agreement extending the maturity of, or restructuring
all or any portion of the Indebtedness under such agreement or any successor
agreement) (the SCIS Banks, the SCIS Co-Arrangers and the SCIS Administrative
Agent are herein called the "SCIS Bank Creditors");
WHEREAS, SCIS, Caterair, various lenders from time to time party
thereto (the "Caterair Banks", and together with the SCIS Banks, the "Banks"),
Bankers Trust Company and ▇. ▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers (the
"Caterair Co-Arrangers", and together with the SCIS Co-Arrangers, the
"Co-Arrangers"), Bankers Trust Company,
290
EXHIBIT H
Page 2
as Syndication Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent (together with any successor administrative agent, the
"Caterair Administrative Agent, and together with the SCIS Administrative Agent,
the "Administrative Agents"), have entered into a Term Loan Agreement, dated as
of August 28, 1997, providing for the making of loans to SCIS and Caterair as
contemplated therein (as used herein, the term "Caterair Credit Agreement" means
the Term Loan Agreement described above in this paragraph, as the same may be
amended, modified, extended, renewed, replaced, restated or supplemented from
time to time, and including any agreement extending the maturity of, or
restructuring all or any portion of the Indebtedness under such agreement or any
successor agreements, and the Caterair Credit Agreement, together with the SCIS
Credit Agreement, are herein called the "Credit Agreements") (the Caterair
Banks, the Caterair Co-Arrangers and the Caterair Administrative Agent are
herein called the "Caterair Bank Creditors", and together with the SCIS Bank
Creditors, are herein called the "Bank Creditors");
WHEREAS, SCIS, Caterair and/or one or more of their respective
subsidiaries may at any time and from time to time enter into one or more
Interest Rate Protection Agreements or Other Hedging Agreements with one or more
Banks or any affiliate thereof (each such Bank or affiliate, even if the
respective Bank subsequently ceases to be a Bank under the applicable Credit
Agreement for any reason, together with such Bank's or affiliate's successors
and assigns, if any, collectively, the "Other Creditors," and together with the
Bank Creditors and the Collateral Agent, the "Secured Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor (including Caterair) has jointly and severally guaranteed to the
Secured Creditors the payment when due of all Guaranteed Obligations as
described therein;
WHEREAS, the Assignors entered into a Security Agreement, dated as
of September 29, 1995 (as amended, modified or supplemented to the date hereof,
the "Original Security Agreement");
WHEREAS, it is a condition precedent to the making of loans and the
issuance of letters of credit under the Credit Agreements that each Assignor
shall have executed and delivered this Agreement; and
WHEREAS, each Assignor will obtain benefits from the incurrence of
loans and the issuance of letters of credit under the Credit Agreements and the
entering into of Interest Rate Protection Agreements or Other Hedging Agreements
with the Other Creditors and, accordingly, each Assignor desires to execute this
Agreement to satisfy the conditions
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described in the preceding paragraph and to amend and restate the Original
Security Agreement in its entirety in the form of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Assignor, the receipt and sufficiency of which are hereby
acknowledged, each Assignor hereby makes the following representations and
warranties to the Collateral Agent for the benefit of the Secured Creditors and
hereby covenants and agrees with the Collateral Agent for the benefit of the
Secured Creditors as follows:
ARTICLE I
SECURITY INTERESTS
1.1. Grant of Security Interests. (a) As security for the prompt and
complete payment and performance when due of all of the Obligations of such
Assignor, each Assignor does hereby assign and transfer unto the Collateral
Agent, and does hereby pledge and grant to the Collateral Agent for the benefit
of the Secured Creditors, a continuing security interest in, all of the right,
title and interest of such Assignor in, to and under all of the following,
whether now existing or hereafter from time to time acquired: (i) each and every
Receivable, (ii) all Contracts, together with all Contract Rights arising
thereunder, (iii) all Inventory, (iv) all Equipment, (v) all Marks, together
with the registrations and right to all renewals thereof, and the goodwill of
the business of such Assignor symbolized by the Marks, (vi) all Patents and
Copyrights, and all reissues, renewals or extensions thereof, (vii) all computer
programs of such Assignor and all intellectual property rights therein and all
other proprietary information of such Assignor, including, but not limited to,
trade secrets, (viii) all other Goods, General Intangibles, Chattel Paper,
Documents, Instruments and other assets of such Assignor, (ix) the Cash
Collateral Account and all monies, securities and Instruments deposited or
required to be deposited in such Cash Collateral Account and (x) all Proceeds
and products of any and all of the foregoing (all of the above, collectively,
the "Collateral"). Notwithstanding anything to the contrary contained in this
Agreement, the term Collateral shall not include any American Supplies as
defined in the American Airlines Catering Agreements with Sky Chefs and Caterair
(as in effect on the date hereof).
(b) The security interest of the Collateral Agent under this
Agreement extends to all Collateral of the kind which is the subject of this
Agreement which any Assignor may acquire at any time during the continuation of
this Agreement.
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1.2. Power of Attorney. Each Assignor hereby constitutes and
appoints the Collateral Agent its true and lawful attorney, irrevocably, with
full power after the occurrence of and during the continuance of an Event of
Default (in the name of such Assignor or otherwise) to act, require, demand,
receive, compound and give acquittance for any and all monies and claims for
monies due or to become due to such Assignor under or arising out of the
Collateral, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute any proceedings
which the Collateral Agent may deem to be necessary or advisable to protect the
interests of the Secured Creditors, which appointment as attorney is coupled
with an interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and delivery
of this Agreement, as follows:
2.1. Necessary Filings. All filings, registrations and recordings
necessary or appropriate to create, preserve and perfect the security interest
granted by such Assignor to the Collateral Agent hereby in respect of the
Collateral have been accomplished and the security interest granted to the
Collateral Agent pursuant to this Agreement in and to the Collateral creates a
perfected security interest therein prior to the rights of all other Persons
therein and subject to no other Liens (other than Permitted Liens) and is
entitled to all the rights, priorities and benefits afforded by the Uniform
Commercial Code or other relevant law as enacted in any relevant jurisdiction to
perfected security interests, in each case to the extent that the Collateral
consists of the type of property in which a security interest may be perfected
by filing a financing statement under the Uniform Commercial Code as enacted in
any relevant jurisdiction or in the United States Patent and Trademark Office or
the United States Copyright Office.
2.2. No Liens. Such Assignor is, and as to Collateral acquired by it
from time to time after the date hereof such Assignor will be, the owner of all
Collateral free from any Lien, security interest, encumbrance or other right,
title or interest of any other Person (other than Permitted Liens), and such
Assignor shall defend the Collateral to the extent of its rights therein against
all claims and demands of all Persons at any time claiming the same or any
interest therein adverse to the Collateral Agent.
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2.3. Other Financing Statements. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) on file or of record in any relevant jurisdiction
covering or purporting to cover any interest of any kind in the Collateral
(other than filings in respect of Permitted Liens), and so long as the
Termination Date has not occurred, such Assignor will not execute or authorize
to be filed in any public office any financing statement (or similar statement
or instrument of registration under the law of any jurisdiction) or statements
relating to the Collateral, except financing statements filed or to be filed in
respect of and covering the security interests granted hereby by such Assignor
or in respect of Permitted Liens.
2.4. Chief Executive Office; Records. The chief executive office of
such Assignor is located, as of the date hereof, at the address indicated on
Annex A hereto for such Assignor. Such Assignor will not move its chief
executive office except to such new location as such Assignor may establish in
accordance with the last sentence of this Section 2.4. The originals of all
documents evidencing all Receivables and Contract Rights and Trade Secret Rights
of such Assignor and the only original books of account and records of such
Assignor relating thereto are, and will continue to be, kept at such chief
executive office, at one or more of the other record locations set forth on
Annex A hereto or at such new locations as such Assignor may establish in
accordance with the last sentence of this Section 2.4. All Receivables and
Contract Rights of such Assignor are, and will continue to be, maintained at,
and controlled and directed (including, without limitation, for general
accounting purposes) from, the office locations described above or such new
location established in accordance with the last sentence of this Section 2.4.
No Assignor shall establish new locations for such offices until (i) such
Assignor shall have given to the Collateral Agent not less than 30 days' prior
written notice of its intention to do so, clearly describing such new location
and providing such other information in connection therewith as the Collateral
Agent may reasonably request, (ii) with respect to such new location, such
Assignor shall have taken all action, reasonably satisfactory to the Collateral
Agent, to maintain the security interest of the Collateral Agent in the
Collateral intended to be granted hereby at all times fully perfected and in
full force and effect, (iii) at the reasonable request of the Collateral Agent,
such Assignor shall have furnished an opinion of counsel reasonably acceptable
to the Collateral Agent to the effect that all financing or continuation
statements and amendments or supplements thereto have been filed in the
appropriate filing office or offices, and all other actions (including, without
limitation, the payment of all filing fees and taxes, if any, payable in
connection with such filings) have been taken in order to perfect (and maintain
the perfection and priority of) the security interest granted hereby and (iv)
the Collateral Agent shall have received evidence that all other actions
(including, without limitation, the payment of all filing fees and taxes, if
any, payable in connection
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with such filings) have been taken, in order to perfect (and maintain the
perfection and priority of) the security interest granted hereby.
2.5. Location of Inventory and Equipment. All Inventory and
Equipment held on the date hereof by each Assignor is located at one of the
locations shown on Annex B hereto for such Assignor. Each Assignor agrees that
all Inventory and Equipment now held or subsequently acquired by it shall be
kept at (or shall be in transport to) any one of the locations shown on Annex B
hereto for such Assignor, or at such new location as such Assignor may establish
in accordance with the last sentence of this Section 2.5. Any Assignor may
establish a new location for its Inventory and Equipment if (i) such Assignor
shall have given to the Collateral Agent not less than 30 days' prior written
notice of its intention so to do, clearly describing such new location and
providing such other information in connection therewith as the Collateral Agent
may request, (ii) with respect to such new location, such Assignor shall have
taken all action reasonably satisfactory to the Collateral Agent to maintain the
security interest of the Collateral Agent in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect, (iii)
at the reasonable request of the Collateral Agent, such Assignor shall have
furnished an opinion of counsel reasonably acceptable to the Collateral Agent to
the effect that all financing or continuation statements and amendments or
supplements thereto have been filed in the appropriate filing office or offices,
and all other actions (including, without limitation, the payment of all filing
fees and taxes, if any, payable in connection with such filings) have been taken
in order to perfect (and maintain the perfection and priority of) the security
interest granted hereby and (iv) the Collateral Agent shall have received
evidence that all other actions (including, without limitation, the payment of
all filing fees and taxes, if any, payable in connection with such filings) have
been taken, in order to perfect (and maintain the perfection and priority of)
the security interest granted hereby.
2.6. Recourse. This Agreement is made with full recourse to each
Assignor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of such Assignor contained herein, in the other
Credit Documents, in the Interest Rate Protection Agreements or Other Hedging
Agreements and otherwise in writing in connection herewith or therewith.
2.7. Trade Names; Change of Name. No Assignor operates in any
jurisdiction under, or in the preceding 12 months has had or has operated in any
jurisdiction under, any trade names, fictitious names or other names except its
legal name and such other trade or fictitious names as are listed on Annex C
hereto for such Assignor. No Assignor shall change its legal name or assume or
operate in any jurisdiction under any trade, fictitious or other name except
those names listed on Annex C hereto for such Assignor and new
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names established in accordance with the last sentence of this Section 2.8. No
Assignor shall assume or operate in any jurisdiction under any new trade,
fictitious or other name until (i) such Assignor shall have given to the
Collateral Agent not less than 30 days' prior written notice of its intention so
to do, clearly describing such new name and the jurisdictions in which such new
name shall be used and providing such other information in connection therewith
as the Collateral Agent may reasonably request, (ii) with respect to such new
name, such Assignor shall have taken all action to maintain the security
interest of the Collateral Agent in the Collateral intended to be granted hereby
at all times fully perfected and in full force and effect, (iii) at the
reasonable request of the Collateral Agent, such Assignor shall have furnished
an opinion of counsel reasonably acceptable to the Collateral Agent to the
effect that all financing or continuation statements and amendments or
supplements thereto have been filed in the appropriate filing office or offices,
and all other actions (including, without limitation, the payment of all filing
fees and taxes, if any, payable in connection with such filings) have been taken
in order to perfect (and maintain the perfection and priority of) the security
interest granted hereby and (iv) the Collateral Agent shall have received
evidence that all other actions (including, without limitation, the payment of
all filing fees and taxes, if any, payable in connection with such filings) have
been taken, in order to perfect (and maintain the perfection and priority of)
the security interest granted hereby.
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
3.1. Maintenance of Records. Each Assignor will keep and maintain at
its own cost and expense true and correct records of its Receivables and
Contracts, including, but not limited to, the originals of all documentation
(including each Contract) with respect thereto, records of all payments
received, all credits granted thereon, all merchandise returned and all other
dealings therewith, and such Assignor will make the same available on such
Assignor's premises to the Collateral Agent for inspection, at such Assignor's
own cost and expense, at any and all reasonable times and intervals and to such
extent as the Collateral Agent may reasonably request. Upon the
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occurrence and during the continuance of an Event of Default, such Assignor
shall, at its own cost and expense, upon the request of the Collateral Agent,
deliver all tangible evidence of its Receivables and Contract Rights (including,
without limitation, all documents evidencing the Receivables and all Contracts)
and such books and records to the Collateral Agent or to its representatives
(copies of which evidence and books and records may be retained by such
Assignor). Upon the occurrence and during the continuance of an Event of
Default, if the Collateral Agent so directs, such Assignor shall legend, in form
and manner satisfactory to the Collateral Agent, its Receivables and the
Contracts, as well as books, records and documents (if any) of such Assignor
evidencing or pertaining to such Receivables and Contracts with an appropriate
reference to the fact that such Receivables and Contracts have been assigned to
the Collateral Agent and that the Collateral Agent has a security interest
therein.
3.2. Direction to Account Debtors; Contracting Parties; etc. Upon
the occurrence and during the continuance of an Event of Default and if the
Collateral Agent so directs any Assignor, such Assignor agrees (x) to cause all
payments on account of the Receivables and Contracts to be made directly to the
Cash Collateral Account, (y) that the Collateral Agent may, at its option,
directly notify the obligors with respect to any Receivables and/or under any
Contracts to make payments with respect thereto as provided in the preceding
clause (x) and (z) that the Collateral Agent may enforce collection of any such
Receivables and Contracts and may adjust, settle or compromise the amount of
payment thereof, in the same manner and to the same extent as such Assignor.
Without notice to or assent by any Assignor, the Collateral Agent may apply any
or all amounts then in, or thereafter deposited in, the Cash Collateral Account
in the manner provided in Section 7.4 of this Agreement. The reasonable costs
and expenses (including reasonable attorneys' fees) of collection, whether
incurred by an Assignor or the Collateral Agent, shall be borne by the relevant
Assignor.
3.3. Rights in the Receivables and Contracts. Each Assignor will do
nothing to impair the rights of the Collateral Agent in the Receivables or
Contracts.
3.4. Delivery of Instruments. If any Assignor owns or acquires any
Instruments constituting Collateral in excess of $100,000 and such Collateral is
not otherwise required to be pledged pursuant to the General Pledge Agreement,
such Assignor will within 10 days thereafter notify the Collateral Agent
thereof, and upon request by the Collateral Agent will promptly deliver such
Instrument to the Collateral Agent, appropriately endorsed in a manner
reasonably satisfactory to the Collateral Agent, to be held as Collateral
pursuant to this Agreement. Until such Collateral is delivered to the Collateral
Agent, such Assignor shall hold such property in trust for the Secured
Creditors, segregated from other property of such Assignor, as additional
collateral security for the Obligations.
3.5. Assignors Remain Liable Under Receivables. Anything herein to
the contrary notwithstanding, the Assignors shall remain liable under each of
the Receivables to observe and perform all of the conditions and obligations to
be observed and performed by them thereunder, all in accordance with the terms
of any agreement giving rise to such
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Receivables. Neither the Collateral Agent nor any other Secured Creditor shall
have any obligation or liability under any Receivable (or any agreement giving
rise thereto) by reason of or arising out of this Agreement or the receipt by
the Collateral Agent or any other Secured Creditor of any payment relating to
such Receivable pursuant hereto, nor shall the Collateral Agent or any other
Secured Creditor be obligated in any manner to perform any of the obligations of
any Assignor under or pursuant to any Receivable (or any agreement giving rise
thereto), to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by them or as to the sufficiency of any
performance by any party under any Receivable (or any agreement giving rise
thereto), to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to them or to which they may be entitled at any time or times.
3.6. Assignors Remain Liable Under Contracts. Anything herein to the
contrary notwithstanding, the Assignors shall remain liable under each of the
Contracts to observe and perform all of the conditions and obligations to be
observed and performed by them thereunder, all in accordance with and pursuant
to the terms and provisions of each Contract. Neither the Collateral Agent nor
any other Secured Creditor shall have any obligation or liability under any
Contract by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any other Secured Creditor of any payment relating to such
Contract pursuant hereto, nor shall the Collateral Agent or any other Secured
Creditor be obligated in any manner to perform any of the obligations of any
Assignor under or pursuant to any Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any performance by any party
under any Contract, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have been
assigned to them or to which they may be entitled at any time or times.
3.7. Further Actions. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to its Receivables, Contracts, Instruments and other property or
rights covered by the security interest hereby granted, as the Collateral Agent
may require.
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ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful exclusive owner of the
United States Marks listed in Annex D hereto for such Assignor and that said
listed Marks include all United States marks and applications for registrations
of United States marks in the United States Patent and Trademark Office that
such Assignor owns or uses in connection with its business as of the date
hereof. Each Assignor represents and warrants that it owns, is licensed to use
or otherwise has the right to use and is not prohibited from using all Marks
that is uses. Each Assignor further warrants that it is aware of no third party
claim that any aspect of such Assignor's present or contemplated business
operations infringes or will infringe any trademark, service ▇▇▇▇ or trade name.
Each Assignor represents and warrants that it is the true and lawful owner of or
otherwise has the right to use all United States trademark registrations and
applications listed in Annex D hereto and that said registrations are valid,
subsisting, have not been cancelled and that such Assignor is not aware of any
third-party claim that any of said registrations is invalid or unenforceable, or
is not aware that there is any reason that any of said registrations is invalid
or unenforceable, or is not aware that there is any reason that any of said
material applications will not pass to registration. Each Assignor hereby grants
to the Collateral Agent an absolute power of attorney to sign, upon the
occurrence and during the continuance of an Event of Default, any document which
may be required by the United States Patent and Trademark Office (or the
equivalent foreign office) in order to effect an absolute assignment of all
right, title and interest in each ▇▇▇▇, and record the same.
4.2. Licenses and Assignments. Except as otherwise permitted by the
Credit Agreements, each Assignor hereby agrees not to divest itself of any right
under any ▇▇▇▇ absent prior written approval of the Collateral Agent.
4.3. Infringements. Each Assignor agrees, promptly upon learning
thereof, to notify the Collateral Agent in writing of any potential infringement
claim and, upon and during the continuance of an Event of Default, to furnish
such pertinent information that may be available with respect to, any party who
such Assignor believes is infringing or diluting or otherwise violating any of
such Assignor's rights in and to any material ▇▇▇▇, or with respect to any party
claiming that such Assignor's use of any material ▇▇▇▇ violates any property
right of that party. Each Assignor further agrees, unless otherwise agreed by
the Collateral Agent, to prosecute in accordance with reasonable business
practices any Person infringing any material ▇▇▇▇.
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4.4. Preservation of Marks. Except as otherwise permitted by the
Credit Agreements, each Assignor agrees to take such actions to preserve its
United States Marks as trademarks or service marks under the laws of the United
States.
4.5. Maintenance of Registration. Each Assignor shall, at its own
expense, diligently process all documents required to maintain those trademark
registrations deemed by such Assignor's senior management or Board of Directors
to be in the best interests of such Assignor, including but not limited to
affidavits of use and applications for renewals of registration in the United
States Patent and Trademark Office for all of its material registered Marks, and
shall pay all fees and disbursements in connection therewith.
4.6. Future Registered Marks. If any United States ▇▇▇▇ registration
issues hereafter to any Assignor as a result of any application now or hereafter
pending before the United States Patent and Trademark Office, within 30 days of
receipt of such certificate, such Assignor shall deliver to the Collateral Agent
a copy of such certificate, and an assignment for security in such ▇▇▇▇, to the
Collateral Agent and at the expense of such Assignor, confirming the assignment
for security in such ▇▇▇▇ to the Collateral Agent hereunder, the form of such
security to be substantially the same as the form hereof.
4.7. Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent may, by written notice to the relevant Assignor, take any
or all of the following actions: (i) declare the entire right, title and
interest of such Assignor in and to each of the Marks and the goodwill of the
business associated therewith, together with all trademark rights and rights of
protection to the same, vested in the Collateral Agent for the benefit of the
Secured Creditors, in which event such rights, title and interest shall
immediately vest in the Collateral Agent for the benefit of the Secured
Creditors, and the Collateral Agent shall be entitled to exercise the power of
attorney referred to in Section 4.1 hereof to execute, cause to be acknowledged
and notarized and record said absolute assignment with the applicable agency;
(ii) take and use or sell the Marks and the goodwill of such Assignor's business
symbolized by the Marks and the right to carry on the business and use the
assets of such Assignor in connection with which the Marks have been used; (iii)
direct such Assignor to refrain, in which event such Assignor shall as promptly
as practicable refrain, from using the Marks in any manner whatsoever, directly
or indirectly, and, if requested by the Collateral Agent, change such Assignor's
corporate name to eliminate therefrom any use of any ▇▇▇▇; and (iv) direct such
Assignor to execute such other and further documents that the Collateral Agent
may request to further confirm the foregoing and to transfer ownership of the
Marks and registrations and any pending trademark application in the United
States Patent and Trademark Office to the Collateral Agent.
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ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner of all rights in
(i) all United States trade secrets and proprietary information necessary to
operate the business of such Assignor (the "Trade Secret Rights"), (ii) the
United States Patents listed in Annex E hereto for such Assignor and that said
Patents include all United States patents and applications for United States
patents that such Assignor owns as of the date hereof and (iii) the United
States Copyrights listed in Annex F hereto for such Assignor and that said
Copyrights constitute all the United States copyrights registered with the
United States Copyright Office and applications to United States copyrights that
such Assignor now owns. Each Assignor represents and warrants that it owns or is
licensed to practice under all Patents and Copyrights that it now uses or
practices under. Each Assignor further warrants that it has no knowledge of any
third party claim that any aspect of such Assignor's present or contemplated
business operations infringes or will infringe any patent or any copyright or
such Assignor has misappropriated any trade secret or proprietary information.
Each Assignor hereby grants to the Collateral Agent an absolute power of
attorney to sign, upon the occurrence and during the continuance of any Event of
Default, any document which may be required by the United States Patent and
Trademark Office (or the equivalent foreign office) or United States Copyright
Office (or the equivalent foreign office), as the case may be, in order to
effect an absolute assignment of all right, title and interest in each Patent
and Copyright, and to record the same.
5.2. Licenses and Assignments. Except as otherwise permitted by the
Credit Agreements, each Assignor hereby agrees not to divest itself of any right
under any Patent or Copyright absent prior written approval of the Collateral
Agent.
5.3. Infringements. Each Assignor agrees, promptly upon learning
thereof, to notify the Collateral Agent in writing of any potential infringement
claim and, upon and during the continuance of an Event of Default, to furnish
all pertinent information available to such Assignor with respect to any
infringement in any material Patent or Copyright or to any claim that the
practice of any Patent or Copyright violates any property right of a third
party, or with respect to any misappropriation of any Trade Secret Right or any
claim that practice of any Trade Secret Right violates any property right of a
third party. Each Assignor further agrees, absent direction of the Collateral
Agent to the contrary, diligently
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to prosecute in accordance with reasonable business practices any Person
infringing any Patent or Copyright or any Person misappropriating any Trade
Secret Right.
5.4. Maintenance of Patents or Copyrights. At its own expense, each
Assignor shall make timely payment of all post-issuance fees required to
maintain in force rights under each material Patent or Copyright.
5.5. Prosecution of Patent or Copyright Application. At its own
expense, each Assignor shall diligently prosecute those applications for (i)
United States Patents listed in Annex E hereto and (ii) United States Copyrights
listed in Annex F hereto, in each case for such Assignor as deemed by such
Assignor's senior management or Board of Directors to be in the best interests
of such Assignor.
5.6. Other Patents or Copyrights. Within 30 days of the acquisition
or issuance of a United States Patent or United States Copyright or of filing of
an application for a United States Patent or United States Copyright, the
relevant Assignor shall deliver to the Collateral Agent a copy of said
certificate or registration of, or application for, said Patent or Copyright, as
the case may be, with an assignment for security as to such Patent or Copyright,
as the case may be, to the Collateral Agent and at the expense of such Assignor,
confirming the assignment for security, the form of such assignment for security
to be substantially the same as the form hereof.
5.7. Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent may by written notice to the relevant Assignor, take any or
all of the following actions: (i) declare the entire right, title, and interest
of such Assignor in each of the Patents and Copyrights vested in the Collateral
Agent for the benefit of the Secured Creditors, in which event such right,
title, and interest shall immediately vest in the Collateral Agent for the
benefit of the Secured Creditors, in which case the Collateral Agent shall be
entitled to exercise the power of attorney referred to in Section 5.1 hereof to
execute, cause to be acknowledged and notarized and to record said absolute
assignment with the applicable agency; (ii) take and practice or sell the
Patents and Copyrights; (iii) direct such Assignor to refrain, in which event
such Assignor shall as promptly as practicable refrain, from practicing the
Patents and Copyrights directly or indirectly; and (iv) such Assignor shall
execute such other and further documents as the Collateral Agent may request
further to confirm the foregoing and to transfer ownership of the Patents and
Copyrights to the Collateral Agent for the benefit of the Secured Creditors.
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ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. Protection of Collateral Agent's Security. Each Assignor will
do nothing to impair the rights of the Collateral Agent in the Collateral. Each
Assignor will at all times keep its Inventory and Equipment insured in favor of
the Collateral Agent, at such Assignor's own expense to the extent and in the
manner provided in the Credit Agreement. If any Assignor shall fail to insure
its Inventory and Equipment in accordance with the preceding sentence, or if
such Assignor shall fail to so endorse and deposit all policies with respect
thereto to the extent required by the Credit Agreements, the Collateral Agent
shall have the right (but shall be under no obligation) to procure such
insurance and such Assignor agrees to promptly reimburse the Collateral Agent
for all costs and expenses of procuring such insurance. The Collateral Agent
shall, at the time such proceeds of such insurance are distributed to the
Secured Creditors, apply such proceeds in accordance with Section 7.4 hereof.
Each Assignor assumes all liability and responsibility in connection with the
Collateral acquired by it and the liability of such Assignor to pay the
Obligations shall in no way be affected or diminished by reason of the fact that
such Collateral may be lost, destroyed, stolen, damaged or for any reason
whatsoever unavailable to such Assignor.
6.2. Warehouse Receipts Non-negotiable. Each Assignor agrees that if
any warehouse receipt or receipt in the nature of a warehouse receipt is issued
with respect to any of its Inventory, such Assignor shall request that such
warehouse receipt or receipt in the nature thereof shall not be "negotiable" (as
such term is used in Section 7-104 of the Uniform Commercial Code as in effect
in any relevant jurisdiction or under other relevant law).
6.3. Further Actions; Louisiana Matters. (a) Each Assignor will, at
its own expense, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such lists, descriptions and designations of
its Collateral, warehouse receipts, receipts in the nature of warehouse
receipts, bills of lading, documents of title, vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, reports and other assurances or
instruments and take such further steps relating to the Collateral and other
property or rights covered by the security interest hereby granted, which the
Collateral Agent reasonably deems appropriate or advisable to perfect, preserve
or protect its security interest in the Collateral.
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(b) Notwithstanding anything contained in this Agreement to the
contrary, each Assignor agrees that at all times during which any portion of the
Collateral, or any proceeds thereof, are located in Louisiana or are otherwise
subject to the application of Louisiana law in any respect, the security
interest granted by each Assignor to the Collateral Agent in such portions of
such Collateral shall be subject to the provisions of Louisiana law and to the
terms of the Louisiana Addendum annexed hereto and each Assignor hereby agrees
to execute and deliver to the Collateral Agent the Louisiana Addendum
substantially in the form of Annex I hereto.
6.4. Financing Statements. Each Assignor agrees to execute and
deliver to the Collateral Agent such financing statements, in form reasonably
acceptable to the Collateral Agent, as the Collateral Agent may reasonably deem
necessary or desirable to establish and maintain a valid, enforceable, first
priority perfected security interest in the Collateral as provided herein and in
the other rights and security contemplated hereby all in accordance with the
Uniform Commercial Code as enacted in any and all relevant jurisdictions or any
other relevant law. Each Assignor will pay any applicable filing fees,
recordation taxes and related expenses relating to its Collateral. Each Assignor
hereby authorizes the Collateral Agent to file any such financing statements
without the signature of such Assignor where permitted by law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. Remedies; Obtaining the Collateral Upon Default. Each Assignor
agrees that, if any Event of Default shall have occurred and be continuing, then
and in every such case, the Collateral Agent, in addition to any rights now or
hereafter existing under applicable law, shall have all rights as a secured
creditor under the Uniform Commercial Code in all relevant jurisdictions and may
take each of the following actions, each of which such Assignor agrees to be
commercially reasonable:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or
any other Person who then has possession of any part thereof with or
without notice or process of law, and for that purpose may enter upon such
Assignor's premises where any of the Collateral is located and remove the
same and use in connection with such removal any and all services,
supplies, aids and other facilities of such Assignor;
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(ii) instruct the obligor or obligors on any agreement, instrument
or other obligation (including, without limitation, the Receivables and
the Contracts) constituting the Collateral to make any payment required by
the terms of such agreement, instrument or other obligation directly to
the Collateral Agent and may exercise any and all remedies and rights of
such Assignor in respect of such Collateral;
(iii) withdraw all monies, securities and instruments in the Cash
Collateral Account for application to the Obligations in accordance with
Section 7.4 hereof;
(iv) sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof in accordance with Section 7.2 hereof, or
direct the relevant Assignor to sell, assign or otherwise liquidate any or
all of the Collateral or any part thereof, and, in each case, take
possession of the proceeds of any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the
Collateral Agent at any place or places designated by the Collateral
Agent, in which event such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place or
places so designated by the Collateral Agent;
(y) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further action by
the Collateral Agent as provided in Section 7.2 hereof;
(z) while the Collateral shall be so stored and kept, provide
such guards and maintenance services as shall be necessary to
protect the same and to preserve and maintain them in good
condition;
(vi) license or sublicense, whether on an exclusive or nonexclusive
basis, any Marks, Patents and Copyrights included in the Collateral for
such term and on such conditions and in such manner as the Collateral
Agent shall in its sole judgment determine;
it being understood that each Assignor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity hav-
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ing jurisdiction, the Collateral Agent shall be entitled to a decree requiring
specific performance by such Assignor of said obligation. The Secured Creditors
agree that this Agreement may be enforced only by the action of the Collateral
Agent, in each case acting upon the instructions of the Required Secured
Creditors and that no other Secured Creditor shall have any right individually
to seek to enforce or to enforce this Agreement or to realize upon the security
to be granted hereby, it being understood and agreed that such rights and
remedies may be exercised by the Collateral Agent or the holders of at least a
majority of the outstanding Other Obligations, as the case maybe, for the
benefit of the Secured Creditors upon the terms of this Agreement and the Credit
Agreements.
7.2. Remedies; Disposition of the Collateral. Any Collateral
repossessed by the Collateral Agent under or pursuant to Section 7.1 hereof and
any other Collateral whether or not so repossessed by the Collateral Agent, may
be sold, assigned, leased or otherwise disposed of under one or more contracts
or as an entirety, and without the necessity of gathering at the place of sale
the property to be sold, and in general in such manner, at such time or times,
at such place or places and on such terms as the Collateral Agent may, in
compliance with any mandatory requirements of applicable law, determine to be
commercially reasonable. Any of the Collateral may be sold, leased or otherwise
disposed of, in the condition in which the same existed when taken by the
Collateral Agent or after any overhaul or repair at the expense of the relevant
Assignor which the Collateral Agent shall determine to be commercially
reasonable. Any such disposition which shall be a private sale or other private
proceedings permitted by such requirements shall be made upon not less than 10
days' written notice to the relevant Assignor specifying the time at which such
disposition is to be made and the intended sale price or other consideration
therefor, and shall be subject, for the 10 days after the giving of such notice,
to the right of the relevant Assignor or any nominee of such Assignor to acquire
the Collateral involved at a price or for such other consideration at least
equal to the intended sale price or other consideration so specified. Any such
disposition which shall be a public sale permitted by such requirements shall be
made upon not less than 10 days' written notice to the relevant Assignor
specifying the time and place of such sale and, in the absence of applicable
requirements of law, shall be by public auction (which may, at the Collateral
Agent's option, be subject to reserve), after publication of notice of such
auction not less than 10 days prior thereto in two newspapers in general
circulation in the City of New York. To the extent permitted by any such
requirement of law, the Collateral Agent and the other Secured Creditors may bid
for and become the purchaser of the Collateral or any item thereof, offered for
sale in accordance with this Section without accountability to the relevant
Assignor. If, under mandatory requirements of applicable law, the Collateral
Agent shall be required to make disposition of the Collateral within a period of
time which does not permit the giving of notice to the relevant Assignor as
hereinabove specified, the Collateral
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Agent need give such Assignor only such notice of disposition as shall be
reasonably practicable in view of such mandatory requirements of applicable law.
Each Assignor agrees to do or cause to be done all such other acts and things as
may be reasonably necessary to make such sale or sales of all or any portion of
the Collateral valid and binding and in compliance with any and all applicable
laws, regulations, orders, writs, injunctions, decrees or awards of any and all
courts, arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at such Assignor's expense.
7.3. Waiver of Claims. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL
AGENT'S TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY OR ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH SUCH ASSIGNOR
WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES
OR OF ANY STATE, and each Assignor hereby further waives, to the extent
permitted by law:
(i) all damages occasioned by such taking of possession except any
damages which are the direct result of the Collateral Agent's gross
negligence or willful misconduct;
(ii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Collateral
Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law
in order to prevent or delay the enforcement of this Agreement or the
absolute sale of the Collateral or any portion thereof, and each Assignor,
for itself and all who may claim under it, insofar as it or they now or
hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or at-
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tempting to claim the Collateral so sold, optioned or realized upon, or any part
thereof, from, through and under such Assignor.
7.4. Application of Proceeds. (a) All moneys collected by the
Collateral Agent (or, to the extent any Pledge Agreement or any Mortgage
requires proceeds of collateral under such Security Documents to be applied in
accordance with the provisions of this Agreement, the Pledgee or Mortgagee under
such other Security Document) upon any sale or other disposition of the
Collateral, together with all other moneys received by the Collateral Agent
hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing the Collateral
Agent of the type provided in clauses (iv) and (v) of the definition of
Obligations;
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Primary Obligations shall be paid to the Secured Creditors as provided in
Section 7.4(e) hereof, with each Secured Creditor receiving an amount
equal to its outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its Pro Rata
Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations shall be paid to the Secured Creditors
as provided in Section 7.4(e) hereof, with each Secured Creditor receiving
an amount equal to its outstanding Secondary Obligations or, if the
proceeds are insufficient to pay in full all such Secondary Obligations,
its Pro Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii) inclusive and
following the termination of this Agreement pursuant to Section 11.8
hereof, to the relevant Assignor or, to the extent directed by such
Assignor or a court of competent jurisdiction, to whomever may be lawfully
entitled to receive such surplus.
(b) For purposes of this Agreement, (x) "Pro Rata Share" shall mean,
when calculating a Secured Creditor's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Creditor's Primary Obligations
or Secondary Obligations, as the case may be, and the denominator of which is
the then outstanding amount of all Primary
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Obligations or Secondary Obligations, as the case may be, (y) "Primary
Obligations" shall mean (i) in the case of the SCIS Credit Document Obligations
and the Caterair Credit Document Obligations, all principal of, and interest on,
all loans, all unpaid drawings in respect of letters of credit (together with
all interest accrued thereon), the aggregate stated amounts of all letters of
credit issued under the SCIS Credit Agreement, and all fees and (ii) in the case
of the Other Obligations, all amounts due under the Interest Rate Protection
Agreements or Other Hedging Agreements (other than indemnities, fees (including,
without limitation, attorneys' fees) and similar obligations and liabilities)
and (z) "Secondary Obligations" shall mean all Obligations other than Primary
Obligations.
(c) When payments to the Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 7.4 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with each Secured Creditor whose Primary Obligations or
Secondary Obligations, as the case may be, have not been paid in full to receive
an amount equal to such excess amount multiplied by a fraction the numerator of
which is the unpaid Primary Obligations or Secondary Obligations, as the case
may be, of such Secured Creditor and the denominator of which is the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
(d) Each of the Secured Creditors agrees and acknowledges that if
the SCIS Bank Creditors are to receive a distribution on account of undrawn
amounts with respect to letters of credit issued under the SCIS Credit Agreement
(which shall only occur after all outstanding loans under the SCIS Credit
Agreement and unpaid drawings with respect to such letters of credit have been
paid in full), such amounts shall be paid to the SCIS Administrative Agent under
the SCIS Credit Agreement and held by it, for the equal and ratable benefit of
the SCIS Bank Creditors, as cash security for the repayment of Obligations owing
to the SCIS Bank Creditors as such. If any amounts are held as cash security
pursuant to the immediately preceding sentence, then upon the termination of all
outstanding letters of credit under the SCIS Credit Agreement, and after the
application of all such cash security to the repayment of all Obligations owing
to the SCIS Bank Creditors after giving effect to the termination of all such
letters of credit, if there remains any excess cash, such excess cash shall be
returned by the SCIS Administrative Agent to the Collateral Agent for
distribution in accordance with Section 7.4(a) hereof.
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(e) Except as set forth in Section 7.4(c) hereof, all payments
required to be made to the SCIS Bank Creditors hereunder shall be made to the
SCIS Administrative Agent under the SCIS Credit Agreement for the account of the
SCIS Bank Creditors, all payments required to be made to the Caterair Bank
Creditors hereunder shall be made to the Caterair Administrative Agent under the
Caterair Credit Agreement for the account of the Caterair Bank Creditors and all
payments required to be made to the Other Creditors hereunder shall be made
directly to the respective Other Creditor.
(f) For purposes of applying payments received in accordance with
this Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
respective Administrative Agent under the respective Credit Agreement and (ii)
the Other Creditors for a determination (which each Administrative Agent, each
Other Creditor and the Secured Creditors agree (or shall agree) to provide upon
request of the Collateral Agent) of the outstanding Obligations owed to the SCIS
Bank Creditors, the Caterair Bank Creditors or the Other Creditors, as the case
may be. Unless it has actual knowledge (including by way of written notice from
an SCIS Bank Creditor, a Caterair Bank Creditor or an Other Creditor) to the
contrary, each Administrative Agent under the applicable Credit Agreement, in
furnishing information pursuant to the preceding sentence, and the Collateral
Agent, in acting hereunder, shall be entitled to assume that (x) no Secondary
Obligations are owing to any SCIS Bank Creditor, Caterair Bank Creditor or Other
Creditor and (y) no Interest Rate Protection Agreement or Other Hedging
Agreement, or Other Obligations in respect thereof, are in existence.
(g) It is understood that the Assignors shall remain jointly and
severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the sums referred to in
clause (a) of this Section 7.4 with respect to the relevant Assignor.
7.5. Remedies Cumulative. Each and every right, power and remedy
hereby specifically given to the Collateral Agent shall be in addition to every
other right, power and remedy specifically given under this Agreement, the
Interest Rate Protection Agreements or Other Hedging Agreements, the other
Credit Documents or now or hereafter existing at law, in equity or by statute
and each and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time or simultaneously and as
often and in such order as may be deemed expedient by the Collateral Agent. All
such rights, powers and remedies shall be cumulative and the exercise or the
beginning of the exercise of one shall not be deemed a waiver of the right to
exercise any other or others. No delay or omission of the Collateral Agent in
the exercise of any such right, power or remedy and no renewal or extension of
any of the Obligations shall impair
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any such right, power or remedy or shall be construed to be a waiver of any
Default or Event of Default or an acquiescence therein. No notice to or demand
on any Assignor in any case shall entitle it to any other or further notice or
demand in similar or other circumstances or constitute a waiver of any of the
rights of the Collateral Agent to any other or further action in any
circumstances without notice or demand. In the event that the Collateral Agent
shall bring any suit to enforce any of its rights hereunder and shall be
entitled to judgment, then in such suit the Collateral Agent may recover
expenses, including attorneys' fees, and the amounts thereof shall be included
in such judgment.
7.6. Discontinuance of Proceedings. In case the Collateral Agent
shall have instituted any proceeding to enforce any right, power or remedy under
this Agreement by foreclosure, sale, entry or otherwise, and such proceeding
shall have been discontinued or abandoned for any reason or shall have been
determined adversely to the Collateral Agent, then and in every such case the
relevant Assignor, the Collateral Agent and each holder of any of the
Obligations shall be restored to their former positions and rights hereunder
with respect to the Collateral subject to the security interest created under
this Agreement, and all rights, remedies and powers of the Collateral Agent
shall continue as if no such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1. Indemnity. (a) Each Assignor jointly and severally agrees to
indemnify, reimburse and hold the Collateral Agent, each other Secured Creditor
and their respective successors, permitted assigns, employees, agents and
servants (hereinafter referred to individually as "Indemnitee," and collectively
as "Indemnitees") harmless from any and all liabilities, obligations, damages,
injuries, penalties, claims, demands, actions, suits, judgments and any and all
costs, expenses or disbursements (including reasonable attorneys' fees and
expenses) (for the purposes of this Section 8.1 the foregoing are collectively
called "expenses") of whatsoever kind and nature imposed on, asserted against or
incurred by any of the Indemnitees in any way relating to or arising out of this
Agreement, or in any other way connected with the administration of the
transactions contemplated hereby or the enforcement of any of the terms hereof,
or the preservation of any rights hereunder, or in any way relating to or
arising out of the manufacture, ownership, ordering, purchase, delivery,
control, acceptance, lease, financing, possession, operation, condition, sale,
return or other disposition, or use of the Collateral (including, without
limitation, latent or other defects, whether or not discoverable), the violation
of the laws
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of any country, state or other governmental body or unit, any tort (including,
without limitation, claims arising or imposed under the doctrine of strict
liability, or for or on account of injury to or the death of any Person
(including any Indemnitee), or property damage), or contract claim; provided
that no Indemnitee shall be indemnified pursuant to this Section 8.1(a) for
losses, damages or liabilities to the extent caused by the gross negligence or
willful misconduct of such Indemnitee. Each Assignor agrees that upon written
notice by any Indemnitee of the assertion of such a liability, obligation,
damage, injury, penalty, claim, demand, action, suit or judgment, the relevant
Assignor shall assume full responsibility for the defense thereof. Each
Indemnitee agrees to use its best efforts to promptly notify the relevant
Assignor of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof, each
Assignor agrees, jointly and severally, to pay, or reimburse the Collateral
Agent for any and all reasonable fees, costs and expenses of whatever kind or
nature incurred in connection with the creation, preservation or protection of
the Collateral Agent's Liens on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the Collateral, premiums
for insurance with respect to the Collateral and all other reasonable fees,
costs and expenses in connection with protecting, maintaining or preserving the
Collateral and the Collateral Agent's interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting any actions, suits or
proceedings arising out of or relating to the Collateral.
(c) If and to the extent that the obligations of any Assignor under
this Section 8.1 are unenforceable for any reason, such Assignor hereby agrees
to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
8.2. Indemnity Obligations Secured by Collateral; Survival. Any
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in Section 8.1 hereof shall
continue in full force and effect notwithstanding the full payment of all the
Notes issued under the Credit Agreement, the termination of all Interest Rate
Protection Agreements or Other Hedging Agreements and the payment of all other
Obligations and notwithstanding the discharge thereof.
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ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of the
terms defined.
"Administrative Agent" shall have the meaning provided in the
recitals to this Agreement.
"Agreement" shall mean this Amended and Restated Security Agreement,
as the same may be modified, supplemented or amended from time to time in
accordance with its terms.
"American Airports" shall mean the Dallas/Fort Worth, Chicago
▇'▇▇▇▇, Nashville and Raleigh-Durham airports.
"Assignor" shall have the meaning provided in the first paragraph of
this Agreement.
"Bank Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Banks" shall have the meaning provided in the recitals to this
Agreement.
"Cash Collateral Account" shall mean a non-interest bearing cash
collateral account maintained with the Collateral Agent for the benefit of the
Secured Creditors.
"Caterair" shall have the meaning provided in the recitals to this
Agreement.
"Caterair Administrative Agent" shall have the meaning provided in
the recitals to this Agreement.
"Caterair Bank Creditors" shall have the meaning provided in the
recitals to this Agreement.
"Caterair Banks" shall have the meaning provided in the recitals to
this Agreement.
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"Caterair Co-Arrangers" shall have the meaning provided in the
recitals to this Agreement.
"Caterair Credit Agreement" shall have the meaning provided in the
recitals to this Agreement.
"Caterair Credit Document Obligations" shall have the meaning
provided in the definition of "Obligations" in this Article IX.
"Caterair Holdings" shall have the meaning provided in the recitals
to this Agreement.
"Chattel Paper" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in Section 11.2 of this
Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a) of
this Agreement.
"Collateral Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Contract Rights" shall mean all rights of any Assignor (including,
without limitation, all rights to payment) under each Contract.
"Contracts" shall mean all contracts between any Assignor and one or
more additional parties (including, without limitation, each Catering Agreement,
any Interest Rate Protection Agreement or Other Hedging Agreement, each
partnership agreement and joint venture agreement to which any Assignor is a
party and the Subordinated Intercompany Security Agreement), but excluding any
contract (other than the right to the payment of money that is due or is to
become due thereunder which shall in any event be subject to the security
interests under this Agreement) to the extent that the terms thereof prohibit
the assignment of, or granting a security interest in, such contract.
"Copyrights" shall mean any copyright owned by any Assignor,
including any registrations of any Copyrights, in the United States Copyright
Office (or the equivalent foreign office), as well as any application for a
copyright registration now or hereafter
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made with the United States Copyright Office (or the equivalent foreign office)
by any Assignor.
"Credit Agreements" shall have the meaning provided in the recitals
to this Agreement.
"Credit Documents" shall have the meaning provided in the definition
of "Obligations" in this Article IX.
"Default" shall mean any event which, with notice or lapse of time,
or both, would constitute an Event of Default.
"Documents" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is defined in
the Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all machinery, equipment, furnishings, movable
trade fixtures and vehicles now or hereafter owned by any Assignor and any and
all additions, substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto.
"Event of Default" shall mean any Event of Default under, and as
defined in, either Credit Agreement and shall in any event, without limitation,
include any payment default on any of the Obligations after the expiration of
any applicable grace period.
"General Intangibles" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Goods" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 8.1 of this
Agreement.
"Instrument" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
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"Inventory" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof, wherever located, together
with all goods, supplies, incidentals, packaging materials, labels, materials
and any other items used or usable in manufacturing, processing, packaging or
shipping same; in all stages of production -- from raw materials through
work-in-process to finished goods -- and all products and proceeds of whatever
sort and wherever located and any portion thereof which may be returned,
rejected, reclaimed or repossessed by the Collateral Agent from any Assignor's
customers, and shall specifically include all "inventory" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York, now or hereafter owned by any Assignor.
"Liens" shall mean any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, title retention agreement, lessor's interest in a
financing lease or analogous instrument, in, of, or on any Assignor's property.
"Marks" shall mean all right, title and interest in and to any
trademarks, service marks and trade names now held or hereafter acquired by any
Assignor, including any registration of any trademarks and service marks, or the
equivalent thereof in any foreign country or in the United States Patent and
Trademark Office and any trade dress including logos and/or designs used by any
Assignor in the United States or any foreign country.
"Obligations" shall mean:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (including, without limitation, the principal of and
interest on the notes issued by, and loans made to, SCIS under the SCIS
Credit Agreement, all reimbursement obligations and unpaid drawings in
respect of letters of credit issued under the SCIS Credit Agreement, and
all indemnities, fees and interest thereon or owed thereunder) of each
Assignor to the SCIS Bank Creditors, whether now existing or hereafter
incurred under, arising out of, or in connection with the SCIS Credit
Agreement and the other SCIS Credit Documents (such term to mean the
"Credit Documents" as defined in the SCIS Credit Agreement) (including,
without limitation, in the case of each Subsidiary Guarantor (including
Caterair), all of its obligations, liabilities and indebtedness under the
Subsidiaries Guaranty) to which such Assignor is a party and the due
performance and compliance by such Assignor with all of the terms,
conditions and agreements contained in the SCIS Credit Agreement and such
other SCIS Credit Documents (all such obligations, liabilities and
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indebtedness under this clause (i), except to the extent consisting of
obligations, liabilities or indebtedness with respect to Interest Rate
Protection Agreements or Other Hedging Agreements, being herein
collectively called the "SCIS Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (including, without limitation, the principal of and
interest on the notes issued by, and loans made to, SCIS and Caterair
under the Caterair Credit Agreement, and all indemnities, fees and
interest thereon or owed thereunder) of each Assignor to the Caterair Bank
Creditors, whether now existing or hereafter incurred under, arising out
of, or in connection with the Caterair Credit Agreement and the other
Caterair Credit Documents (such term to mean the "Credit Documents" as
defined in the Caterair Credit Agreement, and the Caterair Credit
Documents, together with the SCIS Credit Documents, are referred to herein
as the "Credit Documents") (including, without limitation, in the case of
SCIS, all of its obligations, liabilities and indebtedness under the SCIS
Guaranty and, in the case of each Subsidiary Guarantor (including
Caterair), all of its obligations, liabilities and indebtedness under the
Subsidiaries Guaranty) to which such Assignor is a party and the due
performance and compliance by such Assignor with all of the terms,
conditions and agreements contained in the Caterair Credit Agreement and
such other Caterair Credit Documents (all such obligations, liabilities
and indebtedness under this clause (ii), except to the extent consisting
of obligations, liabilities or indebtedness with respect to Interest Rate
Protection Agreements or Other Hedging Agreements, being herein
collectively called the "Caterair Credit Document Obligations");
(iii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness owing by each Assignor to the Other Creditors under,
arising out of or with respect to, any Interest Rate Protection Agreement
or Other Hedging Agreement (including, without limitation, in the case of
each Assignor, all of its obligations, liabilities and indebtedness under
the Guaranties to which it is a party in respect of such Interest Rate
Protection Agreements or Other Hedging Agreements), whether such Interest
Rate Protection Agreement or Other Hedging Agreement is now in existence
or hereafter arising, and the due performance and compliance by such
Assignor with all of the terms, conditions and agreements contained
therein (all such obligations, liabilities and indebtedness described in
this clause (iii) being herein collectively called the "Other
Obligations");
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(iv) any and all sums advanced by the Collateral Agent in order to
preserve the Collateral or preserve its security interest in the
Collateral;
(v) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations or liabilities of each Assignor referred
to in clauses (i), (ii) and (iii) above, upon the occurrence and during
the continuance of an Event of Default shall have occurred and be
continuing, the reasonable expenses of retaking, holding, preparing for
sale or lease, selling or otherwise disposing of or realizing on the
Collateral, or of any exercise by the Collateral Agent of its rights
hereunder, together with reasonable attorneys' fees and court costs; and
(vi) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of this
Agreement.
"OFSI" shall have the meaning provided in the recitals to this
Agreement.
"Original Security Agreement" shall have the meaning provided in the
recitals to this Agreement.
"Other Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Other Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"Patents" shall mean any United States or foreign patent to which
any Assignor now or hereafter has title and any divisions or continuations
thereof, as well as any application for a United States or foreign patent now or
hereafter made by any Assignor.
"Primary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Pro Rata Share" shall have the meaning provided in Section 7.4(b)
of this Agreement.
"Proceeds" shall have the meaning provided in the Uniform Commercial
Code as in effect in the State of New York on the date hereof or under other
relevant law and, in any event, shall include, but not be limited to, (i) any
and all proceeds of any insur-
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ance, indemnity, warranty or guaranty payable to the Collateral Agent or any
Assignor from time to time with respect to any of the Collateral, (ii) any and
all payments (in any form whatsoever) made or due and payable to any Assignor
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
governmental authority (or any person acting under color of governmental
authority) and (iii) any and all other amounts from time to time paid or payable
under or in connection with any of the Collateral.
"Receivables" shall mean any "account" as such term is defined in
the Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all of such Assignor's rights to payment for goods
sold or leased or services performed by such Assignor, whether now in existence
or arising from time to time hereafter, including, without limitation, rights
evidenced by an account, note, contract, security agreement, chattel paper, or
other evidence of indebtedness or security, together with (a) all security
pledged, assigned, hypothecated or granted to or held by such Assignor to secure
the foregoing, (b) all of any Assignor's right, title and interest in and to any
goods, the sale of which gave rise thereto, (c) all guarantees, endorsements and
indemnifications on, or of, any of the foregoing, (d) all powers of attorney for
the execution of any evidence of indebtedness or security or other writing in
connection therewith, (e) all books, records, ledger cards, and invoices
relating thereto, (f) all evidences of the filing of financing statements and
other statements and the registration of other instruments in connection
therewith and amendments thereto, notices to other creditors or secured parties,
and certificates from filing or other registration officers, (g) all credit
information, reports and memoranda relating thereto and (h) all other writings
related in any way to the foregoing.
"Required Secured Creditors" shall mean (i) prior to the occurrence
of an Event of Default, those Banks the sum of whose outstanding loans,
percentage participation in outstanding letters of credit and unutilized
commitments under the Credit Agreements represent an amount greater than 50% of
the sum of all outstanding loans, percentage participations in all outstanding
letters of credit and unutilized commitments under the Credit Agreements (or, to
the extent required by each Credit Agreement, each of the Banks under each of
the Credit Agreements), (ii) on and after the occurrence and during the
continuance of an Event of Default, those Banks the sum of whose outstanding
loans and percentage participation in outstanding letters of credit represent an
amount greater than 50% of the sum of all outstanding loans and percentage
participations in all outstanding letters of credit under the Credit Agreements
(or, to the extent required by each Credit Agreement, each of the Banks under
each of the Credit Agreements) or (iii) after all SCIS Credit Document
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Page 31
Obligations and all Caterair Credit Document Obligations have been paid in full,
the holders of a majority of the outstanding principal amount of the Other
Obligations.
"Requisite Creditors" shall have the meaning provided in Section
11.2 of this Agreement.
"SCIS" shall have the meaning provided in the recitals to this
Agreement.
"SCIS Administrative Agent" shall have the meaning provided in the
recitals to this Agreement.
"SCIS Bank Creditors" shall have the meaning provided in the
recitals to this Agreement.
"SCIS Banks" shall have the meaning provided in the recitals to this
Agreement.
"SCIS Co-Arrangers" shall have the meaning provided in the recitals
to this Agreement.
"SCIS Credit Agreement" shall have the meaning provided in the
recitals to this Agreement.
"SCIS Credit Document Obligations" shall have the meaning provided
in the definition of "Obligations" in this Article IX.
"Secondary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Secured Creditors" shall have the meaning provided in the recitals
to this Agreement.
"Secured Debt Agreements" shall mean and include this Agreement, the
other Credit Documents and the Interest Rate Protection Agreements and the Other
Hedging Agreements.
"Termination Date" shall have the meaning provided in Section 11.8
of this Agreement.
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"Trade Secret Rights" shall have the meaning provided in Section 5.1
of this Agreement.
ARTICLE X
THE COLLATERAL AGENT
10.1. Appointment. The Secured Creditors, by their acceptance of the
benefits of this Agreement and the other Security Documents, hereby irrevocably
designate ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Collateral Agent, to act
as specified herein and in the other Credit Documents. Each Secured Creditor
hereby irrevocably authorizes, and each holder of any Note by the acceptance of
such Note and by the acceptance of the benefits of this Agreement and the other
Credit Documents shall be deemed irrevocably to authorize, the Collateral Agent
to take such action on its behalf under the provisions of this Agreement and the
other Credit Documents and any other instruments and agreements referred to
herein or therein and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the
Collateral Agent by the terms hereof or thereof and such other powers as are
reasonably incidental thereto. The Collateral Agent may perform any of its
duties hereunder and under the other Credit Documents by or through its
authorized agents or employees.
10.2. Nature of Duties. (a) The Collateral Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement
and in the other Credit Documents. The duties of the Collateral Agent shall be
mechanical and administrative in nature; the Collateral Agent shall not have by
reason of this Agreement, any other Credit Document or any other Secured Debt
Agreement a fiduciary relationship in respect of any Secured Creditor; and
nothing in this Agreement, any other Credit Document or any other Secured Debt
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Collateral Agent any obligations in respect of this Agreement or
any other Credit Document except as expressly set forth herein or therein.
(b) The Collateral Agent shall not be responsible for insuring the
Collateral hereunder or any collateral under the other Security Documents or for
the payment of taxes, charges or assessments or discharging of Liens upon the
Collateral hereunder or any collateral under the Security Documents or otherwise
as to the maintenance of the Collateral hereunder or any collateral under the
Security Documents.
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(c) The Collateral Agent shall not be required to ascertain or
inquire as to the performance by any Assignor of any of the covenants or
agreements contained in this Agreement, any other Credit Document or any other
Secured Debt Agreement.
(d) The Collateral Agent shall be under no obligation or duty to
take any action under this Agreement or any other Credit Document if taking such
action (i) would subject the Collateral Agent to a tax in any jurisdiction where
it is not then subject to a tax or (ii) would require the Collateral Agent to
qualify to do business in any jurisdiction where it is not then so qualified,
unless the Collateral Agent receives security or indemnity satisfactory to it
against such tax (or equivalent liability), or any liability resulting from such
qualification, in each case as results from the taking of such action under this
Agreement or any other Credit Document or (iii) would subject the Collateral
Agent to in personam jurisdiction in any locations where it is not then so
subject.
(e) Notwithstanding any other provision of this Agreement or any
other Credit Document, neither the Collateral Agent nor any of its officers,
directors, employees, affiliates or agents shall, in its individual capacity, be
personally liable for any action taken or omitted to be taken by it in
accordance with this Agreement or any other Credit Document except for its own
gross negligence or willful misconduct.
10.3. Lack of Reliance on the Collateral Agent. Independently and
without reliance upon the Collateral Agent, each Secured Creditor, to the extent
it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of each
Assignor in connection with the making and the continuance of the Obligations
and the taking or not taking of any action in connection therewith, and (ii) its
own appraisal of the creditworthiness of each Assignor, and the Collateral Agent
shall have no duty or responsibility, either initially or on a continuing basis,
to provide any Secured Creditor with any credit or other information with
respect thereto, whether coming into its possession before the extension of any
Obligations or the purchase of any Notes or at any time or times thereafter. The
Collateral Agent shall not be responsible in any manner whatsoever to any
Secured Creditor for the correctness of any recitals, statements, information,
representations or warranties in any Credit Document or in any document,
certificate or other writing delivered in connection therewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or the other Credit
Documents or the security interests granted hereunder or thereunder or the
financial condition of any Assignor or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any other Credit Document, or the financial
condition of any Assignor, or the existence or possible existence of any Default
or Event
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of Default. The Collateral Agent makes no representations as to the value or
condition of the Collateral hereunder or the collateral under any other Security
Document or any part thereof, or as to the title of any Assignor thereto or as
to the security afforded by this Agreement or the other Security Documents.
10.4. Certain Rights of the Collateral Agent. (a) No Secured
Creditor shall have the right to cause the Collateral Agent to take any action
with respect to the Collateral hereunder or the collateral under any other
Security Document, with only the Required Secured Creditors having the right to
direct the Collateral Agent to take any such action. If the Collateral Agent
shall request instructions from the Required Secured Creditors, with respect to
any act or action (including failure to act) in connection with this Agreement
or any other Security Document, the Collateral Agent shall be entitled to
refrain from such act or taking such action unless and until it shall have
received instructions from the Required Secured Creditors and to the extent
requested, appropriate indemnification in respect of actions to be taken, and
the Collateral Agent shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Secured Creditor shall have any
right of action whatsoever against the Collateral Agent as a result of the
Collateral Agent acting or refraining from acting hereunder in accordance with
the instructions of the Required Secured Creditors.
(b) The Collateral Agent shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement or any other Credit
Document at the request or direction of any of the Secured Creditors, unless
such Secured Creditors shall have offered to the Collateral Agent reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
10.5. Reliance. The Collateral Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
the proper Person or entity, and, with respect to all legal matters pertaining
to this Agreement or any other Credit Document and its duties hereunder or
thereunder, upon advice of counsel selected by it.
10.6. Indemnification. To the extent the Collateral Agent is not
reimbursed and indemnified by any Assignor under this Agreement or any other
Credit Document, the Secured Creditors will reimburse and indemnify the
Collateral Agent, in proportion to their respective outstanding principal
amounts (including, for this purpose, any unpaid Primary Obligations in respect
of Interest Rate Protection Agreements or Other Hedging Agreements, as
outstanding principal) of Obligations, for and against any and all liabilities,
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obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Collateral Agent in performing its
duties hereunder or under any other Credit Document, or in any way relating to
or arising out of its actions as Collateral Agent in respect of this Agreement
or under any other Credit Document (including any amounts required to be
returned by the Collateral Agent in respect of Collateral hereunder or
collateral under any other Security Document) except for those resulting solely
from the Collateral Agent's own gross negligence or willful misconduct. The
indemnities set forth in this Article X shall survive the repayment of all
Obligations, with the respective indemnification at such time to be based upon
the outstanding principal amounts (determined as described above) of Obligations
at the time of the respective occurrence upon which the claim against the
Collateral Agent is based or, if same is not reasonably determinable, based upon
the outstanding principal amounts (determined as described above) of Obligations
as in effect immediately prior to the termination of this Agreement. The
indemnities set forth in this Article X are in addition to any indemnities
provided by the Banks to the Collateral Agent pursuant to the Credit Agreements,
with the effect being that the Banks shall be responsible for indemnifying the
Collateral Agent to the extent the Collateral Agent does not receive payments
pursuant to this Section 10.6 from the Secured Creditors (although in such
event, and upon the payment in full of all such amounts owing to the Collateral
Agent, the respective Banks who paid same shall be subrogated to the rights of
the Collateral Agent to receive payment from the Secured Creditors).
10.7. The Collateral Agent in its Individual Capacity. With respect
to its obligations as a lender under either Credit Agreement and any other
Credit Documents to which the Collateral Agent is a party, and to act as agent
under one or more of such Credit Documents, the Collateral Agent shall have the
rights and powers specified therein and herein for a "Bank", or an "Agent", as
the case may be, and may exercise the same rights and powers as though it were
not performing the duties specified herein; and the terms "Banks," "Required
Banks," "Required Secured Creditors, "holders of Notes," or any similar terms
shall, unless the context clearly otherwise indicates, include the Collateral
Agent in its individual capacity. The Collateral Agent may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with any Assignor or any Affiliate or Subsidiary of any Assignor as if
it were not performing the duties specified herein or in the other Credit
Documents, and may accept fees and other consideration from any Assignor for
services in connection with the Credit Agreement, the other Credit Documents and
otherwise without having to account for the same to the Secured Creditors.
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10.8. Holders. The Collateral Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and until written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Collateral Agent. Any request, authority or
consent of any person or entity who, at the time of making such request or
giving such authority or consent, is the holder of any Note, shall be final and
conclusive and binding on any subsequent holder, transferee, assignee or
endorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
10.9. Resignation by the Collateral Agent. (a) The Collateral Agent
may resign from the performance of all of its functions and duties under this
Agreement and the other Credit Documents at any time by giving 20 Business Days'
prior written notice to each Assignor and the Secured Creditors. Such
resignation shall take effect upon the appointment of a successor Collateral
Agent pursuant to clause (b) or (c) below.
(b) If a successor Collateral Agent shall not have been appointed
within said 20 Business Day period by the Required Secured Creditors, the
Collateral Agent, with the consent of each Assignor, which consent shall not be
unreasonably withheld, shall then appoint a successor Collateral Agent who shall
serve as Collateral Agent hereunder and under the other Credit Documents until
such time, if any, as the Required Secured Creditors appoint a successor
Collateral Agent as provided above. Notwithstanding the foregoing, the initial
Collateral Agent (in its capacity as such) may, without the consent of any
Assignor or any Secured Creditor (but upon at least 10 Business Days' prior
written notice to SCIS and the Secured Creditors), assign any or all of its
rights and obligations, as Collateral Agent under this Agreement or any other
Credit Document to ▇.▇. ▇▇▇▇▇▇ Delaware.
(c) If no successor Collateral Agent has been appointed pursuant to
clause (b) above by the 25th Business Day after the date of such notice of
resignation was given by the Collateral Agent, the Required Secured Creditors
shall then appoint a successor Collateral Agent who shall serve as Collateral
Agent hereunder and under the other Credit Documents until such time, if any, as
the Required Secured Creditors appoint a successor Collateral Agent as provided
above.
10.10. Fees of Collateral Agent. Each Assignor (by its execution and
delivery hereof) hereby agrees that it shall pay to ▇▇▇▇▇▇ Guaranty Trust
Company of New York as the initial Collateral Agent, such fees as have been
separately agreed to in writing with ▇▇▇▇▇▇ Guaranty Trust Company of New York
for acting as Collateral Agent hereunder and under the other Security Documents.
In the event a successor Collateral
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Agent is at any time appointed pursuant to the preceding Section 10.9, each
Assignor hereby agrees to pay such successor Collateral Agent such fees for
acting as such as would customarily be charged by such Collateral Agent for
acting in such capacity in similar situations.
ARTICLE XI
MISCELLANEOUS
11.1. Notices. Except as otherwise specified herein, all notices and
communications hereunder shall be sent or delivered by mail, telegraph, telex,
telecopy, cable or overnight courier service and all such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, or cabled
or sent by overnight courier, be effective when delivered to the telegraph
company, cable company or overnight courier, as the case may be, or sent by
telex or telecopier and when mailed shall be effective three Business Days
following deposit in the mail with proper postage, except that notices and
communications to the Collateral Agent shall not be effective until received by
the Collateral Agent. All notices and other communications shall be in writing
and addressed as follows:
(a) if to any Assignor, to the address and communications
information set forth opposite its signature below;
(b) if to the Collateral Agent, at the following address of, and the
communications information for, the Collateral Agent:
▇▇▇▇▇▇ Guaranty Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Bank Creditor (other than the Collateral Agent), at
such address and communications information as such Bank Creditor shall
have specified in the applicable Credit Agreement;
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(d) if to any Other Creditor, at such address and communications
information as such Other Creditor shall have specified in writing to each
Assignor and the Collateral Agent;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
11.2. Waiver; Amendment. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by each Assignor directly affected thereby and the
Collateral Agent (with the consent of the Required Secured Creditors); provided,
that any change, waiver, modification or variance affecting the rights and
benefits of a single Class of Secured Creditors (and not all Secured Creditors
in a like or similar manner) shall also require the written consent of the
Requisite Creditors of such Class of Secured Creditors. For the purpose of this
Agreement, the term "Class" shall mean each class of Secured Creditors, i.e.,
whether (x) the SCIS Bank Creditors as holders of the SCIS Credit Document
Obligations, (y) the Caterair Bank Creditors as holders of the Caterair Credit
Document Obligations or (z) the Other Creditors as the holders of the Other
Obligations. For the purpose of this Agreement, the term "Requisite Creditors"
of any Class shall mean each of (x) with respect to the SCIS Credit Document
Obligations, the Required Banks under, and as defined in, the SCIS Credit
Agreement, (y) with respect to the Caterair Credit Document Obligations, the
Required Banks under, and as defined in, the Caterair Credit Agreement and (z)
with respect to the Other Obligations, the holders of at least a majority of all
obligations outstanding from time to time under the Interest Rate Protection
Agreements or Other Hedging Agreements.
11.3. Obligations Absolute. The obligations of each Assignor
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of such Assignor (it being
understood that the enforcement hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar rights generally
affecting creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law)); (b) any exercise or non-exercise,
or any waiver of, any right, remedy, power or privilege under or in respect of
this Agreement, any other Credit Document or any Interest Rate Protection
Agreement or Other Hedging Agreement; (c) any renewal, extension, amendment or
modification of or addition or supplement to or deletion from any Credit
Document or any Interest Rate Protection Agreement or Other Hedging Agreement or
any security for any of the Obligations; (d) any waiver, consent, extension,
indulgence or other action or inaction under or in respect of any such agreement
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or instrument including, without limitation, this Agreement; (e) any furnishing
of any additional security to the Collateral Agent or its assignee or any
acceptance thereof or any release of any security by the Collateral Agent or its
assignee; or (f) any limitation on any party's liability or obligations under
any such instrument or agreement or any invalidity or unenforceability, in whole
or in part, of any such instrument or agreement or any term thereof; whether or
not any Assignor shall have notice or knowledge of any of the foregoing.
11.4. Successors and Assigns. This Agreement shall be binding upon
each Assignor and its successors and assigns and shall inure to the benefit of
the Collateral Agent and each other Secured Creditor and their respective
successors and assigns; provided, that no Assignor may transfer or assign any or
all of its rights or obligations hereunder except in accordance with the
provisions of the Secured Debt Agreements. All agreements, statements,
representations and warranties made by each Assignor herein or in any
certificate or other instrument delivered by such Assignor or on its behalf
under this Agreement shall be considered to have been relied upon by the Secured
Creditors and shall survive the execution and delivery of this Agreement, the
other Credit Documents and the Interest Rate Protection Agreements or Other
Hedging Agreements regardless of any investigation made by the Secured Creditors
or on their behalf.
11.5. Headings Descriptive. The headings of the several sections of
this Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
11.6. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAW OF THE STATE OF NEW YORK. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
11.7. Assignor's Duties. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Assignor shall remain
liable to perform all of the obligations, if any, assumed by it with respect to
the Collateral and the Collateral Agent shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of this
Agreement, nor shall the Collateral Agent be required or obligated in any
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manner to perform or fulfill any of the obligations of each Assignor under or
with respect to any Collateral.
11.8. Termination; Release. (a) On the Termination Date, but only
after giving effect to the payments to be made on such date, this Agreement
shall terminate (provided that all indemnities set forth herein including,
without limitation, in Section 8.1 hereof shall survive such termination) and
the Collateral Agent, at the request and expense of the respective Assignor,
will promptly execute and deliver to such Assignor proper instruments (including
Uniform Commercial Code termination statements on form UCC-3 (or the equivalent
form thereof)) acknowledging the satisfaction and termination of this Agreement,
and will duly assign, release, transfer and deliver to such Assignor (without
recourse and without any representation or warranty) all of the Collateral as
may be in the possession of the Collateral Agent and as has not theretofore been
sold or otherwise applied or released pursuant to this Agreement. As used in
this Agreement, "Termination Date" shall mean the date upon which the total
commitments under the Credit Agreements and all Interest Rate Protection
Agreements or Other Hedging Agreements have been terminated, no note under the
Credit Agreements is outstanding (and all loans thereunder have been repaid in
full), and all letters of credit issued under the SCIS Credit Agreement have
been terminated and all Obligations then owing have been paid in full.
(b) In the event that all or any part of the Collateral is sold,
conveyed or disposed of in connection with any form of asset disposition
permitted by the Credit Agreements or otherwise released, in whole or in part,
at the direction of the Required Secured Creditors and the proceeds of such
asset disposition or from such release are applied in accordance with, and to
the extent required by, the provisions of the Credit Agreements, such Collateral
will be sold or otherwise disposed of free and clear of the Liens created by
this Agreement and the Collateral Agent, at the request and expense of the
respective Assignor, will duly assign, release, transfer and deliver to such
Assignor (without recourse and without any representation or warranty) such of
the Collateral as is then being (or has been) so sold or released and has not
theretofore been released pursuant to this Agreement, it being understood and
agreed, however, that the Required Banks under, and as defined in, the SCIS
Credit Agreement may agree to release Collateral from the Liens created by the
Security Documents with an aggregate value of up to $1,000,000 in any fiscal
year of SCIS without the consent of the Caterair Bank Creditors.
(c) Notwithstanding anything contained in this Agreement to the
contrary, the Collateral Agent agrees (i) to fully release any or all of the
Collateral constituting Catering Assets (as defined in the American Airlines
Catering Agreement with Sky Chefs)
329
EXHIBIT H
Page 41
to the extent (but only to the extent) subject to the option granted in Section
9 of the American Airlines Catering Agreement upon receipt by the Collateral
Agent from American Airlines of the purchase price in cash as specified in
Section 9 of such American Airlines Catering Agreement with respect to such
Catering Assets and (ii) to deliver to American Airlines at least 10 days prior
written notice prior to any foreclosure action or other exercise of remedies in
respect of the Catering Assets referred to in preceding clause (i) and deliver
to American Airlines the letter required by clause (i)(y) of the first sentence
of Section 11(f) of such American Airlines Catering Agreement.
(d) At any time that an Assignor desires that the Collateral Agent
take any action to acknowledge or give effect to any release of Collateral
pursuant to the foregoing Section 11.8(a), (b) or (c), as the case may be, such
Assignor shall deliver to the Collateral Agent a certificate signed by a
principal executive officer of such Assignor stating that the release of the
respective Collateral is permitted pursuant to such Section 11.8(a), (b) or (c),
as the case may be.
(e) The Collateral Agent shall have no liability whatsoever to any
other Secured Creditor as a result of any release of Collateral by it in
accordance with this Section 11.8.
11.9. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
11.10. Severability. Any provision of this Agreement 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.
11.11. Additional Assignors. It is understood and agreed that any
Wholly-Owned Domestic Subsidiary of SCIS or Caterair Holdings that is required
to execute a counterpart of this Agreement after the date hereof pursuant to the
Credit Agreements shall automatically become an Assignor hereunder by executing
a counterpart hereof and delivering the same to the Collateral Agent.
* * *
330
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
Addresses:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ INTERNATIONAL
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ SERVICES, INC., as an
Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: Authorized Signatory
Taxpayer
I.D. No.: ▇▇-▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR INTERNATIONAL
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CORPORATION, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: Authorized Signatory
Taxpayer
I.D. No.: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SKY CHEFS, INC., as an
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: Authorized Signatory
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR INTERNATIONAL,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ INC. (II), as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: Authorized Signatory
Taxpayer
I.D. No. ▇▇-▇▇▇▇▇▇▇
331
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SKY CHEFS INTERNATIONAL
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ CORP., as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ SERVICES, INC.,
Wilmington, Delaware 19801-1622 as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ SERVICES
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ HOLDING CORPORATION,
as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ BETHESDA SERVICES, INC.,
Wilmington, Delaware 19801-1622 as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: Authorized Signatory
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
332
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Wilmington, Delaware 19801-1622 LIMITED,
as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: Authorized Signatory
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR CONSULTING
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ SERVICES CORPORATION,
as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ CATERERS, INC.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR ST. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ HOLDINGS CORPORATION,
as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
333
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, INC.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR AIRPORT
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ PROPERTIES, INC.,
as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SKY CHEFS ARGENTINE,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ INC.,
as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Treasurer
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR INTERNATIONAL
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ TRANSITION CORPORATION,
as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO ACCEPTANCE
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ CORP., as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
334
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CREDIT CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO EQUITY CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FINANCE CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FINANCE CORP.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ II, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
335
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CAPITAL CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FISCAL CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FUNDS CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CREDIT CORP.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ II, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FUNDS CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
336
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FISCAL CORP.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ II, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO EQUITY CORP.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ II, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CAPITAL CORP.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ II, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------
Title: President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
as Collateral Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
Title: Vice President
Taxpayer
I.D. No: ▇▇-▇▇▇▇▇▇▇
337
ANNEX A
to
AMENDED AND
RESTATED
SECURITY
AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES
AND OTHER RECORD LOCATIONS
SC INTERNATIONAL SERVICES, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
CATERAIR INTERNATIONAL CORPORATION
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SKY CHEFS, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
CATERAIR INTERNATIONAL, INC. (II)
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SKY CHEFS INTERNATIONAL CORP.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ARLINGTON SERVICES, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ARLINGTON SERVICES HOLDING CORPORATION
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
BETHESDA SERVICES, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
338
ANNEX A
to Security
Agreement
Page 2
CATERAIR NEW ZEALAND LIMITED
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
CATERAIR CONSULTING SERVICES CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
JFK CATERERS, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
CATERAIR ST. ▇▇▇▇▇▇ HOLDINGS CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
WESTERN AIRE CHEF, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
CATERAIR AIRPORT PROPERTIES, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SKY CHEFS ARGENTINE, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
CATERAIR INTERNATIONAL TRANSITION CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO ACCEPTANCE CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
339
ANNEX A
to Security
Agreement
Page 3
ONEX OHIO CREDIT CORP.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO EQUITY CORP.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO FINANCE CORP.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO FINANCE CORP. II
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO CAPITAL CORP.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO FISCAL CORP.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO FUNDS CORP.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO CREDIT CORP. II
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO FUNDS CORP. II
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
340
ANNEX A
to Security
Agreement
Page 4
ONEX OHIO FISCAL CORP. II
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO EQUITY CORP. II
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO CAPITAL CORP. II
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
341
ANNEX B
to
AMENDED AND
RESTATED
SECURITY
AGREEMENT
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATIONS
LOCATION OF PROPERTY/
COMPANY EQUIPMENT HELD
------- ---------------------
SC INTERNATIONAL SERVICES, INC. NONE
CATERAIR INTERNATIONAL CORPORATION SEE ATTACHED LIST FOR ENTRIES
ENTITLED "CATERAIR"
SKY CHEFS, INC. SEE ATTACHED LIST FOR ENTRIES,
ENTITLED "SKY CHEFS"
CATERAIR INTERNATIONAL, INC. (II) NONE
SKY CHEFS INTERNATIONAL CORP. NONE
ARLINGTON SERVICES, INC. NONE
ARLINGTON SERVICES HOLDING CORPORATION NONE
CATERAIR CONSULTING SERVICES CORPORATION NONE
JFK CATERERS, INC. NONE
CATERAIR ST. ▇▇▇▇▇▇ HOLDINGS CORPORATION NONE
WESTERN AIRE CHEF, INC. NONE
CATERAIR AIRPORT PROPERTIES, INC. NONE
SKY CHEFS ARGENTINE, INC. ADDRESS IN ARGENTINA: ▇▇▇▇▇▇▇▇
GENERAL MORILLAS S/N Y AUTOPISTA
AV. GVAL. RICCHIERI AEROPUERTO
EZEIZA ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
BETHESDA SERVICES, INC. NONE
CATERAIR NEW ZEALAND LIMITED NONE
CATERAIR INTERNATIONAL TRANSITION NONE
CORPORATION
ONEX OHIO ACCEPTANCE CORPORATION NONE
ONEX OHIO CREDIT CORP. NONE
ONEX OHIO EQUITY CORP. NONE
ONEX OHIO FINANCE CORP. NONE
ONEX OHIO FINANCE CORP. II NONE
ONEX OHIO CAPITAL CORP. NONE
ONEX OHIO FISCAL CORP. NONE
ONEX OHIO FUNDS CORP. NONE
342
ANNEX B
Page 2
ONEX OHIO CREDIT CORP. II NONE
ONEX OHIO FUNDS CORP. II NONE
ONEX OHIO FISCAL CORP. II NONE
ONEX OHIO EQUITY CORP. II NONE
ONEX OHIO CAPITAL CORP. II NONE
343
ANNEX B
Page 3
SKY CHEFS, INC.
Location Street Address Leased or Owned Type of Facility
-------- -------------- --------------- ----------------
Headquarters ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. Leased Corporate Offices
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Austin ▇▇▇▇ ▇. ▇▇ ▇/▇ St. Leased Flight Kithchen
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Austin ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. Leased ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Boston ▇▇▇▇▇ Int'l Airport Leased Flight Kitchen
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Chicago ▇▇▇ ▇▇▇▇▇ ▇▇. Leased Flight Kitchen
▇'▇▇▇▇ Int'l Airport
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Cincinnati Air Cargo Building Leased, but no Former Flight
West Service Road longer occupied by Kitchen
Greater Cincinnati Airport Sky Chefs
▇▇▇▇▇ County, KY
Cleveland Sky Chefs United Kitchen Leased Flight Kitchen
Cleveland ▇▇▇▇▇▇▇ Int'l ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Cleveland Cleveland ▇▇▇▇▇▇▇ Int'l Airport Leased Formerly a Flight
South Cargo Road Kitchen, but
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ closed and used
as a storage
facility now
Dallas/Fort Worth ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
Int'l ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dallas/Fort Worth ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
Domestic ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
344
ANNEX B
Page 4
Location Address Leased or Owned Type of Facility
-------- ------- --------------- ----------------
Dallas/Fort Worth ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. Leased, but not Former Flight
(DFN) ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ operated by Sky Kitchen
Chefs
Denver (New Airport) ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Lease under Flight Kitchen
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ negotiation
Detroit Building #534 Leased Flight Kitchen
Detroit Metro Airport
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
El Paso 6501 Convair Leased ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fort Lauderdale ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
Unit A
Ft. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Honolulu ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Honolulu ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Subleased by Sky Warehouse
Honolulu, HI Chefs to American
Pacific Transport
Co., Ltd.
Los Angeles ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Leased Flight Kitchen
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Miami ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Miami ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Milwaukee ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Owned Flight Kitchen
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Newark Newark Int'l Airport Leased Flight Kitchen
Building #▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
345
ANNEX B
Page 5
Location Address Leased or Owned Type of Facility
-------- ------- --------------- ----------------
Newark ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Leased Warehouse Space
Elizabeth, NJ
Nashville ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Nashville ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. Leased Formerly Flight
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Kitchen, but
closed and used
for storage now
New Orleans ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Leased Flight Kitchen
Kenner, LA 70062
New York Onex Investment Corp. Leased ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
New York Building #122 Leased Flight Kitchen
▇▇▇ ▇▇▇'▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
New York American Airlines Terminal Leased Restaurant
Building #57 Facilities
▇▇▇ ▇▇▇'▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
New York 156-06 - ▇▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. Leased Former Flight
Queens, NY Kitchen no
longer operated
by Sky Chefs
New York 182-20 150th Road Leased Warehouse Space
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
New York American Airlines Hangar #5 Leased Flight Kitchen
LaGuardia Airport
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Oklahoma City ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Owned Flight Kitchen
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
346
ANNEX B
Page 6
Location Address Leased or Owned Type of Facility
-------- ------- --------------- ----------------
Omaha ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. Leased Flight Kitchen
▇▇▇▇▇▇ Field
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phoenix ▇▇▇▇ ▇. ▇▇▇▇ ▇▇. Leased Flight Kitchen
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Portland Portland Int'l Airport Leased Flight Kitchen
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Raleigh-Durham ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇. Leased Flight Kitchen
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Raleigh-Durham Terminal C Leased Restaurant and
RDU Int'l Airport Retail Facilities
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
San Diego ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Leased Flight Kitchen
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
San Francisco ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Owned Flight Kitchen
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
San Francisco ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Owned Parking car
Burlingame, CA facility (leased to
Alamo Rent-A-
Car, Inc.)
▇▇▇▇▇▇▇ Air Force ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Leased Flight Kitchen
Base, Newburgh, NY ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Syracuse ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Leased Flight Kitchen
▇. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Storage
Space
Tucson ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. Leased Flight Kitchen
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tucson TowerGrille Leased Restaurant
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
347
ANNEX B
Page 7
Location Address Leased or Owned Type of Facility
-------- ------- --------------- ----------------
Tulsa Cargo Building Leased Flight Kitchen
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
348
ANNEX B
Page 8
LSG/USA CORPORATION
Location Address Leased or Owned Type of Facility
-------- ------- --------------- ----------------
Miami(1) ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
New York JFK Int'l. Airport Leased Flight Kitchen
Building 143
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
San Francisco(1) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------
(1) Managed by Sky Chefs.
349
ANNEX B
Page 9
LSG/SKY CHEFS
Street
Location Address Leased, Owned Type of Facility
-------- ------- or Managed ----------------
----------
Sacramento Metropolitan Airport Leased Flight Kitchen
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Reno ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ Leased Flight Kitchen
▇▇▇▇, ▇▇ ▇▇▇▇▇
Dallas/Ft. Worth ▇▇▇▇ ▇. ▇▇▇▇ Leased Flight Kitchen
P.O. Box 610072
Dallas/Ft. Worth Airport
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Atlanta ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Houston 4420 ▇▇▇▇▇▇ Bros. Road Leased Flight Kitchen
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
Avenue
Palm Beach Int'l Airport
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Seattle ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Anchorage 3830 International Airport Leased Flight Kitchen
Road
Western Air Freight Building
Anchorage, AL 99519
Kansas City ▇.▇. ▇▇▇ ▇▇▇▇▇ Leased Flight Kitchen
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Orlando ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
350
ANNEX B
Page 10
Street
Location Address Leased, Owned Type of Facility
-------- ------- or Managed ----------------
----------
Washington, D.C. Washington National Airport Leased Flight Kitchen
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Albuquerque Albuquerque International Leased Flight Kitchen
Airport
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tampa ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Rochester ▇.▇. ▇▇▇ ▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ International Airport Leased Flight Kitchen
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Palm Springs ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇. ▇ Leased Flight Kitchen
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
New Orleans New Orleans International Leased Flight Kitchen
Airport
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇
Miami ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
San Diego San Diego International Leased Flight Kitchen
Airport
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Las Vegas ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Leased Flight Kitchen
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Charleston ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Ft. Lauderdale ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
Ft. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
351
ANNEX B
Page 11
Street
Location Address Leased, Owned Type of Facility
-------- ------- or Managed ----------------
----------
Minneapolis ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Portland ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇ Leased Flight Kitchen
Portland International Airport
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Detroit Building 505 Leased Flight Kitchen
Detroit ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dulles International
Airport
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ft. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Leased Flight Kitchen
Ft. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phoenix ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Honolulu ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
352
ANNEX B
Page ▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Location Address Leased, Owned Type of Facility
-------- ------- or Managed ----------------
----------
Headquarters ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Leased Corporate Offices
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Charleston ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Owned Flight Kitchen
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
353
ANNEX B
Page 13
CATERAIR INTERNATIONAL, INC. (II)
Location Address Leased or Owned Type of Facility
-------- ------- --------------- ----------------
Austin ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Leased Flight Kitchen
Bldg. C, Ste. 420
Austin, Texas 78754
Baltimore Baltimore/Washington Int'l Leased Flight Kitchen
Airport
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Boston #1 Wood Island Park Leased Flight Kitchen
▇▇▇▇▇ International Airport
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Los Angeles ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
New York/ JFK International Airport Leased Flight Kitchen
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
New York/ ▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Leased Flight Kitchen
JFK ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
New York/ ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
La Guardia ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Oakland Oakland International Airport Leased Flight Kitchen
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Way
Building M-111
P.O. Box 14088
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ontario ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Philadelphia ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
354
ANNEX B
Page 14
Location Address Leased or Owned Type of Facility
-------- ------- --------------- ----------------
Salt Lake City AMF ▇▇▇ ▇▇▇▇▇ Leased Flight Kitchen
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ International Airport
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
San Francisco 50 ▇▇▇▇▇▇ Court Leased Flight Kitchen
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
San ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Santa ▇▇▇ ▇▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Leased Flight Kitchen
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
355
ANNEX C
to
AMENDED AND
RESTATED
SECURITY
AGREEMENT
LIST OF TRADE AND FICTITIOUS NAMES
SC INTERNATIONAL SERVICES, INC. NONE
CATERAIR INTERNATIONAL CORPORATION Marriott In-Flight Services
Fort Lauderdale Catering Company
[Caterair International Europe (used
by Caterair France, S.A.)]
SKY CHEFS, INC. LSG/Sky Chefs
LSG Lufthansa Service/Sky Chefs
Servcater (in Brazil)
Cateringpor (in Portugal)
CATERAIR INTERNATIONAL, INC. (II) NONE
SKY CHEFS INTERNATIONAL CORP. NONE
ARLINGTON SERVICES, INC. NONE
ARLINGTON SERVICES HOLDING CORPORATION NONE
BETHESDA SERVICES, INC. NONE
CATERAIR NEW ZEALAND LIMITED NONE
CATERAIR CONSULTING SERVICES CORPORATION NONE
JFK CATERERS, INC. NONE
CATERAIR ST. ▇▇▇▇▇▇ HOLDINGS CORPORATION NONE
WESTERN AIRE CHEF, INC. NONE
CATERAIR AIRPORT PROPERTIES, INC. NONE
SKY CHEFS ARGENTINE, INC. NONE
CATERAIR INTERNATIONAL TRANSITION NONE
CORPORATION
ONEX OHIO ACCEPTANCE CORPORATION NONE
ONEX OHIO CREDIT CORP. NONE
ONEX OHIO EQUITY CORP. NONE
356
ANNEX C
Page 2
ONEX OHIO FINANCE CORP. NONE
ONEX OHIO FINANCE CORP. II NONE
ONEX OHIO CAPITAL CORP. NONE
ONEX OHIO FISCAL CORP. NONE
ONEX OHIO FUNDS CORP. NONE
ONEX OHIO CREDIT CORP. II NONE
ONEX OHIO FUNDS CORP. II NONE
ONEX OHIO FISCAL CORP. II NONE
ONEX OHIO EQUITY CORP. II NONE
ONEX OHIO CAPITAL CORP. II NONE
357
ANNEX D
to
AMENDED AND
RESTATED
SECURITY
AGREEMENT
LIST OF MARKS
SKY CHEFS, INC.
NONE
SC INTERNATIONAL SERVICES, INC.
NONE
CATERAIR HOLDINGS CORPORATION
NONE
CATERAIR INTERNATIONAL CORPORATION
NONE
CATERAIR INTERNATIONAL, INC. (II)
NONE
SKY CHEFS INTERNATIONAL CORP.
NONE
ARLINGTON SERVICES HOLDING CORPORATION
NONE
358
ANNEX D
Page 2
ARLINGTON SERVICES, INC.
Trademark Registration Number Registration Date
--------- ------------------- -----------------
SKYCHEFS 1,081,378 1/3/78
The "Spork" 1,081,379 1/3/78
SKYCHEFS 1,081,380 1/3/78
BETHESDA SERVICES, INC.
Caterair 1,639,399 3/26/91
Caterair International 1,643,177 4/30/91
stylized aircraft graphic 1,666,254 11/26/91
CATERAIR NEW ZEALAND LIMITED
NONE
CATERAIR CONSULTING SERVICES CORPORATION
NONE
JFK CATERERS, INC.
NONE
CATERAIR ST. ▇▇▇▇▇▇ HOLDINGS CORPORATION
NONE
WESTERN AIRE CHEF, INC.
NONE
359
ANNEX D
Page 3
CATERAIR AIRPORT PROPERTIES, INC.
NONE
SKY CHEFS ARGENTINE, INC.
NONE
CATERAIR INTERNATIONAL TRANSITION CORPORATION
NONE
ONEX OHIO ACCEPTANCE CORPORATION
NONE
ONEX OHIO CREDIT CORP.
NONE
ONEX OHIO EQUITY CORP.
NONE
ONEX OHIO FINANCE CORP.
NONE
ONEX OHIO FINANCE CORP. II
NONE
ONEX OHIO CAPITAL CORP.
NONE
ONEX OHIO FISCAL CORP.
NONE
360
ANNEX D
Page 4
ONEX OHIO FUNDS CORP.
NONE
ONEX OHIO CREDIT CORP. II
NONE
ONEX OHIO FUNDS CORP. II
NONE
ONEX OHIO FISCAL CORP. II
NONE
ONEX OHIO EQUITY CORP. II
NONE
ONEX OHIO CAPITAL CORP. II
NONE
361
ANNEX E
to
AMENDED AND
RESTATED
SECURITY
AGREEMENT
LIST OF PATENTS AND APPLICATIONS
SC INTERNATIONAL SERVICES, INC. NONE
SKY CHEFS, INC. NONE
CATERAIR INTERNATIONAL CORPORATION NONE
CATERAIR INTERNATIONAL, INC. (II) NONE
SKY CHEFS INTERNATIONAL CORP. NONE
ARLINGTON SERVICES, INC. NONE
ARLINGTON SERVICES HOLDING CORPORATION NONE
BETHESDA SERVICES, INC. NONE
CATERAIR NEW ZEALAND LIMITED NONE
CATERAIR CONSULTING SERVICES CORPORATION NONE
JFK CATERERS, INC. NONE
CATERAIR ST. ▇▇▇▇▇▇ HOLDINGS CORPORATION NONE
WESTERN AIRE CHEF, INC. NONE
CATERAIR AIRPORT PROPERTIES, INC. NONE
SKY CHEFS ARGENTINE, INC. NONE
CATERAIR INTERNATIONAL TRANSITION NONE
CORPORATION
ONEX OHIO ACCEPTANCE CORPORATION NONE
ONEX OHIO CREDIT CORP. NONE
ONEX OHIO EQUITY CORP. NONE
362
ANNEX E
Page 2
ONEX OHIO FINANCE CORP. NONE
ONEX OHIO FINANCE CORP. II NONE
ONEX OHIO CAPITAL CORP. NONE
ONEX OHIO FISCAL CORP. NONE
ONEX OHIO FUNDS CORP. NONE
ONEX OHIO CREDIT CORP. II NONE
ONEX OHIO FUNDS CORP. II NONE
ONEX OHIO FISCAL CORP. II NONE
ONEX OHIO EQUITY CORP. II NONE
ONEX OHIO CAPITAL CORP. II NONE
363
ANNEX F
to
AMENDED AND
RESTATED
SECURITY
AGREEMENT
LIST OF COPYRIGHTS AND APPLICATIONS
SC INTERNATIONAL SERVICES, INC.
NONE
SKY CHEFS, INC.
Copyright Registration Number Registration Date
--------- ------------------- -----------------
▇▇▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6/18/64
▇▇▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6/11/64
CATERAIR INTERNATIONAL CORPORATION
NONE
CATERAIR INTERNATIONAL, INC. (II)
NONE
SKY CHEFS INTERNATIONAL CORP.
NONE
ARLINGTON SERVICES, INC.
NONE
ARLINGTON SERVICES HOLDING CORPORATION
NONE
364
ANNEX F
Page 2
BETHESDA SERVICES, INC.
NONE
CATERAIR NEW ZEALAND LIMITED
NONE
CATERAIR CONSULTING SERVICES CORPORATION
NONE
JFK CATERERS, INC.
NONE
CATERAIR ST. ▇▇▇▇▇▇ HOLDINGS CORPORATION
NONE
WESTERN AIRE CHEF, INC.
NONE
CATERAIR AIRPORT PROPERTIES, INC.
NONE
SKY CHEFS ARGENTINE, INC.
NONE
CATERAIR INTERNATIONAL TRANSITION CORPORATION
NONE
ONEX OHIO ACCEPTANCE CORPORATION
NONE
365
ANNEX F
Page 3
ONEX OHIO CREDIT CORP.
NONE
ONEX OHIO EQUITY CORP.
NONE
ONEX OHIO FINANCE CORP.
NONE
ONEX OHIO FINANCE CORP. II
NONE
ONEX OHIO CAPITAL CORP.
NONE
ONEX OHIO FISCAL CORP.
NONE
ONEX OHIO FUNDS CORP.
NONE
ONEX OHIO CREDIT CORP. II
NONE
ONEX OHIO FUNDS CORP. II
NONE
ONEX OHIO FISCAL CORP. II
NONE
366
ANNEX F
Page 4
ONEX OHIO EQUITY CORP. II
NONE
ONEX OHIO CAPITAL CORP. II
NONE
367
ANNEX G
to
AMENDED AND
RESTATED
SECURITY
AGREEMENT
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS AND PATENTS
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, [Name of Grantor], a __________ corporation (the
"Grantor") with principal offices at __________________________, hereby grants
to ▇▇▇▇▇▇ Guaranty Trust Company of New York as Collateral Agent, with principal
offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "Grantee"), a
security interest in (i) all of the Grantor's right, title and interest in and
to the United States trademarks, trademark registrations and trademark
applications (the "Marks") set forth on Schedule A attached hereto, (ii) all of
the Grantor's rights, title and interest in and to the United States patents
(the "Patents") set forth on Schedule B attached, in each case together with
(iii) all Proceeds (as such term is defined in the Security Agreement referred
to below) and products of the Marks and Patents, (iv) the goodwill of the
businesses with which the Marks are associated and (v) all causes of action
arising prior to or after the date hereof for infringement of any of the Marks
and Patents or unfair competition regarding the same.
THIS ASSIGNMENT is made to secure the satisfactory performance and
payment of all the Obligations of the Grantor, as such term is defined in the
Security Agreement among the Grantor, the other assignors from time to time
party thereto and the Grantee, dated as of September 29, 1995 and amended and
restated as of August 28, 1997 (as amended from time to time, the "Security
Agreement"). Upon the occurrence of the
368
ANNEX G
Page 2
Termination Date (as defined in the Security Agreement), the Grantee shall, upon
such satisfaction, execute, acknowledge, and deliver to the Grantor an
instrument in writing releasing the security interest in the Marks and Patents
acquired under this Assignment.
This Assignment has been granted in conjunction with the security
interest granted to the Grantee under the Security Agreement. The rights and
remedies of the Grantee with respect to the security interest granted herein are
without prejudice to, and are in addition to those set forth in the Security
Agreement, all terms and provisions of which are incorporated herein by
reference. In the event that any provisions of this Assignment are deemed to
conflict with the Security Agreement, the provisions of the Security Agreement
shall govern.
IN WITNESS WHEREOF, the undersigned have executed this Assignment as
of the ____ day of _________, ____.
[NAME OF GRANTOR], as Grantor
By
-----------------------------
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
as Collateral Agent, Grantee
By
-----------------------------
Title:
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me personally came
________ _________________ who, being by me duly sworn, did state as follows:
that [s]he is _______________ of [Name of Grantor], that [s]he is authorized to
execute the foregoing Assignment on behalf of said corporation and that [s]he
did so by authority of the Board of Directors of said corporation.
-------------------------
Notary Public
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me personally came
________ _____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of ▇▇▇▇▇▇ Guaranty Trust Company of
New York, that he is authorized to execute the foregoing Assignment on behalf of
said corporation and that he did so by authority of the Board of Directors of
said corporation.
----------------------------
Notary Public
371
SCHEDULE A
▇▇▇▇ REG. NO. REG. DATE
---- -------- ---------
372
SCHEDULE B
PATENT PATENT NO. ISSUE DATE
------ ---------- ----------
373
ANNEX H
to
AMENDED AND
RESTATED
SECURITY
AGREEMENT
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
WHEREAS, [Name of Assignor], a _______________ corporation (the
"Assignor"), having its chief executive office at
______________________________, _____________________, is the owner of all
right, title and interest in and to the United States copyrights and associated
United States copyright registrations and applications for registration set
forth in Schedule A attached hereto;
WHEREAS, ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Collateral
Agent, having its principal offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (the "Assignee"), desires to acquire a security interest in said
copyrights and copyright registrations and applications therefor; and
WHEREAS, the Assignor is willing to assign to the Assignee, and to
grant to the Assignee, a security interest in and lien upon the copyrights and
copyright registrations and applications therefor described above.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and subject to the terms and conditions of the
Security Agreement, dated as of September 29, 1995 amended and restated as of
August 28, 1997, made by the Assignor, the other assignors from time to time
party thereto and the Assignee (as amended from time to time, the "Security
Agreement"), the Assignor hereby assigns to the Assignee, and grants to the
Assignee, a security interest in the copyrights and copyright registrations and
applications therefor set forth in Schedule A attached hereto.
This Assignment has been granted in conjunction with the security
interest granted to the Assignee under the Security Agreement. The rights and
remedies of the Assignee with respect to the security interest granted herein
are without prejudice to, and are in addition to those set forth in the Security
Agreement, all terms and provisions of which are incorporated herein by
reference. In the event that any provisions of this
374
ANNEX H
Page 2
Assignment are deemed to conflict with the Security Agreement, the provisions of
the Security Agreement shall govern.
Executed at New York, New York, the __ day of ____________, ____.
[NAME OF ASSIGNOR], as Assignor
By
-----------------------------
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
as Collateral Agent, Assignee
By
-----------------------------
Title:
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On this __ day of ________, ____ before me personally came
_______________, who being duly sworn, did depose and say that [s]he is
___________________ of [Name of Assignor], that [s]he is authorized to execute
the foregoing Assignment on behalf of said corporation and that [s]he did so by
authority of the Board of Directors of said corporation.
-------------------------
Notary Public
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On this __ day of ________, ____ before me personally came
_______________, who being duly sworn, did depose and say that [s]he is
___________________ of ▇▇▇▇▇▇ Guaranty Trust Company of New York that [s]he is
authorized to execute the foregoing Assignment on behalf of said corporation and
that [s]he did so by authority of the Board of Directors of said corporation.
-------------------------
Notary Public
377
SCHEDULE A
U.S. COPYRIGHTS
REGISTRATION PUBLICATION
NUMBERS DATE COPYRIGHT TITLE
------------ ----------- ---------------
378
ANNEX I
to
SECURITY
AGREEMENT
[Conformed as Executed]
LOUISIANA ADDENDUM TO SECURITY AGREEMENT
THIS LOUISIANA ADDENDUM (the "Addendum") is made and entered into as of
the 28th day of August, 1997, among each of the undersigned, with each of
the undersigned having the taxpayer identification number set out in its
signature block below (each an "Assignor" and, together with any other entity
that becomes a party hereto pursuant to Section 11.11 of the Security Agreement
(as hereinafter defined), the "Assignors"), and ▇▇▇▇▇▇ Guaranty Trust Company of
New York, having a taxpayer identification number of ▇▇-▇▇▇▇▇▇▇, as the
Collateral Agent (the "Collateral Agent") for the benefit of the Secured
Creditors (as defined in the Security Agreement).
1. This Addendum supplements the Security Agreement dated as of September
29, 1995 and amended and restated as of August 28, 1997 by and among the
Assignors and the Collateral Agent for the benefit of the Secured Creditors (the
"Security Agreement"). This Addendum shall apply to each Assignor's Collateral
(as defined in the Security Agreement) and all proceeds thereof at all times
during which such Collateral or the proceeds thereof are located in Louisiana or
are otherwise subject to the application of Louisiana law in any respect (the
term "Louisiana Collateral" as used herein shall refer to all portions of the
Collateral and the proceeds thereof that are at any time located in the state of
Louisiana or are otherwise subject to Louisiana law at all times during which
such portions or proceeds thereof are located in Louisiana or are otherwise
subject to the application of Louisiana law).
2. The parties hereto recognize and agree that the security interest
granted by each Assignor to the Collateral Agent in the Louisiana Collateral
shall be subject to the provisions of Chapter 9 of the Louisiana Commercial Laws
(La. R.S. ▇▇.▇▇. 10:9-101, et seq.) and all other provisions of Louisiana law.
3. Contemporaneously with the execution of this Addendum, each Assignor
has completed and signed one or more appropriate Louisiana UCC-1 financing
statements with regard to the Louisiana Collateral and the proceeds thereof.
Each Assignor authorizes the Collateral Agent, at the Assignors' expense, to
file multiple originals, or photocopies, carbon copies or facsimile copies of
such Louisiana UCC-1 financing statements with the
379
ANNEX I
Page 2
appropriate filing officer or officers in the State of Louisiana, pursuant to
the provisions of Chapter 9 of the Louisiana Commercial Laws (La. R.S. ▇▇.▇▇.
10:9-101, et seq.).
4. Each Assignor hereby represents and warrants to the Collateral Agent
that their respective taxpayer identification numbers are correctly set out in
that Assignor's signature block in this Addendum. Each Assignor shall give the
Collateral Agent thirty (30) days notice prior to any change in each Assignor's
taxpayer identification number. In the event of any change in any Assignor's
taxpayer identification number, that Assignor will execute and file any new
financing statements or any other documents that are necessary or desirable to
preserve and continue the Collateral Agent's security interest in the Louisiana
Collateral under the Security Agreement and this Addendum within thirty (30)
days after such change.
5. Upon the occurrence of any Event of Default (as defined in the Security
Agreement), the Collateral Agent shall have the following rights and remedies
with respect to the Louisiana Collateral, which rights and remedies are in
addition to and are not in lieu or limitation of any other rights and remedies
that may be provided in the Security Agreement, under Chapter 9 of the Louisiana
Commercial Laws (La. R.S. ▇▇.▇▇. 10:9-101, et seq.), under the Uniform
Commercial Code of any state other than Louisiana, or at law or in equity
generally:
A. The Collateral Agent may cause the Louisiana Collateral, or any
part or parts thereof, to be immediately seized wherever found, and sold,
whether in term of court or in vacation, under ordinary or executory process, in
accordance with applicable Louisiana law, to the highest bidder for cash, with
or without appraisement, without the necessity of making additional demand, or
of notifying any Assignor, or placing any Assignor in default.
B. For purposes of foreclosure under Louisiana executory process
procedures, each Assignor confesses judgment and acknowledges to be indebted
unto and in favor of the Collateral Agent up to the full amount of each
Assignor's Obligations, in principal, interest, costs, expenses, attorneys' fees
and other fees and charges. To the extent permitted under applicable Louisiana
law, each Assignor additionally waives: (a) the benefit of appraisal as provided
in Articles 2332, 2336, 2723 and 2724 of the Louisiana Code of Civil Procedure
and all other laws with regard to appraisal upon judicial sale; (b) the demand
and three (3) days' delay as provided under Articles 2639 and 2721 of the
Louisiana Code of Civil Procedure; (c) the Notice of Seizure as provided under
Articles 2293 and 2721 of the Louisiana Code of Civil Procedure; (d) the three
(3) days' delay provided under Articles 2331 and 2722 of the Louisiana Code of
Civil Procedure; and (e) all other benefits provided under Articles 2331, 2722
and 2723 of the Louisiana Code of Civil Procedure and all other Articles not
specifically mentioned above.
380
ANNEX I
Page 3
C. Should any of the Louisiana Collateral be seized as an incident
to an action for the recognition or enforcement of the Obligations or the
Security Agreement and this Addendum, by executory process, sequestration,
attachment, writ of fieri facias or otherwise, each Assignor agrees that the
court issuing any such order shall, if requested by the Collateral Agent,
appoint the Collateral Agent or any person or entity named by the Collateral
Agent at the time such seizure is requested, or at any time thereafter, as
keeper of the Louisiana Collateral as provided under La. R.S. ▇▇.▇▇. 9:5136, et
seq. Each Assignor agrees to pay the reasonable fees of such keeper, which are
hereby fixed at $50.00 per hour per location, which compensation to the keeper
shall also be a part of the Obligation under the Security Agreement and this
Addendum.
D. Should it become necessary for the Collateral Agent to foreclose
against the Louisiana Collateral, all declarations of fact that are made under
an authentic act before a Notary Public in the presence of two witnesses, by a
person declaring such facts to lie within his or her knowledge, shall constitute
authentic evidence for purposes of executory process and also for purposes of
La. R.S. ss. 9:3509.1, La. R.S. ss. 9:3504(D)(6) and La. R.S. ss. 10:9-508, as
applicable.
6. ANYTHING TO THE CONTRARY CONTAINED IN THE SECURITY AGREEMENT
NOTWITHSTANDING, THE SECURITY INTERESTS IN THE LOUISIANA COLLATERAL GRANTED IN
THE SECURITY AGREEMENT, AND IN THIS ADDENDUM, AND THE REMEDIES OF THE SECURED
CREDITORS IN THE COURTS SITTING IN AND FOR THE STATE OF LOUISIANA WITH RESPECT
TO THE LOUISIANA COLLATERAL SHALL BE GOVERNED BY LOUISIANA LAW, WITH NEW YORK
LAW GOVERNING THE PROVISIONS OF THE SECURITY AGREEMENT, THE APPLICATION OF THE
SECURITY AGREEMENT TO THE COLLATERAL AND THE PROCEEDS THEREOF, AND ALL RIGHTS
AND OBLIGATIONS OF THE PARTIES THEREUNDER IN ALL OTHER RESPECTS. EACH OF THE
PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
7. This Addendum shall form a part of the Security Agreement for all
purposes, and, except as supplemented hereby, the terms of the Security
Agreement are ratified and shall remain in full force and effect. All
capitalized terms used herein and not otherwise defined will have the meanings
assigned to them in the Security Agreement.
381
IN WITNESS WHEREOF, the parties to the Security Agreement and this
Addendum have caused this Addendum to be executed by their duly authorized
officers as of the date first above written.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ INTERNATIONAL SERVICES, INC.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: Authorized Signatory
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR INTERNATIONAL
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CORPORATION, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: Authorized Signatory
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SKY CHEFS, INC., as an Assignor
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: Authorized Signatory
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR INTERNATIONAL,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ INC. (II), as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: Authorized Signatory
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SKY CHEFS INTERNATIONAL
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ CORP., as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
382
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ SERVICES, INC.,
Wilmington, Delaware 19801-1622 as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ SERVICES HOLDING
Wilmington, Delaware 19801-1622 CORPORATION, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ BETHESDA SERVICES, INC.,
Wilmington, Delaware 19801-1622 as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: Authorized Signatory
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ CATERAIR NEW ZEALAND
Wilmington, Delaware 19801-1622 LIMITED, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: Authorized Signatory
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR CONSULTING SERVICES
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ CORPORATION, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
383
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ CATERERS, INC.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR ST. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ HOLDINGS CORPORATION,
as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ WESTERN AIRE CHEF, INC.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR AIRPORT PROPERTIES,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ INC., as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ SKY CHEFS ARGENTINE,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ INC., as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
384
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR INTERNATIONAL
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ TRANSITION CORPORATION,
as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: Authorized Signatory
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO ACCEPTANCE
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ CORP., as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CREDIT CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO EQUITY CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FINANCE CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
385
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FINANCE CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CAPITAL CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FISCAL CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FUNDS CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CREDIT CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
386
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FUNDS CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FISCAL CORP.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ II, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO EQUITY CORP.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ II, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CAPITAL CORP.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ II, as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: President
in each case, with a copy to:
SC International Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
as Collateral Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President
387
EXHIBIT I-1
AMENDED AND RESTATED SUBSIDIARIES GUARANTY
AMENDED AND RESTATED GUARANTY, dated as of September 29, 1995 and
amended and restated as of August 28, 1997 (as amended, modified or supplemented
from time to time, this "Guaranty"), made by each of the undersigned guarantors
(each a "Guarantor," and together with any other entity that becomes a party
hereto pursuant to Section 24 hereof, the "Guarantors"). Except as otherwise
defined herein, capitalized terms used herein and defined in the SCIS Credit
Agreement (as defined below) or in the Caterair Credit Agreement (as defined
below), as the case may be, shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, Onex Food Services, Inc. ("OFSI"), SC International Services,
Inc. ("SCIS"), Caterair Holdings Corporation ("Caterair Holdings"), Caterair
International Corporation ("Caterair", and together with SCIS, the "Borrowers"),
various lenders from time to time party thereto (the "SCIS Banks"), Bankers
Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers (the "SCIS
Co-Arrangers"), Bankers Trust Company, as Syndication Agent, The Bank of New
York, as Co-Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent (together with any successor administrative agent, the
"SCIS Administrative Agent"), have entered into a Credit Agreement, dated as of
September 29, 1995 and amended and restated as of August 28, 1997, providing for
the making of loans to SCIS and the issuance of, and participation in, letters
of credit for the account of SCIS, as contemplated therein (as used herein, the
term "SCIS Credit Agreement" means the Credit Agreement described above in this
paragraph, as the same may be amended, modified, extended, renewed, replaced or
supplemented from time to time, and including any agreement extending the
maturity of, or restructuring all or any portion of the Indebtedness under such
agreement or any successor agreement) (the SCIS Banks, the SCIS Co-Arrangers and
the SCIS Administrative Agent are herein called the "SCIS Bank Creditors");
WHEREAS, SCIS, Caterair, various lenders from time to time party
thereto (the "Caterair Banks", and together with the SCIS Banks, the "Banks"),
Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers (the
"Caterair Co-Arrangers", and together with the SCIS Co-Arrangers, the
"Co-Arrangers"), Bankers Trust Company, as Syndication Agent, and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Administrative Agent (together with any
successor administrative agent, the "Caterair
388
EXHIBIT I-1
Page 2
Administrative Agent", and together with the SCIS Administrative Agent, the
"Administrative Agents"), have entered into a Term Loan Agreement, dated as of
August 28, 1997, providing for the making of loans to SCIS and Caterair as
contemplated therein (as used herein, the term "Caterair Credit Agreement" means
the Term Loan Agreement described above in this paragraph, as the same may be
amended, modified, extended, renewed, replaced, restated or supplemented from
time to time, and including any agreement extending the maturity of, or
restructuring all or any portion of the Indebtedness under such agreement or any
successor agreements, and the Caterair Credit Agreement, together with the SCIS
Credit Agreement, are herein called the "Credit Agreements") (the Caterair
Banks, the Caterair Co-Arrangers and the Caterair Administrative Agent are
herein called the "Caterair Bank Creditors", and together with the SCIS Bank
Creditors, are herein called the "Bank Creditors");
WHEREAS, SCIS, Caterair or one or more of their respective Subsidiaries
may at any time and from time to time enter into one or more Interest Rate
Protection Agreements or Other Hedging Agreements with one or more Banks or any
affiliate thereof (each such Bank or affiliate, even if the respective Bank
subsequently ceases to be a Bank under the applicable Credit Agreement for any
reason, together with such Bank's or affiliate's successors and assigns, if any,
collectively, the "Other Creditors," and together with the Bank Creditors and
the Collateral Agent, the "Secured Creditors");
WHEREAS, each Guarantor (other than Caterair) is a direct or indirect
Subsidiary of SCIS or Caterair;
WHEREAS, the Guarantors (other than Caterair) entered into a Guaranty,
dated as of September 29, 1995 (as amended, modified or supplemented to the date
hereof, the "Original Subsidiaries Guaranty");
WHEREAS, it is a condition to the making of loans and the issuance of
letters of credit under the Credit Agreements that each Guarantor shall have
executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of
loans and the issuance of letters of credit under the Credit Agreements and the
entering into of Interest Rate Protection Agreements or Other Hedging Agreements
and, accordingly, desires to execute this Guaranty in order to satisfy the
conditions described in the preceding paragraph and to amend and restate the
Original Subsidiaries Guaranty in its entirety in the form of this Guaranty;
389
EXHIBIT I-1
Page 3
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby makes the following representations and
warranties to the Secured Creditors and hereby covenants and agrees with each
Secured Creditor as follows:
1. Each Guarantor, jointly and severally, irrevocably, absolutely and
unconditionally guarantees: (i) to the SCIS Bank Creditors the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of (x) the principal of and interest on the notes issued by, and the loans made
to, SCIS under the SCIS Credit Agreement, and all reimbursement obligations and
unpaid drawings with respect to letters of credit issued under the SCIS Credit
Agreement and (y) all other obligations (including obligations which, but for
the automatic stay under Section 362(a) of the Bankruptcy Code, would become
due), liabilities and indebtedness owing by SCIS to the SCIS Bank Creditors
under the SCIS Credit Agreement or any other SCIS Credit Document (such term to
mean the "Credit Documents" as defined in the SCIS Credit Agreement) to which
SCIS is a party (including, without limitation, indemnities, fees and interest
thereon), whether now existing or hereafter incurred under, arising out of or in
connection with the SCIS Credit Agreement or any such other SCIS Credit Document
and the due performance and compliance by any Borrower with all of the terms,
conditions and agreements contained in the SCIS Credit Documents (all such
principal, interest, liabilities, indebtedness and obligations being herein
collectively called the "SCIS Credit Document Obligations"); (ii) to the
Caterair Bank Creditors the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of (x) the principal of and
interest on the notes issued by, and the loans made to, SCIS and Caterair under
the Caterair Credit Agreement and (y) all other obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), liabilities and indebtedness owing by SCIS
and Caterair to the Caterair Bank Creditors under the Caterair Credit Agreement
or any other Caterair Credit Document (such term to mean the "Credit Documents"
as defined in the Caterair Credit Agreement, and the Caterair Credit Documents,
together with the SCIS Credit Documents, are referred to herein as the "Credit
Documents") to which Caterair or SCIS is a party (including, without limitation,
indemnities, fees and interest thereon), whether now existing or hereafter
incurred under, arising out of or in connection with the Caterair Credit
Agreement or any such other Caterair Credit Document and the due performance and
compliance by SCIS and Caterair with all of the terms, conditions and agreements
contained in the Caterair Credit Documents (all such principal, interest,
liabilities, indebtedness and obligations being herein collectively called the
"Caterair Credit Document Obligations"); and (iii) to each Other Creditor the
full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all obligations (including obligations which, but
for the automatic stay under Section 362(a) of the Bankruptcy Code, would become
due), liabilities and indebtedness owing by any Borrower
390
EXHIBIT I-1
Page 4
or any Subsidiary of such Borrower under any Interest Rate Protection Agreement
or Other Hedging Agreement, whether now in existence or hereafter arising, and
the due performance and compliance by any Borrower or such Subsidiary with all
of the terms, conditions and agreements contained in the Interest Rate
Protection Agreements or Other Hedging Agreements (all such obligations,
liabilities and indebtedness being herein collectively called the "Other
Obligations," and together with the Credit Document Obligations, the "Guaranteed
Obligations"). Each Guarantor understands, agrees and confirms that the Secured
Creditors may enforce this Guaranty up to the full amount of the Guaranteed
Obligations against such Guarantor without proceeding against any other
Guarantor, any Borrower, against any security for the Guaranteed Obligations, or
under any other guaranty covering all or a portion of the Guaranteed
Obligations. For purposes of this Guaranty, the term "Guarantor" as applied to
Caterair shall refer to Caterair as a guarantor of indebtedness incurred by
SCIS, as opposed to indebtedness directly incurred by it.
2. Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment of any and
all Guaranteed Obligations whether or not due or payable by any Borrower or any
Subsidiary thereof upon the occurrence in respect of such Borrower or any such
Subsidiary of any of the events of the type specified in Section 10.05 of the
SCIS Credit Agreement, and unconditionally and irrevocably, jointly and
severally, promises to pay such Guaranteed Obligations to the Secured Creditors,
or order, on demand, in legal tender of the United States. This Guaranty shall
constitute a guaranty of payment, and not of collection.
3. The liability of each Guarantor hereunder is primary, absolute and
unconditional and is exclusive and independent of any security for or other
guaranty of the indebtedness of any Borrower or any Subsidiary thereof whether
executed by such Guarantor, any other Guarantor, any other guarantor or by any
other party, and the liability of each Guarantor hereunder shall not be affected
or impaired by any circumstance or occurrence whatsoever (other than the
indefeasible satisfaction in full in cash of the Guaranteed Obligations),
including, without limitation: (a) any direction as to application of payment by
any Borrower or any Subsidiary thereof or by any other party, (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the Guaranteed Obligations, (c) any payment on or in
reduction of any such other guaranty or undertaking, (d) any dissolution,
termination or increase, decrease or change in personnel by any Borrower or any
Subsidiary thereof, (e) any payment made to any Secured Creditor on the
indebtedness which any Secured Creditor repays any Borrower or any Subsidiary
thereof pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Guarantor waives any
right to the deferral or modification of its obligations hereunder by
391
EXHIBIT I-1
Page 5
reason of any such proceeding, (f) any action or inaction by the Secured
Creditors as contemplated in Section 6 hereof or (g) any invalidity,
irregularity or unenforceability of all or any part of the Guaranteed
Obligations or of any security therefor.
4. The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor, any other guarantor, any Borrower or any
Subsidiary thereof, and a separate action or actions may be brought and
prosecuted against each Guarantor whether or not action is brought against any
other Guarantor, any other guarantor, any Borrower or any Subsidiary thereof and
whether or not any other Guarantor, any other guarantor, any Borrower or any
Subsidiary thereof be joined in any such action or actions. Each Guarantor
waives, to the fullest extent permitted by law, the benefits of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by any Borrower or any Subsidiary thereof or other circumstance which
operates to toll any statute of limitations as to such Borrower or any such
Subsidiary shall operate to toll the statute of limitations as to each
Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this Guaranty
and notice of any liability to which it may apply, and waives promptness,
diligence, presentment, demand of payment, protest, notice of dishonor or
nonpayment of any such liabilities, suit or taking of other action by any
Administrative Agent or any other Secured Creditor against, and any other notice
to, any party liable thereon (including such Guarantor, any other Guarantor, any
other guarantor, any Borrower or any Subsidiary thereof).
6. Any Secured Creditor may at any time and from time to time without
the consent of, or notice to, any Guarantor, without incurring responsibility to
such Guarantor, without impairing or releasing the obligations of such Guarantor
hereunder, upon or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew or alter, any of the Guaranteed
Obligations (including any increase or decrease in the rate of interest
thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to
the Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any
392
EXHIBIT I-1
Page 6
liabilities (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against any
Borrower, any other Credit Party, any Subsidiary thereof or otherwise act
or refrain from acting;
(d) release or substitute any one or more endorsers, Guarantors, other
guarantors, any Borrower, any Subsidiary thereof or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of any Borrower or any Subsidiary thereof to
creditors of such Borrower or such Subsidiary other than the Secured
Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of any Borrower or any Subsidiary thereof to the
Secured Creditors regardless of what liabilities of such Borrower or such
Subsidiary remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, any of the Interest Rate Protection Agreements or Other Hedging
Agreements, the Credit Documents or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement any of the
Interest Rate Protection Agreements or Other Hedging Agreements, the Credit
Documents or any of such other instruments or agreements;
(h) act or fail to act in any manner referred to in this Guaranty which
may deprive such Guarantor of its right to subrogation against any Borrower
or any Subsidiary thereof to recover full indemnity for any payments made
pursuant to this Guaranty; and/or
(i) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
such Guarantor from its liabilities under this Guaranty.
7. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any
Secured Creditor in exercising
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any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein expressly specified
are cumulative and not exclusive of any rights or remedies which any Secured
Creditor would otherwise have. No notice to or demand on any Guarantor in any
case shall entitle such Guarantor to any other further notice or demand in
similar or other circumstances or constitute a waiver of the rights of any
Secured Creditor to any other or further action in any circumstances without
notice or demand. It is not necessary for any Secured Creditor to inquire into
the capacity or powers of any Borrower or any Subsidiary thereof or the
officers, directors, partners or agents acting or purporting to act on its
behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
8. Any indebtedness of any Borrower or any Subsidiary thereof now or
hereafter held by any Guarantor is hereby subordinated to the indebtedness of
such Borrower or such Subsidiary to the Secured Creditors, and such indebtedness
of such Borrower or such Subsidiary to any Guarantor, if any Administrative
Agent, after the occurrence and during the continuance of an Event of Default,
so requests, shall be collected, enforced and received by such Guarantor as
trustee for the Secured Creditors and be paid over to the Secured Creditors on
account of the indebtedness of such Borrower or such Subsidiary to the Secured
Creditors, but without affecting or impairing in any manner the liability of
such Guarantor under the other provisions of this Guaranty. Without limiting the
generality of the foregoing, each Guarantor hereby agrees with the Secured
Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Guaranty (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
9. (a) Each Guarantor waives any right (except as shall be required by
applicable law and cannot be waived) to require the Secured Creditors to: (i)
proceed against any Borrower, any Subsidiary thereof, any other Guarantor, any
other guarantor of the Guaranteed Obligations or any other party; (ii) proceed
against or exhaust any security held from any Borrower, any Subsidiary thereof,
any other Guarantor, any other guarantor of the Guaranteed Obligations or any
other party; or (iii) pursue any other remedy in the Secured Creditors' power
whatsoever. Each Guarantor waives any defense based on or arising out of any
defense of any Borrower, any Subsidiary thereof, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party other than payment in
full of the Guaranteed Obligations, including, without limitation, any defense
based on or arising out of the disability of any Borrower, any Subsidiary
thereof, any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party, or the
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unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of any Borrower or any
Subsidiary thereof other than payment in full of the Guaranteed Obligations. The
Secured Creditors may, at their election, foreclose on any security held by the
Administrative Agent, the Collateral Agent or the other Secured Creditors by one
or more judicial or nonjudicial sales, whether or not every aspect of any such
sale is commercially reasonable, or exercise any other right or remedy the
Secured Creditors may have against any Borrower or any Subsidiary thereof or any
other party, or any security, without affecting or impairing in any way the
liability of any Guarantor hereunder except to the extent the Guaranteed
Obligations have been paid in full. Each Guarantor waives any defense arising
out of any such election by the Secured Creditors, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of such Guarantor against any Borrower or any Subsidiary
thereof or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
indebtedness. Each Guarantor assumes all responsibility for being and keeping
itself informed of each Borrower's and each of its Subsidiary's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks which such Guarantor assumes and incurs hereunder, and agrees that the
Secured Creditors shall have no duty to advise any Guarantor of information
known to them regarding such circumstances or risks.
(c) Each Guarantor hereby acknowledges and affirms that it understands
that to the extent the Guaranteed Obligations are secured by Real Property
located in California, such Guarantor shall be liable for the full amount of the
liability hereunder notwithstanding the foreclosure on such Real Property by
trustee sale or any other reason impairing such Guarantor's or any Secured
Creditor's right to proceed against any Borrower or any other guarantor of the
Guaranteed Obligations. In accordance with Section 2856 of the California Civil
Code, each Guarantor hereby waives:
(i) all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become
available to such Guarantor by reason of Sections 2787 to 2855, inclusive,
2899 and 3433 of the California Civil Code;
(ii) all rights and defenses that such Guarantor may have because the
Guaranteed Obligations are secured by Real Property located in California.
This
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means, among other things: (A) the Secured Creditors may collect from each
Guarantor without first foreclosing on any real or personal property
collateral pledged by any Borrower; and (B) if the Secured Creditors
foreclose on any Real Property collateral pledged by any Borrower, (1) the
amount of the Guaranteed Obligations may be reduced only by the price for
which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price, and (2) the Secured Creditors
may collect from each Guarantor even if the Secured Creditors, by
foreclosing on the Real Property collateral, have destroyed any right such
Guarantor may have to collect from such Borrower. This is an unconditional
and irrevocable waiver of any rights and defenses each Guarantor may have
because the Guaranteed Obligations are secured by Real Property. These
rights and defenses include, but are not limited to, any rights or defenses
based upon Section 580a, 580b, 580d or 726 of the California Code of Civil
Procedure; and
(iii) all rights and defenses arising out of an election of remedies
by the Secured Creditors, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for the Guaranteed
Obligations, has destroyed such Guarantor's rights of subrogation and
reimbursement against any Borrower by the operation of Section 580d of the
Code of Civil Procedure or otherwise.
Each Guarantor warrants and agrees that each of the waivers set forth above is
made with full knowledge of its significance and consequences and that if any of
such waivers are determined to be contrary to any applicable law or public
policy, such waivers shall be effective only to the maximum extent permitted by
law.
10. The Secured Creditors agree that this Guaranty may be enforced only
by the action of any Administrative Agent or the Collateral Agent, in each case
acting upon the instructions of the Required Secured Creditors (as defined in
the Security Agreement) and that no other Secured Creditors shall have any right
individually to seek to enforce or to enforce this Guaranty or to realize upon
the security to be granted by the Security Documents, it being understood and
agreed that such rights and remedies may be exercised by each Administrative
Agent or the Collateral Agent for the benefit of the Secured Creditors upon the
terms of this Guaranty and the Security Documents. The Secured Creditors further
agree that this Guaranty may not be enforced against any director, officer,
employee, or stockholder of any Guarantor (except to the extent such stockholder
is also a Guarantor hereunder).
11. In order to induce the Banks to make loans and issue or participate
in letters of credit pursuant to the Credit Agreements, and in order to induce
the Other
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Creditors to execute, deliver and perform the Interest Rate Protection
Agreements or Other Hedging Agreements, each Guarantor represents, warrants and
covenants that:
(a) Such Guarantor (i) is a duly organized and validly existing
corporation in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority to own its
property and assets and to transact the business in which it is engaged and
presently proposes to engage and (iii) is duly qualified and is authorized
to do business and is in good standing in each jurisdiction where the
conduct of its business requires such qualification except for failures to
be so qualified which, individually or in the aggregate, could not
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of each Borrower and its Subsidiaries taken as a
whole.
(b) Such Guarantor has the corporate power and authority to execute,
deliver and perform the terms and provisions of this Guaranty and each
other Document to which it is a party and has taken all necessary corporate
action to authorize the execution, delivery and performance by it of this
Guaranty and each such other Document. Such Guarantor has duly executed and
delivered this Guaranty and each other Document to which it is a party, and
this Guaranty and each such other Document constitutes the legal, valid and
binding obligation of such Guarantor enforceable in accordance with its
terms, except to the extent that the enforceability hereof or thereof may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity
or at law).
(c) Neither the execution, delivery or performance by such Guarantor
of this Guaranty or any other Document to which it is a party, nor
compliance by it with the terms and provisions hereof and thereof, will (i)
contravene any provision of any applicable law, statute, rule or regulation
or any applicable order, writ, injunction or decree of any court or
governmental instrumentality, (ii) conflict with or result in any breach of
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien (except pursuant to the Security
Documents and the Subordinated Intercompany Security Agreement) upon any of
the property or assets of such Guarantor or any of its Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, loan
agreement, credit agreement, or any other material agreement, contract or
instrument to which such Guarantor or any of its Subsidiaries is a party or
by which it or any of its property or assets is bound or to
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which it may be subject or (iii) violate any provision of the certificate
of incorporation or by-laws (or equivalent organizational documents) of
such Guarantor or any of its Subsidiaries.
(d) No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with (except as have been obtained
or made), or exemption by, any governmental or public body or authority, or
any subdivision thereof, is required to authorize, or is required for, (i)
the execution, delivery and performance of this Guaranty by such Guarantor
or any other Document to which such Guarantor is a party or (ii) the
legality, validity, binding effect or enforceability of this Guaranty or
any other Document to which such Guarantor is a party.
(e) There are no actions, suits or proceedings pending or threatened
(i) with respect to this Guaranty or any other Document to which such
Guarantor is a party or (ii) with respect to such Guarantor that could
reasonably be expected to materially and adversely affect (a) the business,
operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of any Borrower and its Subsidiaries taken as a
whole or (b) the rights or remedies of the Secured Creditors hereunder or
under the other Credit Documents to which such Guarantor is a party or the
ability of such Guarantor to perform its respective obligations to the
Secured Creditors hereunder and under the other Credit Documents to which
it is a party.
12. Each Guarantor covenants and agrees that on and after the
Restatement Effective Date and until the Termination Date (as defined in the
Security Agreement) has occurred and all Guaranteed Obligations have been paid
in full, such Guarantor will comply, and will cause each of its Subsidiaries to
comply, with all of the applicable provisions, covenants and agreements
contained in the Credit Agreements, and will take, or will refrain from taking,
as the case may be, all actions that are necessary to be taken or not taken so
that it is not in violation of any provision, covenant or agreement contained in
the Credit Agreements, and so that no Default or Event of Default, is caused by
the actions of such Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay all
reasonable out-of-pocket costs and expenses of the Administrative Agents and the
Collateral Agent in connection with any amendment, waiver or consent relating
hereto and of the Administrative Agents, the Collateral Agent and each other
Secured Creditor in connection with any enforcement of this Guaranty (including
in each case, without limitation, the reasonable fees and disbursements of
counsel employed by each Secured Creditor).
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14. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Secured Creditors
and their successors and assigns.
15. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of each
Guarantor directly affected thereby and with the written consent of the Required
Secured Creditors; provided, that any change, waiver, modification or variance
affecting the rights and benefits of a single Class (as defined below) of
Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Creditors (as defined
below) of such Class of Secured Creditors (it being understood that the addition
or release of any Guarantor hereunder shall not constitute a change, waiver,
discharge or termination affecting any Guarantor other than the Guarantor so
added or released). For the purpose of this Guaranty the term "Class" shall mean
each class of Secured Creditors, i.e., whether (i) the SCIS Bank Creditors as
holders of the SCIS Credit Document Obligations, (ii) the Caterair Bank
Creditors as holders of the Caterair Credit Document Obligations or (iii) the
Other Creditors as the holders of the Other Obligations. For the purpose of this
Guaranty, the term "Requisite Creditors" of any Class shall mean (i) with
respect to the SCIS Credit Document Obligations, the Required Banks under, and
as defined in, the SCIS Credit Agreement (or to the extent required by Section
13.12 of the SCIS Credit Agreement, with the written consent of each SCIS Bank),
(ii) with respect to the Caterair Credit Document Obligations the Required Banks
under, and as defined in, the Caterair Credit Agreement (or to the extent
required by Section 11.12 of the Caterair Credit Agreement, with the written
consent of each Caterair Bank) and (iii) with respect to the Other Obligations,
the holders of at least a majority of all obligations outstanding from time to
time under the Interest Rate Protection or Other Hedging Agreements.
16. Each Guarantor acknowledges that an executed (or conformed) copy of
each of the Credit Documents and Interest Rate Protection Agreements or Other
Hedging Agreements has been made available to its principal executive officers
and such officers are familiar with the contents thereof.
17. In addition to any rights now or hereafter granted under applicable
law (including, without limitation, Section 151 of the New York Debtor and
Secured Creditor Law) and not by way of limitation of any such rights, upon the
occurrence and during the continuance of an Event of Default (such term to mean
and include any "Event of Default" as defined in either Credit Agreement or any
payment default under any Interest Rate Protection Agreement or Other Hedging
Agreement continuing after any applicable grace period), each Secured Creditor
is hereby authorized, at any time or from time to time, without notice to any
Guarantor or to any other Person, any such notice being expressly
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waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by such Secured
Creditor to or for the credit or the account of such Guarantor, against and on
account of the obligations and liabilities of such Guarantor to such Secured
Creditor under this Guaranty, irrespective of whether or not such Secured
Creditor shall have made any demand hereunder and although said obligations,
liabilities, deposits or claims, or any of them, shall be contingent or
unmatured. Notwithstanding anything to the contrary contained in this Section
17, no Secured Creditor shall exercise any such right of set-off without the
prior written consent of either Administrative Agent or the Required Secured
Creditors so long as the Guaranteed Obligations shall be secured by any real
property located in the State of California, it being understood and agreed,
however, that this sentence is for the sole benefit of the Secured Creditors and
may be amended, modified or waived in any respect by the Required Secured
Creditors without the requirement of prior notice to or consent by any Credit
Party and does not constitute a waiver of any rights against any Credit Party or
against any Collateral.
18. All notices, requests, demands or other communications pursuant
hereto shall be deemed to have been duly given or made when delivered to the
Person to which such notice, request, demand or other communication is required
or permitted to be given or made under this Guaranty, addressed to such party at
(i) in the case of any Bank Creditor, as provided in the applicable Credit
Agreement, (ii) in the case of any Guarantor, at its address set forth opposite
its signature below and (iii) in the case of any Other Creditor, at such address
as such Other Creditor shall have specified in writing to the Guarantors; or in
any case at such other address as any of the Persons listed above may hereafter
notify the others in writing.
19. If claim is ever made upon any Secured Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected by such payee
with any such claimant (including any Borrower), then and in such event each
Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon such Guarantor, notwithstanding any revocation hereof or
other instrument evidencing any liability of any Borrower, and such Guarantor
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED
CREDITORS AND OF THE UNDERSIGNED HEREUNDER
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SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK. Any legal action or proceeding with respect to this Guaranty or any
other Credit Document to which any Guarantor is a party may be brought in the
courts of the State of New York or of the United States of America for the
Southern District of New York, and, by execution and delivery of this Guaranty,
each Guarantor hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Guarantor hereby further irrevocably waives any claim that any such
court lacks personal jurisdiction over such Guarantor, and agrees not to plead
or claim in any legal action or proceeding with respect to this Guaranty or any
other Credit Document to which such Guarantor is a party brought in any of the
aforesaid courts that any such court lacks personal jurisdiction over such
Guarantor. Each Guarantor further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
such Guarantor at its address set forth opposite its signature below, such
service to become effective 30 days after such mailing. Each Guarantor hereby
irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other Credit Document to which such Guarantor
is a party that such service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the Secured Creditors to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against each Guarantor in any other jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the fullest extent
permitted by applicable law) any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Guaranty or any other Credit Document to which
such Guarantor is a party brought in the courts referred to in clause (a) above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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21. In the event that all of the capital stock of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with the
requirements of the Credit Agreements (or such sale or other disposition has
been approved in writing by the Required Secured Creditors) and the proceeds of
such sale, disposition or liquidation are applied in accordance with the
provisions of the Credit Agreements, to the extent applicable, such Guarantor
shall upon consummation of such sale or other disposition be released from this
Guaranty automatically and without further action and this Guaranty shall, as to
each such Guarantor or Guarantors, terminate, and have no further force or
effect (it being understood and agreed that the sale of one or more Persons that
own, directly or indirectly, all of the capital stock or partnership interests
of any Guarantor shall be deemed to be a sale of such Guarantor for the purposes
of this Section 21).
22. This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Guarantors and the Administrative
Agents.
23. All payments made by any Guarantor hereunder will be made without
setoff, counterclaim or other defense and on the same basis as payments are made
by the applicable Borrower under Sections 4.03 and 4.04 of the SCIS Credit
Agreement or Sections 3.03 and 3.04 of the Caterair Credit Agreement, as the
case may be.
24. It is understood and agreed that any Wholly-Owned Domestic
Subsidiary of SCIS or Caterair Holdings that is required to execute a
counterpart of this Guaranty after the date hereof pursuant to the Credit
Agreements shall automatically become a Guarantor hereunder by executing a
counterpart hereof and delivering the same to the Administrative Agents.
25. At any time a payment in respect of the Guaranteed Obligations is
made under this Guaranty, the right of contribution of each Guarantor against
each other Guarantor shall be determined as provided in the immediately
following sentence, with the right of contribution of each Guarantor to be
revised and restated as of each date on which a payment (a "Relevant Payment")
is made on the Guaranteed Obligations under this Guaranty. At any time that a
Relevant Payment is made by a Guarantor that results in the aggregate payments
made by such Guarantor in respect of the Guaranteed Obligations to and including
the date of the Relevant Payment exceeding such Guarantor's Contribution
Percentage (as defined below) of the aggregate payments made by all Guarantors
in respect of the Guaranteed Obligations to and including the date of the
Relevant Payment (such excess, the "Aggregate Excess Amount"), each such
Guarantor shall have a right of
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contribution against each other Guarantor who has made payments in respect of
the Guaranteed Obligations to and including the date of the Relevant Payment in
an aggregate amount less than such other Guarantor's Contribution Percentage of
the aggregate payments made to and including the date of the Relevant Payment by
all Guarantors in respect of the Guaranteed Obligations (the aggregate amount of
such deficit, the "Aggregate Deficit Amount") in an amount equal to (x) a
fraction the numerator of which is the Aggregate Excess Amount of such Guarantor
and the denominator of which is the Aggregate Excess Amount of all Guarantors
multiplied by (y) the Aggregate Deficit Amount of such other Guarantor. A
Guarantor's right of contribution pursuant to the preceding sentences shall
arise at the time of each computation, subject to adjustment to the time of any
subsequent computation; provided, that no Guarantor may take any action to
enforce such right until the Guaranteed Obligations have been paid in full and
the Termination Date (as defined in the Security Agreement) has occurred, it
being expressly recognized and agreed by all parties hereto that any Guarantor's
right of contribution arising pursuant to this Section 25 against any other
Guarantor shall be expressly junior and subordinate to such other Guarantor's
obligations and liabilities in respect of the Guaranteed Obligations and any
other obligations owing under this Guaranty. As used in this Section 25: (i)
each Guarantor's "Contribution Percentage" shall mean the percentage obtained by
dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y)
the aggregate Adjusted Net Worth of all Guarantors; (ii) the "Adjusted Net
Worth" of each Guarantor shall mean the greater of (x) the Net Worth (as defined
below) of such Guarantor and (y) zero; and (iii) the "Net Worth" of each
Guarantor shall mean the amount by which the fair salable value of such
Guarantor's assets on the date of any Relevant Payment exceeds its existing
debts and other liabilities (including contingent liabilities, but without
giving effect to any Guaranteed Obligations arising under this Guaranty or
under, or in respect of, the Senior Subordinated Notes or any other issue of
subordinated Indebtedness) on such date. All parties hereto recognize and agree
that, except for any right of contribution arising pursuant to this Section 25,
each Guarantor who makes any payment in respect of the Guaranteed Obligations
shall have no right of contribution or subrogation against any other Guarantor
in respect of such payment until all of the Guaranteed Obligations have been
irrevocably paid in full in cash. Each of the Guarantors recognizes and
acknowledges that the rights to contribution arising hereunder shall constitute
an asset in favor of the party entitled to such contribution. In this
connection, each Guarantor has the right to waive its contribution right against
any Guarantor to the extent that after giving effect to such waiver such
Guarantor would remain solvent, in the determination of the Required Secured
Creditors.
26. Each Guarantor hereby confirms that it is its intention that this
Guaranty not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Code, the Uniform Fraudulent Conveyance Act or any similar Federal or
state law. To effectuate the foregoing intention, each Guarantor and each
Secured Creditor hereby
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irrevocably agrees that the Guaranteed Obligations guaranteed by such Guarantor
shall be limited to such amount as will, after giving effect to such maximum
amount and all other (contingent or otherwise) liabilities of such Guarantor
that are relevant under such laws (excluding liabilities in respect of the
Senior Subordinated Notes and any other issue of subordinated Indebtedness), and
after giving effect to any rights to contribution pursuant to any agreement
providing for an equitable contribution among such Guarantor and the other
Guarantors, result in the Guaranteed Obligations of such Guarantor in respect of
such maximum amount not constituting a fraudulent transfer or conveyance.
* * *
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
Addresses:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SKY CHEFS, INC., as a Guarantor
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By: _____________________________________
Name:
Title:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR INTERNATIONAL
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CORPORATION, as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR INTERNATIONAL, INC. (II),
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SKY CHEFS INTERNATIONAL CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
405
EXHIBIT I-1
Page 19
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ SERVICES, INC.,
Wilmington, Delaware 19801-1622 as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ SERVICES HOLDING
Wilmington, Delaware 19801-1622 CORPORATION, as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ BETHESDA SERVICES, INC.,
Wilmington, Delaware 19801-1622 as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ CATERAIR NEW ZEALAND
Wilmington, Delaware 19801-1622 LIMITED, as a Guarantor
By: _____________________________________
Name:
Title:
406
EXHIBIT I-1
Page 20
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR CONSULTING SERVICES
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ CORPORATION,
as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ CATERERS, INC.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR ST. ▇▇▇▇▇▇ HOLDINGS
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ CORPORATION,
as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, INC.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR AIRPORT PROPERTIES, INC.,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
407
EXHIBIT I-1
Page 21
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SKY CHEFS ARGENTINE, INC.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CATERAIR INTERNATIONAL
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ TRANSITION CORPORATION
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO ACCEPTANCE CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CREDIT CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO EQUITY CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
408
EXHIBIT I-1
Page 22
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FINANCE CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FINANCE CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CAPITAL CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FISCAL CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FUNDS CORP.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
409
EXHIBIT I-1
Page 23
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CREDIT CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FUNDS CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO FISCAL CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO EQUITY CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
410
EXHIBIT I-1
Page 24
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ONEX OHIO CAPITAL CORP. II,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ as a Guarantor
By: _____________________________________
Name:
Title:
in each case, with a copy to:
SC International Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Accepted and Agreed to:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
as Administrative Agent and,
Collateral Agent
By: _____________________________________
Name:
Title:
411
EXHIBIT I-2
AMENDED AND RESTATED DESIGNATED ONEX SUB GUARANTY
AMENDED AND RESTATED GUARANTY, dated as of January 1, 1997 and
amended and restated as of August 28, 1997 (as amended, modified or supplemented
from time to time, this "Guaranty"), made by ONEX OFSI HOLDINGS INC., an Ontario
corporation (the "Guarantor"). Except as otherwise defined herein, capitalized
terms used herein and defined in the SCIS Credit Agreement (as defined below) or
in the Caterair Credit Agreement (as defined below), as the case may be, shall
be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, Onex Food Services, Inc. ("OFSI"), SC International
Services, Inc. ("SCIS"), Caterair Holdings Corporation ("Caterair Holdings"),
Caterair International Corporation ("Caterair", and together with SCIS, the
"Borrowers"), various lenders from time to time party thereto (the "SCIS
Banks"), Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers
(the "SCIS Co-Arrangers"), Bankers Trust Company, as Syndication Agent, The Bank
of New York, as Co-Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent (together with any successor administrative agent, the
"SCIS Administrative Agent"), have entered into a Credit Agreement, dated as of
September 29, 1995 and amended and restated as of August 28, 1997, providing for
the making of loans to SCIS and the issuance of, and participation in, letters
of credit for the account of SCIS, as contemplated therein (as used herein, the
term "SCIS Credit Agreement" means the Credit Agreement described above in this
paragraph, as the same may be amended, modified, extended, renewed, replaced or
supplemented from time to time, and including any agreement extending the
maturity of, or restructuring all or any portion of the Indebtedness under such
agreement or any successor agreement) (the SCIS Banks, the SCIS Co-Arrangers and
the SCIS Administrative Agent are herein called the "SCIS Bank Creditors");
WHEREAS, SCIS, Caterair, various lenders from time to time
party thereto (the "Caterair Banks", and together with the SCIS Banks, the
"Banks"), Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers
(the "Caterair Co-Arrangers", and together with the SCIS Co-Arrangers, the
"Co-Arrangers"), Bankers Trust Company,
412
EXHIBIT I-2
Page 2
as Syndication Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent (together with any successor administrative agent, the
"Caterair Administrative Agent", and together with the SCIS Administrative
Agent, the "Administrative Agents"), have entered into a Term Loan Agreement,
dated as of August 28, 1997 providing for the making of loans to SCIS and
Caterair as contemplated therein (as used herein, the term "Caterair Credit
Agreement" means the Term Loan Agreement described above in this paragraph, as
the same may be amended, modified, extended, renewed, replaced, restated or
supplemented from time to time, and including any agreement extending the
maturity of, or restructuring all or any portion of the Indebtedness under such
agreement or any successor agreements, and the Caterair Credit Agreement,
together with the SCIS Credit Agreement, are herein called the "Credit
Agreements") (the Caterair Banks, the Caterair Co-Arrangers and the Caterair
Administrative Agent are herein called the "Caterair Bank Creditors", and
together with the SCIS Bank Creditors, are herein called the "Bank Creditors");
WHEREAS, the Borrowers or one or more of their respective
Subsidiaries may at any time and from time to time enter into one or more
Interest Rate Protection Agreements or Other Hedging Agreements with one or more
Banks or any affiliate thereof (each such Bank or affiliate, even if the
respective Bank subsequently ceases to be a Bank under the Credit Agreement for
any reason, together with such Bank's or affiliate's successors and assigns, if
any, collectively, the "Other Creditors," and together with the Bank Creditors
and the Collateral Agent, the "Secured Creditors");
WHEREAS, the Guarantor entered into the Designated Onex Sub
Guaranty, dated as of January 1, 1997 (as amended, modified or supplemented to
the date hereof, the "Original Designated Onex Sub Guaranty");
WHEREAS, the Guarantor is an Affiliate of OFSI, Caterair and
SCIS;
WHEREAS, it is a condition to the making of loans and the
issuance of letters of credit under the Credit Agreements that the Guarantor
shall have executed and delivered this Guaranty; and
WHEREAS, the Guarantor will obtain benefits from the
incurrence of loans and the issuance of letters of credit under the Credit
Agreements and the entering into of Interest Rate Protection Agreements or Other
Hedging Agreements and, accordingly, desires to execute this Guaranty in order
to satisfy the conditions described in the preceding paragraph and to amend and
restate the Original Designated Onex Sub Guaranty in its entirety in the form of
this Agreement;
413
EXHIBIT I-2
Page 3
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to the Guarantor, the receipt and sufficiency of which are
hereby acknowledged, the Guarantor hereby makes the following representations
and warranties to the Secured Creditors and hereby covenants and agrees with
each Secured Creditor as follows:
1. The Guarantor, irrevocably, absolutely and unconditionally
guarantees: (i) to the SCIS Bank Creditors the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of (x) the
principal of and interest on the notes issued by, and the loans made to, SCIS
under the SCIS Credit Agreement, and all reimbursement obligations and unpaid
drawings with respect to letters of credit issued under the SCIS Credit
Agreement and (y) all other obligations (including obligations which, but for
the automatic stay under Section 362(a) of the Bankruptcy Code, would become
due), liabilities and indebtedness owing by SCIS to the SCIS Bank Creditors
under the SCIS Credit Agreement or any other SCIS Credit Document (such term to
mean the "Credit Documents" as defined in the SCIS Credit Agreement) to which
SCIS is a party (including, without limitation, indemnities, fees and interest
thereon), whether now existing or hereafter incurred under, arising out of or in
connection with the SCIS Credit Agreement or any such other SCIS Credit Document
and the due performance and compliance by SCIS with all of the terms, conditions
and agreements contained in the SCIS Credit Documents (all such principal,
interest, liabilities, indebtedness and obligations being herein collectively
called the "SCIS Credit Document Obligations"); (ii) to the Caterair Bank
Creditors the full and prompt payment when due (whether at the stated maturity,
by acceleration or otherwise) of (x) the principal of and interest on the notes
issued by, and the loans made to SCIS and Caterair, under the Caterair Credit
Agreement, and (y) all other obligations (including obligations which, but for
the automatic stay under Section 362(a) of the Bankruptcy Code, would become
due), liabilities and indebtedness owing by SCIS and Caterair to the Caterair
Bank Creditors under the Caterair Credit Agreement or any other Caterair Credit
Document (such term to mean the "Credit Documents" as defined in the Caterair
Credit Agreement, and the Caterair Credit Documents, together with the SCIS
Credit Documents, are referred to herein as the "Credit Documents") to which
SCIS or Caterair is a party (including, without limitation, indemnities, fees
and interest thereon), whether now existing or hereafter incurred under, arising
out of or in connection with the Caterair Credit Agreement or any such other
Caterair Credit Document and the due performance and compliance by SCIS and
Caterair with all of the terms, conditions and agreements contained in the
Caterair Credit Documents (all such principal, interest, liabilities,
indebtedness and obligations being herein collectively called the "Caterair
Credit Document Obligations"); and (iii) to each Other Creditor the full and
prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of all obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due),
liabilities
414
EXHIBIT I-2
Page 4
and indebtedness owing by any Borrower or any Subsidiary of such Borrower under
any Interest Rate Protection Agreement or Other Hedging Agreement, whether now
in existence or hereafter arising, and the due performance and compliance by any
Borrower or such Subsidiary with all of the terms, conditions and agreements
contained in the Interest Rate Protection Agreements or Other Hedging Agreements
(all such obligations, liabilities and indebtedness being herein collectively
called the "Other Obligations," and together with the Credit Document
Obligations, the "Guaranteed Obligations"). The Guarantor understands, agrees
and confirms that the Secured Creditors may enforce this Guaranty up to the full
amount of the Guaranteed Obligations against the Guarantor without proceeding
against any Borrower, against any security for the Guaranteed Obligations, or
under any other guaranty covering all or a portion of the Guaranteed
Obligations. Notwithstanding the foregoing or anything else contained in this
Guaranty, the Secured Creditors, by their acceptance of the benefits of this
Guaranty, expressly acknowledge and agree that recourse against the Guarantor in
respect of the Guaranteed Obligations shall be limited to the capital stock of
Caterair Holdings, the proceeds thereof and the Guarantor's right, title and
interest therein.
2. Additionally, the Guarantor, unconditionally, absolutely
and irrevocably, guarantees the payment of any and all Guaranteed Obligations
whether or not due or payable by any Borrower or any Subsidiary thereof upon the
occurrence in respect of such Borrower or any such Subsidiary of any of the
events of the type specified in Section 10.05 of the SCIS Credit Agreement, and
unconditionally and irrevocably, promises to pay such Guaranteed Obligations to
the Secured Creditors, or order, on demand, in legal tender of the United
States, but otherwise subject to the limitations on recourse set forth in the
final sentence of Section 1 of this Agreement. This Guaranty shall constitute a
guaranty of payment, and not of collection.
3. The liability of the Guarantor hereunder is primary,
absolute and unconditional and is exclusive and independent of any security for
or other guaranty of the indebtedness of any Borrower or any Subsidiary thereof
whether executed by the Guarantor, any other guarantor or by any other party,
and the liability of the Guarantor hereunder shall not be affected or impaired
by any circumstance or occurrence whatsoever (other than the indefeasible
satisfaction in full in cash of the Guaranteed Obligations), including, without
limitation: (a) any direction as to application of payment by any Borrower or
any Subsidiary thereof or by any other party, (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of any other party
as to the Guaranteed Obligations, (c) any payment on or in reduction of any such
other guaranty or undertaking, (d) any dissolution, termination or increase,
decrease or change in personnel by any Borrower or any Subsidiary thereof, (e)
any payment made to any Secured Creditor on the indebtedness which any Secured
Creditor repays any Borrower or any Subsidiary thereof
415
EXHIBIT I-2
Page 5
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and the Guarantor waives any right
to the deferral or modification of its obligations hereunder by reason of any
such proceeding, (f) any action or inaction by the Secured Creditors as
contemplated in Section 6 hereof or (g) any invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations or of any
security therefor.
4. The obligations of the Guarantor hereunder are independent
of the obligations of any other guarantor, any Borrower or any Subsidiary
thereof, and a separate action or actions may be brought and prosecuted against
the Guarantor whether or not action is brought against any other guarantor, any
Borrower or any Subsidiary thereof and whether or not any other guarantor, any
Borrower or any Subsidiary thereof be joined in any such action or actions. The
Guarantor waives, to the fullest extent permitted by law, the benefits of any
statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by any Borrower or any Subsidiary thereof or other
circumstance which operates to toll any statute of limitations as to such
Borrower or any such Subsidiary shall operate to toll the statute of limitations
as to the Guarantor.
5. The Guarantor hereby waives notice of acceptance of this
Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by any Administrative Agent or any other Secured Creditor against, and any other
notice to, any party liable thereon (including the Guarantor, any other
guarantor, any Borrower or any Subsidiary thereof).
6. Any Secured Creditor may at any time and from time to time
without the consent of, or notice to, the Guarantor, without incurring
responsibility to the Guarantor, without impairing or releasing the obligations
of the Guarantor hereunder, upon or without any terms or conditions and in whole
or in part:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew or alter, any of the
Guaranteed Obligations (including any increase or decrease in the rate
of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended,
renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any
416
EXHIBIT I-2
Page 6
manner and in any order any property by whomsoever at any time pledged
or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and/or
any offset thereagainst;
(c) exercise or refrain from exercising any rights against any
Borrower, any other Credit Party, any Subsidiary thereof or otherwise
act or refrain from acting;
(d) release or substitute any one or more endorsers, other
guarantors, any Borrower, any Subsidiary thereof or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of any Borrower or
any Subsidiary thereof to creditors of such Borrower or such Subsidiary
other than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of any Borrower or any Subsidiary thereof
to the Secured Creditors regardless of what liabilities of such
Borrower or such Subsidiary remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, any of the Interest Rate Protection Agreements or Other
Hedging Agreements, the Credit Documents or any of the instruments or
agreements referred to therein, or otherwise amend, modify or
supplement any of the Interest Rate Protection Agreements or Other
Hedging Agreements, the Credit Documents or any of such other
instruments or agreements;
(h) act or fail to act in any manner referred to in this
Guaranty which may deprive the Guarantor of its right to subrogation
against any Borrower or any Subsidiary thereof to recover full
indemnity for any payments made pursuant to this Guaranty; and/or
(i) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of the Guarantor from its liabilities under this Guaranty.
417
EXHIBIT I-2
Page 7
7. This Guaranty is a continuing one and all liabilities to
which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay on the
part of any Secured Creditor in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein expressly specified are cumulative and not
exclusive of any rights or remedies which any Secured Creditor would otherwise
have. No notice to or demand on the Guarantor in any case shall entitle the
Guarantor to any other further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Secured Creditor to
any other or further action in any circumstances without notice or demand. It is
not necessary for any Secured Creditor to inquire into the capacity or powers of
any Borrower or any Subsidiary thereof or the officers, directors, partners or
agents acting or purporting to act on its behalf, and any indebtedness made or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
8. Any indebtedness of any Borrower or any Subsidiary thereof
now or hereafter held by the Guarantor is hereby subordinated to the
indebtedness of such Borrower or such Subsidiary to the Secured Creditors, and
such indebtedness of such Borrower or such Subsidiary to the Guarantor, if any
Administrative Agent, after the occurrence and during the continuance of an
Event of Default, so requests, shall be collected, enforced and received by the
Guarantor as trustee for the Secured Creditors and be paid over to the Secured
Creditors on account of the indebtedness of such Borrower or such Subsidiary to
the Secured Creditors, but without affecting or impairing in any manner the
liability of the Guarantor under the other provisions of this Guaranty. Without
limiting the generality of the foregoing, the Guarantor hereby agrees with the
Secured Creditors that it will not exercise any right of subrogation which it
may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code or otherwise) until all
Guaranteed Obligations have been irrevocably paid in full in cash.
9. (a) The Guarantor waives any right (except as shall be
required by applicable law and cannot be waived) to require the Secured
Creditors to: (i) proceed against any Borrower, any Subsidiary thereof, any
other guarantor of the Guaranteed Obligations or any other party; (ii) proceed
against or exhaust any security held from any Borrower, any Subsidiary thereof,
any other guarantor of the Guaranteed Obligations or any other party; or (iii)
pursue any other remedy in the Secured Creditors' power whatsoever. The
Guarantor waives any defense based on or arising out of any defense of any
Borrower, any Subsidiary thereof, any other guarantor of the Guaranteed
Obligations or any other party other than payment in full of the Guaranteed
Obligations, including, without
418
EXHIBIT I-2
Page 8
limitation, any defense based on or arising out of the disability of any
Borrower, any Subsidiary thereof, any other Guarantor, any other guarantor of
the Guaranteed Obligations or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of any Borrower or any Subsidiary thereof other than
payment in full of the Guaranteed Obligations. The Secured Creditors may, at
their election, foreclose on any security held by the Administrative Agent, the
Collateral Agent or the other Secured Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable, or exercise any other right or remedy the Secured Creditors may have
against any Borrower or any Subsidiary thereof or any other party, or any
security, without affecting or impairing in any way the liability of the
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid in full. The Guarantor waives any defense arising out of any such election
by the Secured Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy of
the Guarantor against any Borrower or any Subsidiary thereof or any other party
or any security.
(b) The Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional indebtedness. The Guarantor assumes all responsibility for being and
keeping itself informed of any Borrower's and each of its Subsidiary's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks which the Guarantor assumes and incurs hereunder, and agrees that the
Secured Creditors shall have no duty to advise the Guarantor of information
known to them regarding such circumstances or risks.
(c) The Guarantor hereby acknowledges and affirms that it
understands that to the extent the Guaranteed Obligations are secured by Real
Property located in California, the Guarantor shall be liable for the full
amount of the liability hereunder notwithstanding the foreclosure on such Real
Property by trustee sale or any other reason impairing the Guarantor's or any
Secured Creditor's right to proceed against any Borrower or any other guarantor
of the Guaranteed Obligations. In accordance with Section 2856 of the California
Civil Code, the Guarantor hereby waives:
(i) all rights of subrogation, reimbursement, indemnification,
and contribution and any other rights and defenses that are or may
become available
419
EXHIBIT I-2
Page 9
to the Guarantor by reason of Sections 2787 to 2855, inclusive, 2899
and 3433 of the California Civil Code:
(ii) all rights and defenses that the Guarantor may have
because the Guaranteed Obligations are secured by Real Property located
in California. This means, among other things: (A) the Secured
Creditors may collect from the Guarantor without first foreclosing on
any real or personal property collateral pledged by any Borrower; and
(B) if the Secured Creditors foreclose on any Real Property collateral
pledged by any Borrower, (1) the amount of the Guaranteed Obligations
may be reduced only by the price for which that collateral is sold at
the foreclosure sale, even if the collateral is worth more than the
sale price, and (2) the Secured Creditors may collect from the
Guarantor even if the Secured Creditors, by foreclosing on the Real
Property collateral, have destroyed any right the Guarantor may have to
collect from the Borrower. This is an unconditional and irrevocable
waiver of any rights and defenses the Guarantor may have because the
Guaranteed Obligations are secured by Real Property. These rights and
defenses include, but are not limited to, any rights or defenses based
upon Section 580a, 580b, 580d or 726 of the California Code of Civil
Procedure and
(iii) all rights and defenses arising out of an election of
remedies by the Secured Creditors, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security
for the Guaranteed Obligations, has destroyed the Guarantor's rights of
subrogation and reimbursement against any Borrower by the operation of
Section 580d of the Code of Civil Procedure or otherwise.
The Guarantor warrants and agrees that each of the waivers set forth above is
made with full knowledge of its significance and consequences and that if any of
such waivers are determined to be contrary to any applicable law or public
policy, such waivers shall be effective only to the maximum extent permitted by
law.
10. The Secured Creditors agree that this Guaranty may be
enforced only by the action of either Administrative Agent or the Collateral
Agent, in each case acting upon the instructions of the Required Secured
Creditors (as defined in the Security Agreement) and that no other Secured
Creditors shall have any right individually to seek to enforce or to enforce
this Guaranty or to realize upon the security to be granted by the Security
Documents, it being understood and agreed that such rights and remedies may be
exercised by each Administrative Agent or the Collateral Agent for the benefit
of the Secured Creditors upon the terms of this Guaranty and the Security
Documents. The
420
EXHIBIT I-2
Page 10
Secured Creditors further agree that this Guaranty may not be enforced against
any director, officer, employee, or stockholder of the Guarantor.
11. The Guarantor represents, warrants and covenants that:
(a) The Guarantor (i) is a duly organized and validly existing
corporation in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority to own its
property and assets and to transact the business in which it is engaged
and presently proposes to engage and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction
where the conduct of its business requires such qualification except
for failures to be so qualified which, individually or in the
aggregate, could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Guarantor.
(b) The Guarantor has the corporate power and authority to
execute, deliver and perform the terms and provisions of this Guaranty
and the Designated Onex Sub Pledge Agreement and has taken all
necessary corporate action to authorize the execution, delivery and
performance by it of this Guaranty and the Designated Onex Sub Pledge
Agreement. The Guarantor has duly executed and delivered this Guaranty
and the Designated Onex Sub Pledge Agreement, and this Guaranty and the
Designated Onex Sub Pledge Agreement constitute legal, valid and
binding obligations of the Guarantor enforceable in accordance with
their terms, except to the extent that the enforceability hereof or
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by the
Guarantor of this Guaranty or the Designated Onex Sub Pledge Agreement,
nor compliance by it with the terms and provisions hereof and thereof,
will (i) contravene any provision of any applicable law, statute, rule
or regulation or any applicable order, writ, injunction or decree of
any court or governmental instrumentality, (ii) conflict with or result
in any breach of any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except
pursuant to the Designated Onex Sub Pledge Agreement) upon the capital
stock of Caterair Holdings or the proceeds thereof pursuant to the
terms of any indenture, mortgage, deed of trust, loan
421
EXHIBIT I-2
Page 11
agreement, credit agreement, or any other material agreement, contract
or instrument to which the Guarantor or any of its Subsidiaries is a
party or by which it or any of its property or assets is bound or to
which it may be subject or (iii) violate any provision of the
certificate of incorporation or by-laws (or equivalent organizational
documents) of the Guarantor.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as
have been obtained or made), or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required to
authorize, or is required for, (i) the execution, delivery and
performance of this Guaranty by the Guarantor or the Designated Onex
Sub Pledge Agreement or (ii) the legality, validity, binding effect or
enforceability of this Guaranty or the Designated Onex Sub Pledge
Agreement.
(e) There are no actions, suits or proceedings pending or
threatened (i) with respect to this Guaranty or the Designated Onex Sub
Pledge Agreement or (ii) with respect to the Guarantor that could
reasonably be expected to materially and adversely affect (a) the
business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Guarantor or (b) the
rights or remedies of the Secured Creditors hereunder or under the
Designated Onex Sub Pledge Agreement or the ability of the Guarantor to
perform its respective obligations to the Secured Creditors hereunder
and under the Designated Onex Sub Pledge Agreement.
12. The Guarantor hereby agrees to pay all reasonable
out-of-pocket costs and expenses of the Administrative Agents and the Collateral
Agent in connection with any amendment, waiver or consent relating hereto and of
the Administrative Agents, the Collateral Agent and each other Secured Creditor
in connection with any enforcement of this Guaranty (including in each case,
without limitation, the reasonable fees and disbursements of counsel employed by
each Secured Creditor).
13. This Guaranty shall be binding upon the Guarantor and its
successors and assigns and shall inure to the benefit of the Secured Creditors
and their successors and assigns.
14. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except with the written consent of the
Guarantor and the Required Secured Creditors; provided, that any change, waiver,
modification or variance affecting the rights and benefits of a single Class (as
defined below) of Secured Creditors
422
EXHIBIT I-2
Page 12
(and not all Secured Creditors in a like or similar manner) shall also require
the written consent of the Requisite Creditors (as defined below) of such Class
of Secured Creditors. For the purpose of this Guaranty the term "Class" shall
mean each class of Secured Creditors, i.e., whether (i) the SCIS Bank Creditors
as holders of the SCIS Credit Document Obligations, (ii) the Caterair Bank
Creditors as holders of the Caterair Credit Document Obligations or (iii) the
Other Creditors as the holders of the Other Obligations. For the purpose of this
Guaranty, the term "Requisite Creditors" of any Class shall mean (i) with
respect to the SCIS Credit Document Obligations, the Required Banks under, and
as defined in, the SCIS Credit Agreement (or to the extent required by Section
13.12 of the SCIS Credit Agreement, with the written consent of each Bank), (ii)
with respect to the Caterair Credit Document Obligations the Required Banks
under, and as defined in, the Caterair Credit Agreement (or to the extent
required by Section 11.12 of the Caterair Credit Agreement, with the written
consent of each Caterair Bank) and (iii) with respect to the Other Obligations,
the holders of at least a majority of all obligations outstanding from time to
time under the Interest Rate Protection or Other Hedging Agreements.
15. The Guarantor acknowledges that an executed (or conformed)
copy of each of the Credit Documents and Interest Rate Protection Agreements or
Other Hedging Agreements has been made available to its principal executive
officers and such officers are familiar with the contents thereof.
16. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Secured Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default
(such term to mean and include any "Event of Default" as defined in either
Credit Agreement or any payment default under any Interest Rate Protection
Agreement or Other Hedging Agreement continuing after any applicable grace
period), each Secured Creditor is hereby authorized, at any time or from time to
time, without notice to the Guarantor or to any other Person, any such notice
being expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other indebtedness at any time held or
owing by such Secured Creditor to or for the credit or the account of the
Guarantor, against and on account of the obligations and liabilities of the
Guarantor to such Secured Creditor under this Guaranty, irrespective of whether
or not such Secured Creditor shall have made any demand hereunder and although
said obligations, liabilities, deposits or claims, or any of them, shall be
contingent or unmatured. Notwithstanding anything to the contrary contained in
this Section 16, no Secured Creditor shall exercise any such right of set-off
without the prior written consent of either Administrative Agent or the Required
Secured Creditors so long as the Guaranteed Obligations shall be secured by any
real property located in the State of California, it being
423
EXHIBIT I-2
Page 13
understood and agreed, however, that this sentence is for the sole benefit of
the Secured Creditors and may be amended, modified or waived in any respect by
the Required Secured Creditors without the requirement of prior notice to or
consent by any Credit Party and does not constitute a waiver of any rights
against any Credit Party or against any Collateral.
17. All notices, requests, demands or other communications
pursuant hereto shall be deemed to have been duly given or made when delivered
to the Person to which such notice, request, demand or other communication is
required or permitted to be given or made under this Guaranty, addressed to such
party at (i) in the case of any Bank Creditor, as provided in the applicable
Credit Agreement, (ii) in the case of the Guarantor, at its address set forth
opposite its signature below and (iii) in the case of any Other Creditor, at
such address as such Other Creditor shall have specified in writing to the
Guarantor; or in any case at such other address as any of the Persons listed
above may hereafter notify the others in writing.
18. If claim is ever made upon any Secured Creditor for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including any Borrower), then and in such event
the Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon the Guarantor, notwithstanding any revocation
hereof or other instrument evidencing any liability of such Borrower, and the
Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
19. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
SECURED CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal action
or proceeding with respect to this Guaranty or the Designated Onex Sub Pledge
Agreement may be brought in the courts of the State of New York or of the United
States of America for the Southern District of New York, and, by execution and
delivery of this Guaranty, the Guarantor hereby irrevocably accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. The Guarantor hereby further irrevocably waives any
claim that any such court lacks personal jurisdiction over the Guarantor, and
agrees not to plead or claim in any legal action or proceeding with respect
424
EXHIBIT I-2
Page 14
to this Guaranty or the Designated Onex Sub Pledge Agreement brought in any of
the aforesaid courts that any such court lacks personal jurisdiction over the
Guarantor. The Guarantor further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Guarantor at its address set forth opposite its signature below, such
service to become effective 30 days after such mailing. The Guarantor hereby
irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under the Designated Onex Sub Pledge Agreement that such
service of process was in any way invalid or ineffective. Nothing herein shall
affect the right of any of the Secured Creditors to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Guarantor in any other jurisdiction.
(b) The Guarantor hereby irrevocably waives (to the fullest
extent permitted by applicable law) any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty or the Designated Onex Sub
Pledge Agreement brought in the courts referred to in clause (a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that such action or proceeding brought in any such court has been brought
in an inconvenient forum.
(c) THE GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE
OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS GUARANTY, THE DESIGNATED ONEX SUB PLEDGE AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
20. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Guarantor and the
Administrative Agent.
21. All payments made by the Guarantor hereunder will be made
without setoff, counterclaim or other defense and on the same basis as payments
are made by the applicable Borrower under Sections 4.03 and 4.04 of the SCIS
Credit Agreement or Sections 3.03 and 3.04 of the Caterair Credit Agreement, as
the case may be.
425
EXHIBIT I-2
Page 15
* * *
426
EXHIBIT I-2
Page 16
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be executed and delivered as of the date first above written.
Addresses:
c/o Onex Corporation ONEX OFSI HOLDINGS INC.,
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ By: ____________________________
Attention: Name:
Telecopier No.: Title:
Accepted and Agreed to:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
as Administrative Agent and
Collateral Agent
By: ____________________________
Name:
Title:
427
EXHIBIT J
OFFICER'S SOLVENCY CERTIFICATE
I, the undersigned, the _______________ of SC International
Services, Inc., a corporation organized and existing under the laws of the State
of Delaware (the "Company"), do hereby certify on behalf of the Company that:
1. This Certificate is furnished pursuant to Section 5.14 of
the Credit Agreement, dated as of September 29, 1995 and amended and restated as
of August 28, 1997 (as in effect on the date hereof, the "Credit Agreement,")
among Onex Food Services, Inc. ("OFSI"), Caterair Holdings Corporation, the
Company, Caterair International Corporation ("Caterair"), various Banks from
time to time party thereto, Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities
Inc., as Co-Arrangers, Bankers Trust Company, as Syndication Agent, ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Administrative Agent, and The Bank of New
York, as Co-Agent. Unless otherwise defined herein, capitalized terms used in
this Certificate shall have the meanings set forth in the Credit Agreement.
2. For purposes of this Certificate, the terms below shall
have the following definitions:
(a) "Fair Value"
The amount at which the assets, in their entirety, of the
Company, Caterair and their respective Subsidiaries (taken as
a whole) and OFSI and its Subsidiaries (on a consolidated
basis), in each case would change hands between a willing
buyer and a willing seller, within a commercially reasonable
period of time, each having reasonable knowledge of the
relevant facts, with neither being under any compulsion to
act.
(b) "Present Fair Salable Value"
The amount that could be obtained by an independent willing
seller from an independent willing buyer if the assets of the
Company, Caterair and their respective Subsidiaries (taken as
a whole) and OFSI and its Subsidiaries (on a consolidated
basis) are sold in an arm's-length transaction with reasonable
428
Exhibit J
Page 2
promptness under present conditions for the sale of comparable
business enterprises.
(c) "New Financing"
The indebtedness incurred or to be incurred by the Credit
Parties under the Credit Documents (assuming the full
utilization by the Company of the Revolving Loan Commitments
under the Credit Agreement) and all other financing
contemplated by the Credit Documents (including the Caterair
Credit Agreement and the 9 1/4% Senior Subordinated Notes)
(and any guaranties of the foregoing), in each case after
giving effect to the Transaction and the incurrence of all
financings contemplated therewith.
(d) "Stated Liabilities"
The recorded liabilities (including Contingent Liabilities
that would be recorded in accordance with generally accepted
accounting principles ("GAAP") consistently applied) of the
Company, Caterair and their respective Subsidiaries (taken as
a whole) and OFSI and its Subsidiaries (on a consolidated
basis) in each case at December 31, 1996, together with (i)
the net change in long-term debt (including current
maturities) between December 31, 1996 and the date hereof and
(ii) without duplication, the amount of all New Financing.
(e) "Contingent Liabilities"
The maximum estimated amount of liability reasonably likely to
result from pending litigation, asserted claims and
assessments, guaranties, uninsured risks and other contingent
liabilities of the Company, Caterair and their respective
Subsidiaries (taken as a whole) and OFSI and its Subsidiaries
(on a consolidated basis) (exclusive of such Contingent
Liabilities to the extent reflected in Stated Liabilities).
(f) "Will be able to pay its Stated Liabilities, including
Contingent Liabilities, as they mature."
For the period from the date hereof through the stated
maturity of all New Financing, each of the Company, Caterair
and their respective Subsidiaries (taken as a whole) and OFSI
and its Subsidiaries (on a consolidated basis) will have
sufficient assets and cash flow to pay its Stated Liabilities
and Contingent Liabilities as those liabilities mature or
otherwise become due.
429
Exhibit J
Page 3
(g) "Does not have Unreasonably Small Capital"
For the period from the date hereof through the stated
maturity of all New Financing, each of the Company, Caterair
and their respective Subsidiaries (taken as a whole) and OFSI
and its Subsidiaries (on a consolidated basis) in each case
after consummation of the Transaction and all Indebtedness
being incurred or assumed and Liens created in connection
therewith, is a going concern and has sufficient capital to
ensure that it will continue to be a going concern for such
period and to remain a going concern despite moderately
negative deviations from the Projections discussed below.
3. For purposes of this Certificate, I, or officers of the
Company and OFSI under my direction and supervision, have performed the
following procedures as of and for the periods set forth below.
(a) I have reviewed the consolidated statements of financial
condition of each of the Company, Caterair and their
respective Subsidiaries and OFSI and its Subsidiaries each at
December 31, 1996 and June 31, 1997, and the related
consolidated statements of income and cash flow and changes in
shareholders' equity of each of the Company, Caterair and
their respective Subsidiaries, OFSI and its Subsidiaries each
for the fiscal year and six-month period ended on such date,
as the case may be.
(b) I have reviewed the unaudited pro forma consolidated financial
statements of each of the Company, Caterair and their
respective Subsidiaries and OFSI and its Subsidiaries each for
the period ending June 30, 1997 prepared in accordance with
GAAP after giving effect to the Transaction and the incurrence
of the New Financing, and verified the mathematical accuracy
of the application of the pro forma adjustments to the amounts
in the audited consolidated financial statements.
(c) I have made inquiries of certain other officials of the
Company and OFSI who have responsibility for financial and
accounting matters regarding:
1. whether the unaudited pro forma consolidated
financial statements referred to in paragraph (b)
above are in conformity with GAAP and applied on a
basis substantially consistent with that of the
unaudited financial statements as at June 30, 1997;
and
2. whether, at December 31, 1996, there were any
decreases as compared with June 30, 1997, in the
consolidated net assets or the excess of consolidated
current assets over consolidated current
430
Exhibit J
Page 4
liabilities of each of the Company, Caterair and
their respective Subsidiaries (taken as a whole) and
OFSI and its Subsidiaries (on a consolidated basis).
(d) I have read:
1. the Credit Documents, the Caterair Credit Documents,
the Senior Subordinated Note Documents and the
respective Schedules and Exhibits thereto.
(e) With respect to Contingent Liabilities, I:
1. inquired of certain officials of the Company,
Caterair and OFSI who have responsibility for legal,
financial and accounting matters as to the existence
and estimated liability with respect to all
Contingent Liabilities known to them;
2. confirmed with senior officers of the Company,
Caterair and OFSI that, to the best of such officers'
knowledge, (i) all appropriate items were included in
Stated Liabilities or Contingent Liabilities made
known to me in the course of my inquiry and that (ii)
the amounts relating thereto were the maximum
estimated amount of liability reasonably likely to
result therefrom as of the date hereof;
3. I hereby certify that, to the best of my knowledge,
all material Contingent Liabilities that may arise
from any pending litigation, asserted claims and
assessments, guarantees, uninsured risks and other
Contingent Liabilities of the Company, Caterair and
their respective Subsidiaries and OFSI and its
Subsidiaries (exclusive of such Contingent
Liabilities to the extent reflected in Stated
Liabilities) have been considered in making the
certification set forth in paragraph 4 below, and
with respect to each such Contingent Liability the
estimable maximum estimated amount of liability with
respect thereto was used in making such
certification.
(f) I have had the Projections, which have been previously
delivered to the Banks, prepared under my direction and have
re-examined the Projections on the date hereof and considered
the effect thereon of any changes since the date of the
preparation thereof on the results projected therein.
(g) I have made inquiries of certain officers of the Company,
Caterair and OFSI which have responsibility for financial
reporting and accounting matters
431
Exhibit J
Page 5
regarding whether they were aware of any events or conditions
that, as of the date hereof, would cause either the Company,
Caterair and their respective Subsidiaries (taken as a whole)
or OFSI and its Subsidiaries (on a consolidated basis), in
each case after giving effect to the consummation of the
Transaction and the related financing transactions (including
the incurrence of the New Financing), to (i) have assets with
a Fair Value or Present Fair Salable Value that are less than
the sum of Stated Liabilities and Contingent Liabilities; (ii)
have Unreasonably Small Capital; or (iii) not be able to pay
its Stated Liabilities and Contingent Liabilities as they
mature or otherwise become due.
4. Based on and subject to the foregoing, I hereby certify on
behalf of the Company that, after giving effect to the Transaction and the
related financing transactions (including the New Financing), it is my informed
opinion that as of the date hereof (i) the Fair Value and Present Fair Salable
Value of the assets of each of the Company, Caterair and their respective
Subsidiaries (taken as a whole) and OFSI and its Subsidiaries (on a consolidated
basis) in each case exceed its Stated Liabilities and Contingent Liabilities;
(ii) each of the Company, Caterair and their respective Subsidiaries (taken as a
whole) and OFSI and its Subsidiaries (on a consolidated basis) will not have
Unreasonably Small Capital; and (iii) each of the Company, Caterair and their
respective Subsidiaries (taken as a whole) and OFSI and its Subsidiaries (on a
consolidated basis) will be able to pay its Stated Liabilities and Contingent
Liabilities as they mature or otherwise become due.
432
Exhibit J
Page 6
IN WITNESS WHEREOF, the Company has caused its duly authorized
_______________ to execute and deliver this Certificate this 28th day of August,
1997.
SC INTERNATIONAL SERVICES, INC.
By______________________________
Name:
Title:
433
EXHIBIT K
INTERCOMPANY NOTE
New York, New York
___________, _____
FOR VALUE RECEIVED, __________________________, a ___________
corporation (the "Payor"), hereby promises to pay on demand to the order of
______________________, or its registered assigns (the "Payee"), in lawful money
of the United States of America in immediately available funds, at such location
in the United States of America as the Payee shall from time to time designate,
the unpaid principal amount of all loans and advances made by the Payee to the
Payor (collectively, the "Loans").
The Payor promises also to pay interest on the Loans in like
money at said office from the date hereof until paid at such rate per annum as
shall be agreed upon from time to time by the Payor and Payee.
Upon the commencement of any bankruptcy, reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar proceeding of any jurisdiction relating to the Payor, the
Loans shall become immediately due and payable without presentment, demand,
protest or notice of any kind in connection with this Note.
This Note is one of the Intercompany Notes referred to in the
Credit Agreement, dated as of September 29, 1995 and amended and restated as of
August 28, 1997, among Onex Food Services, Inc., SC International Services,
Inc., Caterair Holdings Corporation, Caterair International Corporation, the
lenders from time to time party thereto, Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇
Securities Inc., as Co-Arrangers, Bankers Trust Company, as Syndication Agent,
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative Agent, and The Bank
of New York, as Co-Agent (as amended, modified or supplemented from time to
time, the "Credit Agreement") and is subject to the terms thereof, and shall be
pledged by the Payee pursuant to the General Pledge Agreement (as defined in the
Credit Agreement). The Payor hereby acknowledges and agrees that the Collateral
Agent pursuant to (and as defined in) the General Pledge Agreement, as in effect
from time to time, may exercise all rights provided therein with respect to this
Note.
434
EXHIBIT K
Page 2
The Payee is hereby authorized to record all Loans made by it
to the Payor (all of which shall be evidenced by this Note), and all repayments
or prepayments thereof, in its books and records, such books and records
constituting prima facie evidence of the accuracy of the information contained
therein.
All payments under this Note shall be made without offset,
counterclaim or deduction of any kind.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK.
[NAME OF PAYOR]
By________________________________
Title:
Pay to the order of
____________________________
[NAME OF PAYEE]
By__________________________
Title:
435
EXHIBIT L
AMENDED AND RESTATED
SUBORDINATION AGREEMENT
This Amended and Restated Subordination Agreement (the
"Subordination Agreement"), dated as of August 28, 1997, entered into by and
among Caterair Holdings Corporation, a Delaware corporation ("Holdings"), Renex
Corporation, a corporation organized under the laws of the Cayman Islands
("Debentureholder"), Caynex, Inc., a corporation organized under the laws of the
Cayman Islands ("Optionholder"), and ▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent (together with any successor administrative agent, the
"Administrative Agent"), on behalf of the various lenders under (i) the Credit
Agreement, dated as of September 29, 1995 and amended and restated as of August
28, 1997, by and among Holdings, Caterair International Corporation
("Caterair"), Onex Food Services, Inc., SC International Services, Inc.
("SCIS"), the lenders from time to time party thereto, Bankers Trust Company and
▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers, Bankers Trust Company, as
Syndication Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative
Agent, and The Bank of New York, as Co-Agent (the "Revolver"), and (ii) the Term
Loan Agreement, dated as of August 28, 1997, by and among SCIS, Caterair, the
lenders from time to time party thereto, Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇
Securities Inc., as Co-Arrangers, Bankers Trust Company, as Syndication Agent,
and ▇▇▇▇▇▇ Guaranty Trust Company of New York as Administrative Agent (the "Term
Loan") (each of the Revolver and the Term Loan as amended, modified,
supplemented, extended, restated, refinanced, replaced or refunded from time to
time, collectively, the "Credit Agreements"), amends and restates that certain
Subordination Agreement dated as of December 19, 1995 by and among the parties
hereto.
WHEREAS, Holdings is the maker of that certain $43,800,000
principal amount Senior Debenture due 2001, dated September 29, 1995 (together
with all Interest Debentures (as defined therein) issued or to be issued
thereunder or issued prior to September 29, 1995 pursuant to the $280,000,000
principal amount Senior Debenture due 2001, dated December 15, 1989, made by
Holdings, the "Holdings Unsecured Debenture");
WHEREAS, Debentureholder is the holder of the Holdings Unsecured
Debenture;
WHEREAS, Optionholder is the holder of an option granted to it by
Debentureholder to purchase the Holdings Unsecured Debenture from
Debentureholder;
NOW THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
Section 1.01. Subordination of Liabilities. Holdings, for itself,
its successors and assigns, covenants and agrees, and each subsequent holder of
the Holdings Unsecured Debenture, including, without limitation, Debentureholder
and Optionholder, by their acceptance thereof likewise covenants and agrees,
that the payment of the principal of, interest on, and all other amounts owing
in respect of, the Holdings Unsecured Debenture (the "Subordinated
Indebtedness") is hereby expressly subordinated, to the extent and in the manner
hereinafter set
436
forth, to the prior satisfaction and discharge in full in cash or termination of
the Obligations (as defined below) under the Credit Agreements. The provisions
of this Subordination Agreement shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue to
hold, the Obligations under the Credit Documents (as defined in each of the
Credit Agreements) and such provisions are made for the benefit of the holders
of the Obligations under the Credit Documents, and, they and/or each of them may
proceed to enforce such provisions. This provision shall in no manner limit the
right or obligation of Holdings to issue, in accordance with the terms of the
Holdings Unsecured Debenture, to the Holder of the Holdings Unsecured Debenture,
Interest Debentures. As used herein, the term "Obligation" shall mean any
principal, interest (including interest accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding, at the rate provided
for in the documentation in respect thereto, whether or not such interest is an
allowed claim against the debtor in any such proceeding), premium, penalties,
fees, expenses, indemnities and other liabilities and obligations payable under
a Credit Agreement or any other Credit Document.
Section 1.02. Holdings Not to Make Payments with Respect to
Subordinated Indebtedness in Certain Circumstances. (a) All Obligations owing in
respect of the Credit Documents shall first be paid in full in cash, before any
payment, whether in cash, property, securities or otherwise, is made on account
of the Subordinated Indebtedness.
(b) Holdings may not, directly or indirectly, make any payment to
the holder of any Subordinated Indebtedness (other than by issuance of Interest
Debentures) and may not acquire any Subordinated Indebtedness for cash or
property until all Obligations owing in respect of the Credit Documents shall
have been satisfied and discharged in full in cash or terminated.
Notwithstanding the preceding sentence until the satisfaction and discharge in
full in cash or termination of all Obligations owing in respect of the Credit
Documents, the Debentureholder, Optionholder (or any subsequent holder of the
Holdings Unsecured Debenture), Holdings and the Administrative Agent hereby
agree that Holdings shall pay all amounts due and payable (other than Interest
Debentures), at maturity or any time thereafter, in respect of the Holdings
Unsecured Debenture to an escrow agent (the "Escrow Agent") to be held by such
Escrow Agent under the terms and conditions contained in the form of Escrow
Agreement attached hereto as Exhibit A. The Escrow Agent shall be selected by
Holdings and shall be reasonably satisfactory to the Administrative Agent. Each
holder of the Holdings Unsecured Debenture hereby agrees that, so long as any
Obligations owing in respect of the Credit Documents remain outstanding, it will
not ▇▇▇ for, or otherwise take any action to enforce Holdings' obligations to
pay, amounts owing in respect of the Holdings Unsecured Debenture without the
prior written consent of the Required Banks (as such term is defined in each of
the Credit Agreements). However, the prohibition contained in the preceding
sentence shall in no way be construed to limit the right of any holder of the
Holdings Unsecured Debenture to ▇▇▇ for, or otherwise take action to enforce
Holdings' obligation (pursuant to the terms of this Section 1.02(b)) to pay
amounts of cash otherwise available to Holdings to the Escrow Agent in respect
of the Holdings Unsecured Debenture and for Holdings to issue Interest
Debentures, it being understood and agreed that (i) cash otherwise available to
Holdings shall not include (w) cash or other funds held by any subsidiary or
affiliate of Holdings, (x) cash that is necessary for Holdings to pay franchise
2
437
taxes and other fees and expenses to maintain its corporate existence, (y) cash
necessary to pay fees to its directors and (z) cash necessary to perform its
accounting, legal, corporate reporting and other administrative functions and
(ii) until all Obligations under the Credit Documents have been paid in full in
cash, in no event shall any holder of the Holdings Unsecured Debenture take any
enforcement action whatsoever with respect to any outstanding shares of capital
stock of Caterair International Corporation or any other subsidiary of Holdings.
(c) In the event that notwithstanding the provisions of the
preceding subsections (a) and (b) of this Section 1.02, Holdings shall make any
payment to any holder of Subordinated Indebtedness on account of the
Subordinated Indebtedness at a time when such payment is not permitted by said
subsection (a) or (b), such payment shall be paid forthwith to the
Administrative Agent in satisfaction of any Obligations owing in respect of the
Credit Documents.
(d) To the extent any payment of indebtedness under the Credit
Documents (whether by or on behalf of Holdings, as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar person, the
indebtedness under the Credit Documents or part thereof originally intended to
be satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
Section 1.03. Subordination to Prior Payment of all Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Holdings. Until
the satisfaction and discharge in full in cash or termination of all Obligations
owing in respect of the Credit Documents, upon any distribution of assets of
Holdings upon dissolution, winding up, liquidation or reorganization of Holdings
(whether in bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefit of creditors or otherwise):
(a) the holders of the Obligations under the Credit Documents shall
first be entitled to receive payment in full in cash in respect of such
Obligations (including, without limitation, post-petition interest at the
rate provided in the documentation with respect to such Obligations,
whether or not such post-petition interest is an allowed claim against
the debtor in any bankruptcy or similar proceeding) before the holder of
the Holdings Unsecured Debenture is entitled to receive any payment on
account of the Subordinated Indebtedness;
(b) any payment or distributions of assets of Holdings of any kind
or character, whether in cash, property or securities to which the holder
of the Holdings Unsecured Debenture would be entitled except for the
provisions of this Subordination Agreement, shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee
3
438
or other trustee or agent, directly to the holders of the Obligations
under the Credit Documents or their representative or representatives, to
the extent necessary to make payment in full in cash in respect of the
Obligations owing in respect of the Credit Documents, after giving effect
to any concurrent payment or distribution to the holders of such
Obligations; and
(c) in the event that, notwithstanding the foregoing provisions of
this Section 1.03, any payment or distribution of assets of Holdings of
any kind or character, whether in cash, property or securities, shall be
received by the holder of the Holdings Unsecured Debenture on account of
Subordinated Indebtedness before the Obligations owing in respect of the
Credit Documents are paid in full in cash, such payment or distribution
shall be paid forthwith to the Administrative Agent in satisfaction of
any Obligations owing under the Credit Documents.
Without in any way modifying the provisions of this Subordination
Agreement or affecting the subordination effected hereby, Holdings shall give
prompt written notice to the holder of the Holdings Unsecured Debenture of any
dissolution, winding up, liquidation or reorganization of Holdings (whether in
bankruptcy, insolvency or receivership proceedings or upon assignment for the
benefit of creditors or otherwise).
Section 1.04. Subrogation. Upon the satisfaction and discharge in
full in cash or termination of all Obligations owing in respect of the Credit
Documents, the holder of the Holdings Unsecured Debenture shall be subrogated to
the rights of the holders of the indebtedness under the Credit Agreements to
receive payments or distributions of assets of Holdings applicable to the Credit
Agreements until all amounts owing on the Holdings Unsecured Debenture shall be
paid in full, and for the purpose of such subrogation no payments or
distributions to the holders of the indebtedness under the Credit Agreements by
or on behalf of Holdings or by or on behalf of the holder of the Holdings
Unsecured Debenture by virtue of this Subordination Agreement which otherwise
would have been made to the holder of the Holdings Unsecured Debenture shall, as
between Holdings, its creditors other than the holders of the indebtedness under
the Credit Agreements, and the holder of the Holdings Unsecured Debenture, be
deemed to be payment by Holdings to or on account of the Credit Agreements, it
being understood that the provisions of this Subordination Agreement are and are
intended solely for the purpose of defining the relative rights of the holder of
the Holdings Unsecured Debenture, on the one hand, and the holders of the
indebtedness under the Credit Agreements, on the other hand.
Section 1.05. Obligation of Holdings Unconditional. Nothing
contained in this Subordination Agreement is intended to or shall impair, as
between Holdings and the holder of the Holdings Unsecured Debenture, the
obligation of Holdings, which is absolute and unconditional, to pay to the
holder of the Holdings Unsecured Debenture the principal of and interest on the
Holdings Unsecured Debenture as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the holder of the Holdings Unsecured Debenture and creditors of
Holdings other than the holders of
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439
the indebtedness under the Credit Agreements (it being understood that the
provisions of this Subordination Agreement are and are intended solely for the
purpose of defining the relative rights of the holder of the Holdings Unsecured
Debenture, on the one hand, and the holders of the indebtedness under the Credit
Agreements on the other hand), nor shall anything herein or therein prevent the
holder of the Holdings Unsecured Debenture from exercising all remedies
otherwise permitted by applicable law and this Subordination Agreement upon an
event of default under the Holdings Unsecured Debenture, subject to the rights,
if any, under this Subordination Agreement of the holders of the indebtedness
under the Credit Agreements in respect of cash, property, or securities of
Holdings received upon the exercise of any such remedy or as otherwise provided
herein with respect to exercising any such remedy. Upon any distribution of
assets of Holdings referred to in this Subordination Agreement, the holder of
the Holdings Unsecured Debenture shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, or a
certificate of the liquidating trustee or agent or other person making any
distribution to the holder of the Holdings Unsecured Debenture, for the purpose
of ascertaining the persons entitled to participate in such distribution, the
holders of the indebtedness under the Credit Agreements and other indebtedness
of Holdings, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Subordination Agreement.
Section 1.06. Subordination Rights Not Impaired by Acts or
Omissions of Holdings or Holders of Senior Indebtedness. No right of any present
or future holders of the indebtedness under the Credit Agreements to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of Holdings or by any act or
failure to act in good faith by any such holder, or by any noncompliance by
Holdings with the terms and provisions of the Holdings Unsecured Debenture,
regardless of any knowledge thereof which any such holder may have or be
otherwise charged with. The holders of the indebtedness under the Credit
Agreements may, without in any way affecting the obligations of the holder of
the Holdings Unsecured Debenture with respect hereto, at any time or from time
to time and in their absolute discretion, change the manner, place or terms of
payment of, change or extend the time of payment of, or renew or alter, the
Credit Agreements or any other Credit Document or amend, modify or supplement
any agreement or instrument governing or evidencing the Credit Agreements, any
other Credit Documents, or any other document referred to therein, or exercise
or refrain from exercising any other of their rights under the Credit Agreements
or any other Credit Document, including, without limitation, the waiver of
default thereunder and the release of any collateral securing the Credit
Agreements or any other Credit Document, all without notice to or assent from
the holder of the Holdings Unsecured Debenture.
Section 2. Governing Law. This Agreement and (unless otherwise
provided), all amendments hereof and waivers and consents hereunder shall be
governed by the internal law of the State of New York without regard to the
conflicts of laws or principles thereof.
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440
Section 3. Submission to Jurisdiction.
(a) Any legal action or proceeding with respect to this
Agreement or any of the transactions contemplated hereby may be brought against
any of the parties in the courts of the State of New York or the United States
of America for the Southern District of New York; each of the parties hereby
consents to generally and unconditionally, the jurisdiction of the aforesaid
courts (and the appropriate appellate courts) in any such legal action or
proceedings.
(b) Each of the parties hereto hereby irrevocably waives, in
connection with any such action or proceeding, any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens, which it may now or hereafter have to bringing of any such
action or proceeding in such jurisdiction.
(c) Each of the parties hereto hereby irrevocably consents to
the service of process of any of the aforementioned courts in any such action or
proceeding anywhere in the world.
(d) Nothing herein shall affect the right of any party hereto
to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against any other party hereto in any other
jurisdiction.
Section 4. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be considered an original, but all
of which together shall constitute the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Subordination Agreement as of the date first written above.
CATERAIR HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Secretary
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441
ACCEPTED AND AGREED TO
this 28th day of August, 1997
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent under the Revolver
on behalf of the other lenders named therein
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent under the Term
Loan on behalf of the other lenders named therein
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
RENEX CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signer
CAYNEX, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
7
442
EXHIBIT A
to the
Amended and Restated Subordination Agreement
Form of Escrow Agreement
[Escrow Agent]
[Address]
Attention:
Re: Amended and Restated Escrow Agreement
Gentlemen:
This Amended and Restated Escrow Agreement (the "Escrow Agreement")
is hereby accepted as of August __, 1997, by Caterair Holdings Corporation, a
Delaware corporation ("Holdings"), the maker of that certain $43,800,000
principal amount Senior Debenture due 2001, dated September 29, 1995 (together
with all Interest Debentures (as defined therein) issued and to be issued
thereunder or issued prior to September 29, 1995 pursuant to the $280,000,000
principal amount Senior Debenture due 2001, dated December 15, 1989, made by
Holdings, the "Holdings Unsecured Debenture"), Renex Corporation, a corporation
organized under the laws of the Cayman Islands, the holder of the Holdings
Unsecured Debenture ("Debentureholder"), Caynex, Inc., a corporation organized
under the laws of the Cayman Islands, the holder of an option (the "Option") to
purchase the Holdings Unsecured Debenture from Debentureholder ("Optionholder"),
and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative Agent (together
with any successor administrative agents, the "Administrative Agent"), on behalf
of the various lenders under (i) the Credit Agreement, dated as of September 29,
1995 and amended and restated as of August __, 1997, by and among Holdings,
Caterair International Corporation ("Caterair"), Onex Food Services, Inc., SC
International Services, Inc. ("SCIS"), the lenders from time to time party
thereto, Bankers Trust Company, and ▇.▇. ▇▇▇▇▇▇ Securities Inc. as Co-Arrangers,
Bankers Trust Company as Syndication Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New
York as Administrative Agent, and The Bank of New York as Co-Agent (the
"Revolver"), and (ii) the Term Loan Agreement, dated as of August __, 1997, by
and among SCIS, Caterair, the lenders from time to time party thereto, Bankers
Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers, Bankers Trust
Company, as Syndication Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York as
Administrative Agent (the "Term Loan") (each of the Revolver and the Term Loan
as amended, modified, supplemented, extended, restated, refinanced, replaced or
refunded from time to time, collectively, the "Credit Agreements").
The parties hereto, intending to be legally bound, hereby agree as
follows:
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443
1. Deposit and Investments. Holdings will, from time to time,
deposit with _________________, as escrow agent (the "Escrow Agent"), any and
all amounts to be paid to the holder of the Holdings Unsecured Debenture in
respect of all amounts due and payable (excluding any Interest Debentures) under
the Holdings Unsecured Debenture, at maturity or any other time (collectively,
the "Deposit"). The Deposit shall be held in a separate account maintained by
the Escrow Agent (the "Escrow") pursuant to this Escrow Agreement. The Escrow
Agent shall invest the Deposit in Permitted Investments in accordance with the
joint written instructions of Holdings, Debentureholder and Optionholder until
disbursement of amounts deposited therein. "Permitted Investments" means any of
the investments identified on Schedule A hereto.
2. Deposit. The Escrow Agent shall hold and disburse the Deposit
pursuant to the terms of this Escrow Agreement.
3. Retention of Earnings, Etc. All interest, earnings, and gains
received by the Escrow Agent from the investment of the Deposit shall be
reinvested and held as part of the Deposit. In connection with the investment of
the Deposit, Debentureholder or Optionholder, as the case may be, shall provide
the Escrow Agent with their respective taxpayer identification numbers.
4. Disbursement.
(a) The Escrow Agent is authorized and directed to deliver and
disburse the Deposit, together with any interest, earnings or gains on the
Deposit in accordance with the terms set forth below upon receipt of written
notice from the Administrative Agent:
(i) if a written notice from the Administrative Agent states
that the obligations under either of the Credit Agreements have been terminated
or satisfied in full, the Escrow Agent shall disburse the Deposit to
Debentureholder;
(ii) if a written notice from the Administrative Agent states
that an Event of Default has occurred under (and as defined in) either Credit
Agreement, the Escrow Agent shall disburse the Deposit to the Administrative
Agent on behalf of the other lenders under the Credit Agreements; or
(iii) if a written notice from the Administrative Agent
states that a Deposit is in violation of the Amended and Restated Subordination
Agreement, dated as of August __, 1997, among Holdings, Debentureholder,
Optionholder and the Administrative Agent, the Escrow Agent shall disburse the
Deposit to the Administrative Agent on behalf of the other lenders under the
Credit Agreements.
(b) In the event the Escrow Agent shall be instructed to disburse
the Deposit to the Administrative Agent in accordance with Section 4(a)(ii), and
the amount of the Deposit, together with all other amounts received by the
lenders under the Credit Agreements
9
444
shall exceed the amounts owing under the Credit Agreements, the Escrow Agent
shall pay such excess to the holder of the Holdings Unsecured Debenture or as a
court may otherwise direct.
5. Rights, Duties, and Liabilities of Escrow Agent.
(a) The Escrow Agent shall have no duty to know or determine the
performance or non-performance of any provision of any agreement between the
parties to this Escrow Agreement, which shall not bind the Escrow Agent in any
manner. The Escrow Agent assumes no responsibility for the validity or
sufficiency of any document or paper or payment deposited or called for under
this Escrow Agreement except as may be expressly and specifically set forth in
this Escrow Agreement, and the duties and responsibilities of the Escrow Agent
under this Escrow Agreement are limited to those expressly and specifically
stated in this Escrow Agreement.
(b) The Escrow Agent shall not be personally liable for any act it
may do or omit to do under this Escrow Agreement as such agent while acting in
good faith and in the exercise of its own best judgment, and any act done or
omitted by it pursuant to the written advice of its counsel shall be conclusive
evidence of such good faith. The Escrow Agent shall have the right at any time
to consult with its counsel upon any question arising under this Escrow
Agreement and shall incur no liability for any delay reasonably required to
obtain the advice of counsel.
(c) Other than those notices or demands expressly provided in this
Escrow Agreement, the Escrow Agent is expressly authorized to disregard any and
all notices or demands given by any party hereto, or by any other person, firm,
or corporation, excepting only orders or process of court, and the Escrow Agent
is expressly authorized to comply with and obey any and all final process,
orders, judgments, or decrees of any court, and to the extent the Escrow Agent
obeys or complies with any thereof of any court, it shall not be liable to any
party to this Escrow Agreement or to any other person, firm, or corporation by
reason of such compliance.
(d) In consideration of the acceptance of this Escrow by the Escrow
Agent (as evidenced by its signature below), Holdings, Debentureholder and
Optionholder agree, for themselves and their successors and assigns, to pay the
Escrow Agent its charges, fees, and expenses as contemplated by this Escrow
Agreement. The escrow fees or charges shall be as written below the Escrow
Agent's signature.
(e) The Escrow Agent shall be under no duty or obligation to
ascertain the identity, authority, or right of any party hereto (or their
agents) to execute or deliver or purport to execute or deliver this Escrow
Agreement or any documents or papers or payments deposited or called for or
given under this Escrow Agreement.
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445
(f) The Escrow Agent shall not be liable for the outlawing of any
rights under any statute of limitations or by reason of laches in respect of
this Escrow Agreement or any documents or papers deposited with the Escrow
Agent.
(g) In the event of any dispute among the parties to this Escrow
Agreement, including a dispute as to the validity or meaning of any provision of
this Escrow Agreement, or any other fact or matter relating to this Escrow
Agreement or to the transactions between Holdings, Debentureholder or
Optionholder and the Administrative Agent, as the case may be, the Escrow Agent
is instructed that it shall be under no obligation to act, except in accordance
with this Escrow Agreement or under process or order of court or, if there by no
such process or order, until it has filed or caused to be filed an appropriate
action interpleading Holdings, Debentureholder or Optionholder and delivering
the Deposit (or the portion of the Deposit in dispute) to such court, and the
Escrow Agent shall sustain no liability for its failure to act pending such
process of court or order or interpleader of action.
6. Modification of Escrow Agreement. The provisions of this Escrow
Agreement may be supplemented, altered, amended, modified, or revoked by writing
only, signed by Holdings, Debentureholder, Optionholder and the Administrative
Agent and approved in writing by the Escrow Agent.
7. Assignment of Escrow Agreement. No assignment, transfer,
conveyance, or hypothecation of any right, title, or interest in and to the
subject matter of this Escrow Agreement shall be binding upon any party,
including the Escrow Agent, unless all fees have been paid and then only upon
the assent of all parties hereto in writing.
8. Binding. The undertakings and agreements contained in this
Escrow Agreement shall bind and inure to the benefit of the parties to this
Escrow Agreement and their respective heirs, personal representatives,
successors, and assigns.
9. Sale or Assignment of Holdings Unsecured Debenture. It shall be
a condition of the sale, assignment, hypothecation or other transfer by
Debentureholder or Optionholder, as the case may be, of the Holdings Unsecured
Debenture to any third party not a party to this Escrow Agreement (each a
"Nonparty Debentureholder"), that such Nonparty Debentureholder become a party
to, and agree to be bound by, the terms and conditions contained herein.
10. Notices. Any notice or other communication required or
permitted to be given under this Agreement shall be in writing and shall be
considered given when delivered or when sent by telecopier (with receipt
confirmed) provided that in each case a copy is mailed by registered mail to the
appropriate parties at the addresses set forth below (or at such other address
as a party may specify by notice to the other):
11
446
If to Debentureholder, to:
Renex Corporation
c/o Caledonian Bank and Trust, Limited
P.O. Box 1043
▇▇▇▇▇▇ Town, Grand Cayman
Cayman Islands
British West Indies
Telecopier No.: ________________
Attention: _____________________
If to Optionholder, to:
Caynex, Inc.
c/o Coopers & ▇▇▇▇▇▇▇
Butterfield House
Grand Cayman
Cayman Islands
British West Indies
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with copies to:
c/o Onex Corporation
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer
and
Na-Churs Plant Food Co.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
12
447
and
Onex Food Services, Inc.
c/o Sky Chefs, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President and Chief
Administrative and Financial Officer
and
▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to the Administrative Agent, to:
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If to Holdings, to:
[6550 Rock ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇]
Attention: _____________________
13
448
with a copy to:
▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to the Escrow Agent, to:
[Address of Escrow Agent]
Telecopier No.: __________________
Attention: _______________________
14
449
11. Counterparts. This Escrow Agreement may be executed in one or
more counterparts, each of which will be deemed an original. Whenever pursuant
to this Escrow Agreement any of the parties hereto are to deliver a jointly
signed writing to Escrow Agent or jointly advise Escrow Agent in writing, such
writing may in each and all cases be signed jointly or in counterparts and such
counterparts shall be deemed to be one instrument.
CATERAIR HOLDINGS CORPORATION
By:
--------------------------------------
Name:
Title:
RENEX CORPORATION
By:
--------------------------------------
Name:
Title:
CAYNEX, INC.
By:
--------------------------------------
Name:
Title:
15
450
ACCEPTED this __ day of ___________________
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent under the
Revolver on behalf of the other lenders
named therein
By:
----------------------------------------
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent under the
Term Loan on behalf of the other lenders
named therein
By:
----------------------------------------
Name:
Title:
[ESCROW AGENT]
By:
----------------------------------------
Name:
Title:
Fee:
16
451
Schedule A
Permitted Investments
Investments permitted shall include: (a) obligations issued or
guaranteed by the United States of America; (b) obligations issued or guaranteed
by any person controlled or supervised by and acting as an instrumentality of
the United States of America pursuant to authority granted by the Congress of
the United States of Americas; (c) obligations rated at the time of purchase not
less than "A" or the equivalent by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard &
Poor's Ratings Group, issued or guaranteed by any state of the United States of
America, or the District of Columbia; (d) commercial or finance company paper
which is rated at the time of purchase in the single highest classification,
"A-l+" by Standard & Poor's Ratings Group and "P-1" by ▇▇▇▇▇'▇ Investors
Service, Inc. and which matures not more than 270 days after the date of
purchase; (e) United States dollar denominated deposit accounts, federal funds
and banker's acceptances with domestic commercial banks which have a rating on
their short term certificates of deposit on the date of purchase of "A-l" or
"A-l+" by Standard & Poor's Rating Group and "P-1" by ▇▇▇▇▇'▇ Investors Service,
Inc. and maturing no more than 360 days after the date of purchase; (f)
repurchase agreements fully secured by any obligation set forth in clauses (a)
and (b) above; (g) shares in regulated investment companies substantially all of
the assets of which are invested in investments described in clauses (a) through
(f) above and (h) investment agreements with a bank or insurance company, which
has an unsecured, uninsured and unguaranteed obligation (or claims-paying
ability) rated "A-3" or better by ▇▇▇▇▇'▇ Investors Service, Inc., or is the
lead bank of a parent bank holding company, or an affiliate of any such bank or
insurance company with an uninsured, unsecured and unguaranteed obligation
meeting such rating requirements and either (A) such affiliate meets the
applicable rating requirements or (B) such bank or insurance company guarantees
the obligations of such affiliate under such investment agreement, provided: (i)
interest is paid at least semi-annually at a fixed rate during the entire term
of the agreement, consistent with Bond payment dates; (ii) moneys invested
thereunder may be withdrawn without any penalty, redemption premium, or charge
upon not more than one day's notice (provided such notice may be amended or
canceled at any time prior to the withdrawal date); (iii) the agreement is not
subordinated to any other obligations of such insurance company or bank; (iv)
the same guaranteed interest rate will be paid on any future deposits made to
restore the reserve to its required amount; and (v) the borrower receives an
opinion of counsel that such agreement is an enforceable obligation of such
insurance company or bank.
17
452
EXHIBIT M
ANNEX A
Subordination Provisions to be attached
to each note evidencing an intercompany
loan made by a non-Wholly Owned Subsidiary
of SCIS to SCIS, any Wholly-Owned
Domestic Subsidiary thereof or IFSC
Section 1.01. Subordination of Liabilities. __________________
(the "Company"), for itself, its successors and assigns, covenants and agrees,
and each holder of the Note to which this Annex A is attached (the "Note") by
its acceptance thereof likewise covenants and agrees, that the payment of the
principal of, interest on, and all other amounts owing in respect of, the Note
(the "Subordinated Indebtedness") is hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, to the prior payment in full in
cash of all Senior Indebtedness (as defined in Section 1.07 of this Annex A).
The provisions of this Annex A shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are hereby made obligees
hereunder the same as if their names were written herein as such, and they
and/or each of them may proceed to enforce such provisions.
Section 1.02. Company not to Make Payments with Respect to
Subordinated Indebtedness in Certain Circumstances. (a) Upon the maturity of any
Senior Indebtedness (including interest thereon or fees or any other amounts
owing in respect thereof), whether at stated maturity, by acceleration or
otherwise, all Obligations (as defined in Section 1.07 of this Annex A) owing in
respect thereof, in each case to the extent due and owing, shall first be paid
in full in cash, before any payment, whether in cash, property, securities or
otherwise, is made on account of the Subordinated Indebtedness.
(b) The Company may not, directly or indirectly, make any
payment of any Subordinated Indebtedness and may not acquire any Subordinated
Indebtedness for cash or property until all Senior Indebtedness has been paid in
full in cash if any default or event of default under the SCIS Credit Agreement
(as defined in Section 1.07 of this Annex A), the Caterair Credit Agreement (as
defined in Section 1.07 of this Annex A) or any other issue of Senior
Indebtedness is then in existence or would result therefrom. Each holder of the
Note hereby agrees that, so long as any such default or event of default in
respect of any issue of Senior Indebtedness exists or any restrictions set forth
in any issue of Senior Indebtedness reduces the amount permitted to be paid in
respect of the Note, such holder
453
EXHIBIT M
ANNEX A
Page 2
will not ▇▇▇ for, or otherwise take any action to enforce the Company's
obligations to pay, amounts owing in respect of the Note.
(c) In the event that notwithstanding the provisions of the
preceding subsections (a) and (b) of this Section 1.02, the Company shall make
any payment on account of the Subordinated Indebtedness at a time when payment
is not permitted by said subsection (a) or (b), such payment shall be held by
the holder of the Note, in trust for the benefit of, and shall be paid forthwith
over and delivered to, the holders of Senior Indebtedness or their
representative or the trustee under the indenture or other agreement pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, for application pro rata to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary to
pay all Senior Indebtedness in full in accordance with the terms of such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness. Without in any way modifying the
provisions of this Annex A or affecting the subordination effected hereby if the
hereafter referenced notice is not given, the Company shall give the holder of
the Note prompt written notice of any event which would prevent payments under
Section 1.02(a) or (b).
Section 1.03. Subordination to Prior Payment of all Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Company. Upon any
distribution of assets of the Company upon dissolution, winding up, liquidation
or reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors or
otherwise):
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full in cash of all Senior Indebtedness
(including, without limitation, post-petition interest at the rate
provided in the documentation with respect to the Senior Indebtedness,
whether or not such post-petition interest is an allowed claim against
the debtor in any bankruptcy or similar proceeding) before the holder
of the Note is entitled to receive any payment on account of the
Subordinated Indebtedness;
(b) any payment or distributions of assets of the Company of
any kind or character, whether in cash, property or securities to which
the holder of the Note would be entitled except for the provisions of
this Annex A, shall be paid by the liquidating trustee or agent or
other person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or other trustee or
454
EXHIBIT M
ANNEX A
Page 3
agent, directly to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under
any indenture under which any instruments evidencing any such Senior
Indebtedness may have been issued, to the extent necessary to make
payment in full in cash of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing
provisions of this Section 1.03, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, shall be received by the holder of the Note on account of
Subordinated Indebtedness before all Senior Indebtedness is paid in
full in cash, such payment or distribution shall be received and held
in trust for and shall be paid over to the holders of the Senior
Indebtedness remaining unpaid or unprovided for or their representative
or representatives, or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, for application to the payment of such Senior
Indebtedness until all such Senior Indebtedness shall have been paid in
full in cash, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
Without in any way modifying the provisions of this Annex A or
affecting the subordination effected hereby if the hereafter referenced notice
is not given, the Company shall give prompt written notice to the holder of the
Note of any dissolution, winding up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency or receivership proceedings or upon
assignment for the benefit of creditors or otherwise).
Section 1.04. Subrogation. Subject to the prior payment in
full in cash of all Senior Indebtedness, the holder of the Note shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of assets of the Company applicable to the Senior
Indebtedness until all amounts owing on the Note shall be paid in full, and for
the purpose of such subrogation no payments or distributions to the holders of
the Senior Indebtedness by or on behalf of the Company or by or on behalf of the
holder of the Note by virtue of this Annex A which otherwise would have been
made to the holder of the Note shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the holder of the Note, be
deemed to be payment by the Company to or on account of the Senior Indebtedness,
it being understood that the provisions of this Annex A are and are intended
solely for the purpose of defining the
455
EXHIBIT M
ANNEX A
Page 4
relative rights of the holder of the Note, on the one hand, and the holders of
the Senior Indebtedness, on the other hand.
Section 1.05. Obligation of the Company Unconditional. Nothing
contained in this Annex A or in the Note is intended to or shall impair, as
between the Company and the holder of the Note, the obligation of the Company,
which is absolute and unconditional, to pay to the holder of the Note the
principal of and interest on the Note as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holder of the Note and creditors of the Company other
than the holders of the Senior Indebtedness, nor shall anything herein or
therein (except to the extent set forth in this Annex A) prevent the holder of
the Note from exercising all remedies otherwise permitted by applicable law and
this Annex A upon an event of default under the Note, subject to the rights, if
any, under this Annex A of the holders of Senior Indebtedness in respect of
cash, property, or securities of the Company received upon the exercise of any
such remedy. Upon any distribution of assets of the Company referred to in this
Annex A, the holder of the Note shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, or a
certificate of the liquidating trustee or agent or other person making any
distribution to the holder of the Note, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Annex A.
Section 1.06. Subordination Rights not Impaired by Acts or
Omissions of Company or Holders of Senior Indebtedness. No right of any present
or future holders of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act in
good faith by any such holder, or by any noncompliance by the Company with the
terms and provisions of the Note, regardless of any knowledge thereof which any
such holder may have or be otherwise charged with. The holders of the Senior
Indebtedness may, without in any way affecting the obligations of the holder of
the Note with respect hereto, at any time or from time to time and in their
absolute discretion, change the manner, place or terms of payment of, change or
extend the time of payment of, or renew or alter, any Senior Indebtedness or
amend, modify or supplement any agreement or instrument governing or evidencing
such Senior Indebtedness or any other document referred to therein, or exercise
or refrain from exercising any other of their rights under the Senior
Indebtedness including, without limitation, the waiver of default
456
EXHIBIT M
ANNEX A
Page 5
thereunder and the release of any collateral securing such Senior Indebtedness,
all without notice to or assent from the holder of the Note.
Section 1.07. Senior Indebtedness. The term "Senior
Indebtedness" shall mean all Obligations (as defined below) (i) of the Company
under, or in respect of, the Credit Agreement (as amended, modified,
supplemented, extended, restated, refinanced, replaced or refunded from time to
time, the "SCIS Credit Agreement"), dated as of September 29, 1995 and amended
and restated as of August 28, 1997, by and among Onex Food Services, Inc., SC
International Services, Inc. ("SCIS"), Caterair Holdings Corporation, Caterair
International Corporation ("Caterair"), the lenders from time to time party
thereto, Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers,
Bankers Trust Company, as Syndication Agent, ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Administrative Agent, and The Bank of New York, as Co-Agent, and
any renewal, extension, restatement, refinancing or refunding thereof, (ii) of
the Company under the other Credit Documents (as defined in the SCIS Credit
Agreement) to which it is a party (including, under the Subsidiaries Guaranty
(as defined in the SCIS Credit Agreement)), (iii) of the Company under, or in
respect of, any Interest Rate Protection Agreements (as defined in the SCIS
Credit Agreement) or Other Hedging Agreements (as defined in the SCIS Credit
Agreement), (iv) of the Company, under, or in respect of, the Term Loan
Agreement (as amended, modified, supplemented, extended, restated, refinanced,
replaced or refunded from time to time, the "Caterair Credit Agreement"), dated
as of August 28, 1997, by and among SCIS, Caterair, the lenders from time to
time party thereto, Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as
Co-Arrangers, Bankers Trust Company, as Syndication Agent, and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Administrative Agent and (v) of the Company under
the other Credit Documents (as defined in the Caterair Credit Agreement) to
which it is a party (including under the Subsidiaries Guaranty (as defined in
the Caterair Credit Agreement)). As used herein, the term "Obligation" shall
mean any principal, interest, premium, penalties, fees, expenses, indemnities
and other liabilities and obligations payable under the documentation governing
any Senior Indebtedness (including interest accruing after the commencement of
any bankruptcy, insolvency, receivership or similar proceeding, whether or not
such interest is an allowed claim against the debtor in any such proceeding).
457
EXHIBIT N
LETTER AGREEMENT
ONEX FOOD SERVICES, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
CAYNEX, INC.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ Indies
August 28, 1997
▇▇▇▇▇▇ Guaranty Trust Company
of New York
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Pledge by Renex Corporation ("Reflex") of the $43,800,000
principal amount Senior Debenture due 2001, dated
September 29, 1995, made by Caterair Holdings Corporation
("Holdings") (together with all Interest Debentures (as
defined therein) issued or to be issued thereunder or
issued prior to September 29, 1995 pursuant to the
$280,000,000 principal amount Senior Debenture due 2001,
dated December 25, 1989, made by Holdings, the "Holdings
Unsecured Debenture") to Onex Food Services, Inc. ("OFSI")
and Caynex, Inc. ("Caynex").
Ladies and Gentlemen:
Please be advised that, (i) pursuant to a Pledge Agreement, dated
December 19, 1995 (the "Pledge Agreement"), Renex has pledged to OFSI and
granted to OFSI a security interest in the Collateral (as defined in the Pledge
Agreement and including, without limitation, the Holdings Unsecured Debenture),
and (ii) pursuant to an Option Agreement, dated December 19, 1995 (the "Option
Agreement"), Renex has granted to Caynex a subordinated security interest in the
Holdings Unsecured Debenture. The Holdings Unsecured Debenture has been
458
pledged by OFSI to you and is on deposit with you in connection with (i) that
certain Credit Agreement, dated as of September 29, 1995 and amended and
restated as of August 28, 1997, among Holdings, Caterair International
Corporation ("Caterair"), OFSI, SC International Services, Inc. ("SCIS"), the
lenders from time to time party thereto, Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇
Securities Inc. as Co-Arrangers, Bankers Trust Company as Syndication Agent,
▇▇▇▇▇▇ Guaranty Trust Company of New York as Administrative Agent, and The Bank
of New York as Co-Agent (the "Revolver") and (ii) that certain Term Loan
Agreement, dated as of August 28, 1997, among SCIS, Caterair, the lenders from
time to time party thereto, Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities
Inc. as Co-Arrangers, Bankers Trust Company as Syndication Agent, and ▇▇▇▇▇▇
Guaranty Trust Company of New York as Administrative Agent (the "Term Loan")
(each of the Revolver and the Term Loan as amended, modified, supplemented,
extended, restated, refinanced, replaced or refunded from time to time,
collectively, the "Credit Agreements").
By your execution of this letter agreement in the space indicated
below, you hereby (i) agree to hold the Collateral, as bailee for OFSI and
Caynex, subject to your prior security interest, and (ii) agree that, upon
payment in full of all amounts and termination of all commitments to make
financial accommodations under the Credit Agreements, you will deliver the
Collateral to OFSI at do Sky Chefs, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ (Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President and Chief
Financial and Administrative Officer), or to OFSI's designee if so notified in a
writing by OFSI.
OFSI and Caynex each acknowledge that you are acting merely as
bailee for purposes of perfecting their respective security interests and that
you have undertaken no duty to either of them (and shall have no liability
whatsoever to either of them in respect thereof) and are not otherwise acting as
agent for either of them with respect to the Collateral.
Very truly yours,
ONEX FOOD SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Secretary
2
459
CAYNEX, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
Agreed to:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent under
the Revolver on behalf of the other
lenders named therein
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent under
the Term Loan on behalf of the other
lenders named therein
By: /s/ [ILLEGIBLE]
---------------------------------
Name: [ILLEGIBLE]
Title: [ILLEGIBLE]
RENEX CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signer
3
460
EXHIBIT O
ASSIGNMENT AND ASSUMPTION AGREEMENT
Date __________, 19__
Reference is made to the Credit Agreement described in Item 2
of Annex I hereto (as such Credit Agreement may hereafter be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Unless defined in Annex I hereto, terms defined in the Credit Agreement are used
herein as therein defined. ___________ (the "Assignor") and __________ (the
"Assignee") hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee
without recourse and without representation or warranty (other than as expressly
provided herein), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the date hereof which represents the percentage
interest specified in Item 4 of Annex I hereto (the "Assigned Share") of all of
the Assignor's outstanding rights and obligations under the Credit Agreement
with respect to the Assigned Share of the Total Revolving Loan Commitment and of
any outstanding Revolving Loans, Swingline Loans and Letters of Credit.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any other Credit Party or the performance or observance by the
Borrower or any other Credit Party of any of its obligations under the Credit
Agreement or the other Credit Documents to which they are a party or any other
instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement and the other Credit Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption Agreement; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
any Co-Arranger, the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) confirms that it is an Eligible Transferee as required under Section
13.04(b) of the Credit Agreement; (iv) appoints and authorizes each Agent and
the Collateral Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Credit Documents as are
delegated to such Agent and the Collateral Agent by the
461
EXHIBIT O
Page 2
terms thereof, together with such powers as are reasonably incidental thereto;
[and] (v) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement and other Credit
Documents are required to be performed by it as a Bank[; and (vi) to the extent
legally entitled to do so, attaches the forms described in Section 13.04(b) of
the Credit Agreement].(1)
4. Following the execution of this Assignment and Assumption
Agreement by the Assignor and the Assignee, an executed original hereof
(together with all attachments) will be delivered to the Administrative Agent.
This Assignment and Assumption shall be effective, unless otherwise specified in
Item 5 of Annex I hereto (the "Settlement Date"), upon the receipt of the
consent of the Administrative Agent and each Issuing Bank to the extent required
by Section 13.04(b) of the Credit Agreement, receipt by the Administrative Agent
of the assignment fee referred to in such Section 13.04(b) and the recordation
of the assignment as provided in Section 13.16 of the Credit Agreement.
5. Upon the delivery of a fully executed original hereof to
the Administrative Agent, as of the Settlement Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Assumption Agreement, have the rights and obligations of a Bank thereunder and
under the other Credit Documents and (ii) the Assignor shall, to the extent
provided in this Assignment and Assumption Agreement, relinquish its rights and
be released from its obligations under the Credit Agreement and the other Credit
Documents.
6. It is agreed that the Assignee shall be entitled to (x) all
interest on the Assigned Share of the Revolving Loans at the rates specified in
Item 6 of Annex I; (y) all Commitment Commission on the Assigned Share of the
Total Revolving Loan Commitment (if not theretofore terminated) at the rate
specified in Item 7 of Annex I hereto; and (z) all Letter of Credit Fees on the
Assignee's participation in all Letters of Credit at the rate specified in Item
8 of Annex I hereto, which, in each case, accrue on and after the Settlement
Date, such interest, Commitment Commission and Letter of Credit Fees to be paid
by the Administrative Agent directly to the Assignee. It is further agreed that
all payments of principal made on the Assigned Share of the Revolving Loans
which occur on and after the Settlement Date will be paid directly by the
Administrative Agent to the Assignee. Upon the Settlement Date, the Assignee
shall pay to the Assignor an amount specified by the Assignor in writing which
represents the Assigned Share of the principal amount of the Revolving Loans and
made by the Assignor pursuant to the Credit Agreement which are outstanding on
the Settlement Date. The Assignor and the Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to the
Settlement Date directly between themselves.
--------
(1) Include if the Assignee is organized under the laws of a jurisdiction
outside of the United States.
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Page 3
7. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. This Assignment and Assumption Agreement may be executed in
any number of counterparts each of which so executed and delivered shall be an
original, but all of which together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Assignment and Assumption
Agreement, as of the date first above written, such execution also being made on
Annex I hereto.
Accepted this _____ day [NAME OF ASSIGNOR]
of _______, ____ as Assignor
By_____________________________
Title:
[NAME OF ASSIGNEE]
as Assignee
By_____________________________
Title:
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Consented to as of ____________ __, _____.
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
By_________________________________________
Title:
_____________________
as an Issuing Bank
By_________________________________________
Title:
NAME OF EACH OTHER ISSUING BANK
By________________________
Title:
464
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
ANNEX I
1. Borrower: SC International Services, Inc.
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of September 29, 1995 and amended and
restated as of August 28, 1997, among Onex Food Services, Inc., SC
International Services, Inc., Caterair Holdings Corporation, Caterair
International Corporation, the Banks from time to time party thereto,
Bankers Trust Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Co-Arrangers,
Bankers Trust Company, as Syndication Agent, ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Administrative Agent, and The Bank of New York,
as Co-Agent, as amended to the date hereof.
3. Date of Assignment Agreement:
4. Amounts (as of date of item #3 above):
Revolving
Loan Commitment
---------------
a. Aggregate Amount
for all Banks $__________
b. Assigned Share $__________
c. Amount of Share $__________
5. Settlement Date:
6. Rate of Interest As set forth in Section 1.08 of the
Credit Agreement (unless otherwise
agreed to by the Assignor and the
Assignee)(2)
------------
(2) The Borrower and the Administrative Agent shall direct the entire amount of
the interest to the Assignee at the rate set forth in Section 1.08 of the Credit
Agreement with the Assignor and Assignee effecting the agreed upon sharing of
the interest through payments by the Assignee to the Assignor.
465
Annex I
Page 2
7. Commitment Commission: As set forth in Section 3.01(a) of
the Credit Agreement (unless
otherwise agreed to by the Assignor
and the Assignee)
8. Letter of Credit Fees As set forth in Section 3.01(b) of
the Credit Agreement (unless
otherwise agreed to by the Assignor
and the Assignee)
9. Notice:
ASSIGNOR:
_______________
_______________
_______________
Attention:
Telephone:
Telecopier:
Reference:
ASSIGNEE:
_______________
_______________
_______________
Attention:
Telephone:
Telecopier:
Reference:
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Annex I
Page 3
Payment Instructions:
ASSIGNOR:
_______________
_______________
_______________
Attention:
Reference:
ASSIGNEE:
_______________
_______________
_______________
Attention:
Reference:
Accepted and Agreed:
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By_______________________ By______________________
_______________________ ______________________
(Print Name and Title) (Print Name and Title)