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EXHIBIT 10.35
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TERM LOAN AGREEMENT
among
SC INTERNATIONAL SERVICES, INC.,
CATERAIR INTERNATIONAL CORPORATION,
VARIOUS BANKS,
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
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Dated 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; etc.................................... 1
1.02 Notice of Borrowing..................................... 2
1.03 Disbursement of Funds................................... 2
1.04 Notes................................................... 3
1.05 Pro Rata Borrowings..................................... 4
1.06 Interest................................................ 4
1.07 Interest Periods........................................ 5
1.08 Increased Costs, Illegality, etc........................ 7
1.09 Compensation............................................ 10
1.10 Change of Lending Office................................ 10
1.11 Replacement of Banks.................................... 10
SECTION 2. Fees; Reductions of Commitment.......................... 11
2.01 Fees.................................................... 11
2.02 Mandatory Reduction of Commitments...................... 11
SECTION 3. Prepayments; Payments; Taxes............................ 12
3.01 Voluntary Prepayments................................... 12
3.02 Mandatory Repayments.................................... 12
3.03 Method and Place of Payment............................. 18
3.04 Net Payments............................................ 18
SECTION 4. Conditions Precedent.................................... 20
4.01 Execution of Agreement; Notes........................... 20
4.02 Fees, etc............................................... 20
4.03 Officer's Certificate................................... 20
4.04 Opinion of Counsel...................................... 20
4.05 Corporate Documents; Proceedings; etc................... 21
4.06 SCIS Credit Agreement; etc.............................. 22
4.07 Issuance of 9 1/4% Senior Subordinated Notes............ 22
4.08 Pledge Agreements....................................... 22
4.09 Security Agreement...................................... 23
4.10 Mortgage Amendments; Title Insurance.................... 23
4.11 Guaranties.............................................. 24
(i)
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4.12 Adverse Change; Approvals; etc.......................... 24
4.13 Litigation.............................................. 25
4.14 Solvency Certificate; Insurance Certificates............ 25
4.15 Pro Forma Balance Sheets................................ 25
4.16 Caterair Holdings Subordination Agreement, etc.......... 25
4.17 No Default; Representations and Warranties.............. 26
4.18 Notice of Borrowing..................................... 26
4.19 13% Senior Subordinated Note Tender Offer; 13% Senior
Subordinated Note Consent; 13% Senior Subordinated
Note Indenture Supplement.............................. 26
SECTION 5. Representations, Warranties and Agreements.............. 27
5.01 Corporate Status........................................ 27
5.02 Corporate Power and Authority........................... 28
5.03 No Violation............................................ 28
5.04 Governmental Approvals.................................. 28
5.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Financial Projections..................... 29
5.06 Litigation.............................................. 30
5.07 True and Complete Disclosure............................ 30
5.08 Use of Proceeds; Margin Regulations..................... 30
5.09 Tax Returns and Payments................................ 31
5.10 Compliance with ERISA................................... 31
5.11 The Security Documents.................................. 32
5.12 Representations and Warranties in Other Documents....... 33
5.13 Properties.............................................. 34
5.14 Capitalization.......................................... 34
5.15 Subsidiaries............................................ 34
5.16 Compliance with Statutes, etc........................... 35
5.17 Investment Company Act.................................. 35
5.18 Public Utility Holding Company Act...................... 35
5.19 Environmental Matters................................... 35
5.20 Labor Relations......................................... 36
5.21 Patents, Licenses, Franchises and Formulas.............. 36
5.22 Indebtedness; Subordination Provisions; etc............. 37
5.23 Consummation of Transaction............................. 37
SECTION 6. Affirmative Covenants................................... 38
6.01 Information Covenants................................... 38
(ii)
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6.02 Books, Records and Inspections.......................... 42
6.03 Maintenance of Property; Insurance...................... 42
6.04 Corporate Franchises.................................... 43
6.05 Compliance with Statutes, etc........................... 44
6.06 Compliance with Environmental Laws...................... 44
6.07 Performance of Obligations.............................. 45
6.08 Payment of Taxes........................................ 45
6.09 Additional Security; Further Assurances................. 46
6.10 13% Senior Subordinated Note Tender Offer; Escrows...... 47
SECTION 7. Negative Covenants...................................... 48
7.01 Limitation on Restricted Payments....................... 48
7.02 Limitation on Transactions with Affiliates.............. 51
7.03 Limitation on Incurrence of Additional Indebtedness..... 53
7.04 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.................................. 53
7.05 Limitation on Asset Sales; etc.......................... 55
7.06 Limitation on Preferred Stock of Subsidiaries........... 57
7.07 Limitation on Liens..................................... 58
7.08 Conduct of Business of SCIS and Its Restricted
Subsidiaries ........................................... 58
7.09 Conduct of Business of Caterair......................... 58
7.10 Guarantor Capital Stock................................. 59
7.11 Merger, etc............................................. 59
7.12 Senior Subordinated Notes, etc.......................... 59
SECTION 8. Events of Default....................................... 60
8.01 Payments................................................ 60
8.02 Representations, etc.................................... 60
8.03 Covenants............................................... 60
8.04 Default Under the SCIS Credit Agreement................. 60
8.05 Default Under Other Indebtedness........................ 61
8.06 Bankruptcy, etc......................................... 61
8.07 Security Documents...................................... 62
8.08 Guaranties; etc......................................... 62
8.09 Judgments............................................... 62
8.10 Change of Control....................................... 63
SECTION 9. Definitions and Accounting Terms........................ 63
9.01 Defined Terms........................................... 63
(iii)
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SECTION 10. The Agents............................................. 99
10.01 Appointment............................................ 99
10.02 Nature of Duties....................................... 99
10.03 Lack of Reliance on the Agents......................... 99
10.04 Certain Rights of the Agents...........................100
10.05 Reliance...............................................100
10.06 Indemnification........................................100
10.07 Each Agent in its Individual Capacity..................101
10.08 Holders................................................101
10.09 Resignation by the Agents..............................101
SECTION 11. Miscellaneous..........................................102
11.01 Payment of Expenses, etc...............................102
11.02 Right of Setoff........................................103
11.03 Notices................................................104
11.04 Benefit of Agreement...................................104
11.05 No Waiver; Remedies Cumulative.........................106
11.06 Payments Pro Rata......................................107
11.07 Calculations; Computations.............................107
11.08 GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL............................108
11.09 Counterparts...........................................109
11.10 Effectiveness..........................................109
11.11 Headings Descriptive...................................109
11.12 Amendment or Waiver; etc...............................110
11.13 Survival...............................................111
11.14 Domicile of Loans......................................111
11.15 Confidentiality........................................111
11.16 Register...............................................113
11.17 Assumption by SCIS.....................................113
11.18 Certain Matters Relating to OFSI.......................114
11.19 Certain Post-Closing Actions...........................114
SECTION 12. SCIS Guaranty..........................................115
12.01 The Guaranty...........................................115
12.02 Bankruptcy.............................................115
12.03 Nature of Liability....................................115
12.04 Independent Obligation.................................115
12.05 Authorization..........................................116
(iv)
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12.06 Reliance...............................................117
12.07 Subordination..........................................117
12.08 Waiver.................................................117
12.09 Maximum Amount.........................................119
SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Real Property
SCHEDULE IV Subsidiaries
SCHEDULE V Existing Indebtedness
SCHEDULE VI Existing Liens
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 SCIS Note
EXHIBIT B-2 Caterair Note
EXHIBIT C Section 3.04(b)(ii) Certificate
EXHIBIT D-1 Opinion of ▇▇▇▇, Scholer, Fierman,
▇▇▇▇ & Handler, LLP (Corporate)
EXHIBIT D-2 Opinion of ▇▇▇▇, Scholer, Fierman,
▇▇▇▇ & Handler, LLP (Tax)
EXHIBIT D-3 Accountant's Letter from Price Waterhouse
EXHIBIT E Officers' Certificate
EXHIBIT F Solvency 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 OFSI Guaranty
EXHIBIT K Assignment and Assumption Agreement
EXHIBIT L Amended and Restated Caterair Holdings
Subordination Agreement
EXHIBIT M Subordination Provisions
EXHIBIT N Letter Agreement
(v)
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TERM LOAN AGREEMENT, dated as of August 28, 1997, among SC
INTERNATIONAL SERVICES, INC. a Delaware corporation ("SCIS"), CATERAIR
INTERNATIONAL CORPORATION, a Delaware corporation ("Caterair", and together with
SCIS, each a "Borrower" and, collectively, the "Borrowers"), the Banks (as
defined in Section 9) party hereto from time to time, BANKERS TRUST COMPANY and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as Co-Arrangers (in such capacity, collectively,
the Co-Arrangers"), BANKERS TRUST COMPANY, as Syndication Agent (in such
capacity, the "Syndication Agent"), and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, as Administrative Agent (in such capacity, together with any successor
thereto appointed pursuant to Section 10.09, the "Administrative Agent"). All
capitalized terms used herein and defined in Section 9 are used herein as
therein defined.
W I T N E S S E T H :
WHEREAS, (i) Caterair wishes to obtain its term loan facility
hereunder to refinance its outstanding term loans under the Original
SCIS/Caterair Credit Agreement and (ii) SCIS wishes to obtain its term loan
facility hereunder to finance, in part, the 13% Senior Subordinated Note Tender
Offer; and
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Banks are willing to make available to the Borrowers the respective
credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments; etc. (a) Subject to and upon the terms and
conditions set forth herein, each Bank with a SCIS Commitment severally agrees
to make, on the Closing Date, a term loan (each a "SCIS Loan" and, collectively,
the "SCIS Loans") to SCIS, which SCIS Loans shall (i) be maintained as and/or
converted into one or more Borrowings of Eurodollar Loans (subject to
conversion, in whole or in part, into Base Rate Loans pursuant to Section 1.08
or as provided in last sentence of Section 1.07) and (ii) be made by each such
Bank in that initial aggregate principal amount as is equal to the SCIS
Commitment of such Bank on the Closing Date (before giving effect to the
termination thereof on such date pursuant to Section 2.02(b)). Once
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repaid, SCIS Loans incurred hereunder may not be reborrowed. Notwithstanding
anything to the contrary contained in this Agreement, the Loans to be incurred
on the Closing Date shall be incurred as Base Rate Loans and shall be converted
into Eurodollar Loans with a three month Interest Period on August 29, 1997.
(b) Subject to and upon the terms and conditions set forth herein,
each Bank with a Caterair Commitment severally agrees to make, on the Closing
Date, a term loan (each a "Caterair Loan" and, collectively, the "Caterair
Loans") to Caterair, which Loans shall (i) be maintained as and/or converted
into one or more Borrowings of Eurodollar Loans (subject to conversion, in whole
or in part, into Base Rate Loans pursuant to Section 1.08 or as provided in last
sentence of Section 1.07) and (ii) be made by each such Bank in that initial
aggregate principal amount as is equal to the Caterair Commitment of such Bank
on the Closing Date (before giving effect to the termination thereof on such
date pursuant to Section 2.02(b)). Once repaid, Caterair Loans incurred
hereunder may not be reborrowed.
(c) The aggregate principal amount of each Borrowing of Eurodollar
Loans shall not be less than the Minimum Borrowing Amount applicable thereto.
More than one Borrowing may occur on the same date, but at no time shall there
be outstanding more than five Borrowings of Eurodollar Loans.
1.02 Notice of Borrowing. When a Borrower desires to incur its Loans
hereunder, such Borrower shall give the Administrative Agent at the Notice
Office at least three Business Days' prior written notice thereof, provided that
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. Such written notice (the "Notice
of Borrowing"), except as otherwise expressly provided in Section 1.08, shall be
irrevocable and shall be given by the respective Borrower in the form of Exhibit
A, appropriately completed to specify the aggregate principal amount of the
Loans to be made to such Borrower pursuant to such Borrowing, the date of such
Borrowing (which shall be a Business Day) and the initial Interest Period to be
applicable to such Borrowing. The Administrative Agent shall promptly give each
Bank which is required to make Loans of the Tranche specified in the respective
Notice of Borrowings 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 respective Notice of Borrowing.
1.03 Disbursement of Funds. Not later than 12:00 Noon (New York
time) on the Closing Date, each Bank with a Commitment of the respective Tranche
will make available its pro rata portion (determined in accordance with Section
1.05) of the respective Loans required to be made by it on such date. All such
amounts will be made available in immediately available Dollar denominated funds
at the Payment
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Office and the Administrative Agent will make available to the respective
Borrowers 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 Closing Date that such Bank does not intend to
make available to the Administrative Agent such Bank's portion of the Loans
required to be made by it on such date, the Administrative Agent may assume that
such Bank has made such amount available to the Administrative Agent on the
Closing Date and the Administrative Agent may, in reliance upon such assumption,
make available to the respective 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 respective Borrower and such
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 respective 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 such
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 such Borrower,
the rate of interest applicable to the Loans, as determined pursuant to Section
1.06. Nothing in this Section 1.03 shall be deemed to relieve any Bank from its
obligation to make its Loans hereunder or to prejudice any rights which any
Borrower may have against any Bank as a result of any failure by such Bank to
make Loans hereunder.
1.04 Notes. (a) Each Borrower's obligation to pay the principal of,
and interest on, the Loans made by each Bank to such Borrower shall be evidenced
(i) if SCIS Loans, by a promissory note duly executed and delivered by SCIS
substantially in the form of Exhibit B-1 with blanks appropriately completed in
conformity herewith (each a "SCIS Note" and, collectively, the "SCIS Notes") and
(ii) if Caterair Loans, by a promissory note duly executed and delivered by
Caterair substantially in the form of Exhibit B-2 with blanks appropriately
completed in conformity herewith (each a "Caterair Note" and, collectively, the
"Caterair Term Notes").
(b) The SCIS Note issued to each Bank with a SCIS Commitment or
outstanding SCIS Loans shall (i) be executed by SCIS, (ii) be payable to such
Bank or its registered assigns and be dated the Closing Date (or if issued
thereafter, the date of issuance thereof), (iii) be in a stated principal amount
equal to the aggregate principal
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amount of the SCIS Loans made by such Bank and be payable in the principal
amount of the outstanding SCIS 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 1.06 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 3.01, and mandatory repayment as
provided in Section 3.02, and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.
(c) The Caterair Note issued to each Bank with a Caterair Commitment
or outstanding Caterair Loans shall (i) be executed by Caterair, (ii) be payable
to such Bank or its registered assigns and be dated the Closing Date (or if
issued thereafter, the date of issuance thereof), (iii) be in a stated principal
amount equal to the aggregate principal amount of the Caterair Loans made by
such Bank and be payable in the principal amount of the outstanding Caterair
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 1.06 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 3.01, and mandatory repayment as provided in Section 3.02, 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 any Borrower's
obligations in respect of such Loans.
1.05 Pro Rata Borrowings. All Borrowings of SCIS Loans and Caterair
Loans under this Agreement shall be incurred from the Banks pro rata on the
basis of their SCIS Commitments and Caterair Commitments, as the case may be. 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.
1.06 Interest. (a) Each Borrower agrees to pay interest in respect
of the unpaid principal amount of each Base Rate Loan made to such Borrower 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 1.08 or 1.12, as
applicable, at a rate per
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annum which shall be equal to the sum of the Applicable Margin plus the Base
Rate in effect from time to time.
(b) Each Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan made to such Borrower 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 1.08, 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.
(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 respective Borrower and the Banks
thereof. Each such determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
1.07 Interest Periods. On or prior to 11:00 A.M. (New York time) on
the third Business Day prior to the Closing Date (in the case of the initial
Interest Period or Periods applicable to the Eurodollar Loans) or on or prior to
11:00 A.M. (New York time) on the third Business Day prior to the expiration of
an Interest Period applicable such Eurodollar Loans (in the case of any
subsequent Interest Period), each 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
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Loan, which Interest Period shall, at the option of such 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 all Eurodollar Loans shall
commence on the Closing Date and each Interest Period occurring thereafter
in respect of such Eurodollar Loans shall commence (x) on the day on which
the next preceding Interest Period applicable thereto expires or (y) only
in the circumstances provided in Section 1.08(d)(y) (where all Eurodollar
Loans have theretofore been converted into Base Rate Loans), on the
Business Day specified in Section 1.08(d)(y);
(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 relating to a Eurodollar Loan would
otherwise expire on a day which is not a Business Day, such Interest
Period shall expire on the next succeeding 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) no Interest Period in respect of any Borrowing of any Tranche of
Eurodollar Loans shall be selected which extends beyond any date upon
which a mandatory repayment of such Tranche of Loans will be required to
be made under Section 3.02(a) if the aggregate principal amount of such
Tranche of Loans which have Interest Periods which will expire after such
date will be in excess of the aggregate principal amount of such Tranche
of Loans then outstanding less the aggregate amount of such required
prepayment; and
(vi) no Interest Period in respect of any Borrowing of Eurodollar
Loans shall be selected which extends beyond the Final Maturity Date.
If (x) by 11:00 A.M. (New York time) on the third Business Day prior
to the expiration of any Interest Period applicable to a Borrowing of Eurodollar
Loans the respective Borrower has failed to give the Administrative Agent notice
of such
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Borrower's election for a new Interest Period to be applicable to such
Eurodollar Loans, such Borrower shall be deemed to have elected a one-month
Interest Period to be applicable to such Eurodollar Loan effective as of the
expiration date of such current Interest Period or (y) upon the expiration of
any Interest Period, such Borrower is not permitted to elect a new Interest
Period to be applicable to such Eurodollar Loans by virtue of the application of
clause (vi) above, such 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.
1.08 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 (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
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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 respective Borrowers that have incurred such Eurodollar
Loans 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, on the last day of the then current Interest Period or Interest Periods,
all Eurodollar Loans shall be automatically converted to Base Rate Loans, until
such time as the Administrative Agent notifies the respective Borrower and the
Banks that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, in which event Section 1.08(d) shall apply, (y) in the
case of clause (ii) above, such 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 such 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 respective Borrower shall take one of the actions specified in
Section 1.08(b) as promptly as possible and, in any event, within the time
period required by law. Each of the Administrative Agents and each Bank agrees
that if it gives notice to any Borrower of any of the events described in clause
(i) or (iii) above, it shall promptly notify such 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 convert Base Rate Loans into Eurodollar Loans on the
terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.08(a)(ii) or (iii), the respective Borrower
may (and in the case of a Eurodollar Loan affected by the circumstances
described in Section 1.08(a)(iii) shall), 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 until such time as the circumstances
described in Section 1.08(a)(ii) or (iii) shall no longer be applicable in which
event clause (d) below shall apply, pro-
-8-
15
vided, that, if more than one Bank is affected at any time, then all affected
Banks must be treated the same pursuant to this Section 1.08(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 Closing 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 Commitments hereunder or its obligations hereunder, then the Borrowers
jointly and severally agree 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 1.08(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 1.08(c), will give
prompt written notice thereof to the Borrowers, which notice shall show the
basis for calculation of such additional amounts.
(d) In the event that any Base Rate Loan is outstanding at any time
and the relevant circumstances described in Section 1.08(a)(i), (ii) and/or
(iii), as the case may be, cease to be applicable, the respective Bank or Banks
or the Administrative Agent (as applicable) shall give prompt notice thereof to
the respective Borrower and the Administrative Agent (as applicable) and (x) if
a Borrowing of Eurodollar Loans is outstanding at such time (from one or more
Banks which were not affected by such circumstances or as a result of the
application of following clause (y)), then on the last day of the Interest
Period then applicable thereto the Base Rate Loans of the respective affected
Bank or Banks to which the circumstances described above have ceased to be
applicable shall be converted back into (and thereafter shall form a part of)
the respective Borrowing of Eurodollar Loans (until such time, if any, as
Section 1.08(a) and (b) shall thereafter become applicable) and (y) if no
Eurodollar Loans remain outstanding at such time, then on the third Business Day
thereafter the Base Rate Loans of the respective Bank or Banks to which the
circumstances described above shall cease to be applicable shall be converted
into a Borrowing of Eurodollar Loans (with an Interest Period of three months
beginning on said third Business Day).
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1.09 Compensation. Each 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) if any repayment by such Borrower
(including any repayment made pursuant to Section 3.01 or 3.02 or a result of an
acceleration of the Loans pursuant to Section 8) occurs on a date which is not
the last day of an Interest Period with respect thereto; (ii) if any prepayment
is not made on any date specified in a notice of prepayment given by such
Borrower; or (iii) as a consequence of (x) any other default by such Borrower to
repay its Loans when required by the terms of this Agreement or any Note held by
such Bank or (y) any election made pursuant to Section 1.08(b).
1.10 Change of Lending Office. Each Bank agrees that on the
occurrence of any event giving rise to the operation of Section 1.08(a)(ii) or
(iii), Section 1.08(c) or Section 3.04 with respect to such Bank, such Bank
will, if requested by the respective Borrower, use reasonable efforts (subject
to overall policy considerations of such Bank) to designate another lending
office for any Loans 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
1.10 shall affect or postpone any of the obligations of any Borrower or the
right of any Bank provided in Sections 1.08 and 3.04 (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).
1.11 Replacement of Banks. If any Bank (x) 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 11.12(b) or (y) is owed increased costs under Section 1.08 (a)(ii) or
(iii), Section 1.08(c) or Section 3.04 in a material amount in excess of those
being generally charged by the other Banks, the Borrowers shall have the right,
in accordance with the requirements of Section 11.04(b), if no Default or Event
of Default then exists (or in the case of preceding clause (x), no Default or
Event of Default would exist after giving effect to such replacement), to
replace such Bank (the "Replaced Bank") with one or more Eligible Transferees
(collectively, the "Replacement Bank") each of whom shall be required to be
reasonably acceptable to the Administrative Agent, provided, that:
(i) at the time of any replacement pursuant to this Section 1.11,
the Replaced Bank and the Replacement Bank shall enter into one or more
Assign-
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ment and Assumption Agreements pursuant to Section 11.04(b) (and with all
fees payable pursuant to said Section 11.04(b) to be paid by the
Replacement Bank) pursuant to which the Replacement Bank shall acquire all
of the outstanding Loans of the Replaced Bank and, in connection
therewith, shall pay to the Replaced Bank in respect thereof an amount
equal to the principal of, and all accrued interest on, all outstanding
Loans of the Replaced Bank; and
(ii) all obligations of the Borrowers 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
11.16 and, if so requested by the Replacement Bank, delivery to the Replacement
Bank of the appropriate Note or Notes executed by the Borrowers, 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 1.08, 1.09, 3.04,
11.01 and 11.06), which shall survive as to such Replaced Bank.
SECTION 2. Fees; Reductions of Commitment.
2.01 Fees. The Borrowers jointly and severally agree to pay to the
Administrative Agent and the Co-Arrangers, for their own account, such other
fees as have been agreed to in writing by such Credit Parties and the
Administrative Agent and the Co-Arrangers.
2.02 Mandatory Reduction of Commitments. (a) The Total Commitments
(and the Commitment of each of the Banks) shall terminate in their entirety on
September 30, 1997 unless the Closing Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reduction pursuant
to this Section 2.02, the Total Commitments (and the Commitment of each Bank)
shall terminate in their entirety on the Closing Date (after giving effect to
the making of the Loans on such date).
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SECTION 3. Prepayments; Payments; Taxes.
3.01 Voluntary Prepayments. Each Borrower shall have the right to
prepay the Loans owing by such Borrower, without premium or penalty, in whole or
in part at any time and from time to time on the following terms and conditions:
(i) such Borrower shall give the Administrative Agent prior to 12:00
Noon (New York time) at the Notice Office at least three Business Days'
prior written notice (or telephonic notice promptly confirmed in writing)
of such Borrower's intent to prepay Loans, 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 with
outstanding Loans of the respective Tranche;
(ii) each such prepayment shall be in an aggregate principal amount
of at least $1,000,000, provided that no 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;
(iii) each such prepayment in respect of any Loans of a respective
Tranche shall be applied pro rata among the Loans of the various Banks of
such Tranche (based on the relative outstanding principal amounts
thereof); and
(iv) each such prepayment of Loans of a respective Tranche shall be
applied to reduce the then remaining Scheduled Repayments of such Tranche
in inverse order of maturity.
3.02 Mandatory Repayments (a) In addition to any other mandatory
repayments pursuant to this Section 3.02, Caterair shall be required to repay
that principal amount of Caterair Loans, to the extent then outstanding, as is
set forth below opposite such date (each such repayment, as the same may be
reduced as provided in Sections 3.01 and 3.02(h), a "Caterair Scheduled
Repayment"):
Caterair
Scheduled
Repayment Date Amount
-------------- ------------
December 15, 1997 $ 400,000
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19
March 15, 1998 $ 400,000
June 15, 1998 $ 400,000
September 15, 1998 $ 400,000
December 15, 1998 $ 400,000
March 15, 1999 $ 400,000
June 15, 1999 $ 400,000
September 15, 1999 $ 400,000
December 15, 1999 $ 400,000
March 15, 2000 $ 400,000
June 15, 2000 $ 400,000
September 15, 2000 $ 400,000
December 15, 2000 $ 400,000
March 15, 2001 $ 400,000
June 15, 2001 $ 400,000
September 15, 2001 $ 400,000
December 15, 2001 $ 400,000
March 15, 2002 $ 400,000
June 15, 2002 $ 400,000
September 15, 2002 $ 400,000
December 15, 2002 $ 400,000
March 15, 2003 $ 400,000
June 15, 2003 $ 400,000
September 15, 2003 $ 400,000
December 15, 2003 $ 400,000
March 15, 2004 $ 400,000
June 15, 2004 $ 400,000
September 15, 2004 $ 400,000
December 15, 2004 $ 400,000
March 15, 2005 $ 400,000
June 15, 2005 $ 400,000
September 15, 2005 $ 400,000
December 15, 2005 $ 400,000
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20
March 15, 2006 $ 400,000
June 15, 2006 $ 400,000
September 15, 2006 $ 400,000
December 15, 2006 $ 400,000
Final Maturity Date $145,200,000
(b) In addition to any other mandatory repayments pursuant to this
Section 3.02, SCIS shall be required to repay that principal amount of SCIS
Loans, to the extent then outstanding, as is set forth below opposite such date
(each such repayment, as the same may be reduced as provided in Sections 3.01
and 3.02(h), a "SCIS Scheduled Repayment"):
SCIS
Scheduled
Repayment Date Amount
-------------- ------------
December 15, 1997 $ 225,000
March 15, 1998 $ 225,000
June 15, 1998 $ 225,000
September 15, 1998 $ 225,000
December 15, 1998 $ 225,000
March 15, 1999 $ 225,000
June 15, 1999 $ 225,000
September 15, 1999 $ 225,000
December 15, 1999 $ 225,000
March 15, 2000 $ 225,000
June 15, 2000 $ 225,000
September 15, 2000 $ 225,000
December 15, 2000 $ 225,000
March 15, 2001 $ 225,000
June 15, 2001 $ 225,000
September 15, 2001 $ 225,000
December 15, 2001 $ 225,000
March 15, 2002 $ 225,000
June 15, 2002 $ 225,000
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September 15, 2002 $ 225,000
December 15, 2002 $ 225,000
March 15, 2003 $ 225,000
June 15, 2003 $ 225,000
September 15, 2003 $ 225,000
December 15, 2003 $ 225,000
March 15, 2004 $ 225,000
June 15, 2004 $ 225,000
September 15, 2004 $ 225,000
December 15, 2004 $ 225,000
March 15, 2005 $ 225,000
June 15, 2005 $ 225,000
September 15, 2005 $ 225,000
December 15, 2005 $ 225,000
March 15, 2006 $ 225,000
June 15, 2006 $ 225,000
September 15, 2006 $ 225,000
December 15, 2006 $ 225,000
Final Maturity Date $ 81,675,000
(c) In addition to any other mandatory repayments pursuant to this
Section 3.02, each Borrower shall repay principal of outstanding Loans with the
Net Sale Proceeds from any Asset Sale or Caterair Asset Sale as (and to the
extent) required by Section 7.05.
(d) In addition to any other mandatory repayments pursuant to this
Section 3.02, within 10 days following each date on which any Borrower or any
Restricted Subsidiary of any Borrower 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 such Borrower or any Restricted Subsidiary of such Borrower or the
consolidated group in which any such Person is a member) shall be applied as
mandatory repayment of principal of outstanding Loans, provided that (1) so long
as no Default or Event of Default then exists, if the proceeds from any Recovery
Event are less than $1,000,000, then no prepayment shall be required pursuant to
this Section 3.02(c), (2) to the extent
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that any portion of the proceeds from any Recovery Event are to be applied to
permanently repay principal of loans outstanding under the SCIS Credit Agreement
(and, in the case of any repayment pursuant to this clause (2) of outstandings
pursuant to any revolving loan or similar commitment, so long as such revolving
loan or similar commitment is permanently reduced by the amount of such
repayment), then at least a proportionate share of such proceeds shall be
applied as a mandatory repayment of principal of outstanding Loans (with such
proportionate share to be based on the relative outstanding principal amount of
loans, letters of credit and unutilized commitments under the SCIS Credit
Agreement and the outstanding principal amount of Loans under this Agreement),
(3) so long as no Default or Event of Default then exists, if the proceeds from
any Recovery Event are equal to or greater than $1,000,000 but less than or
equal to $25,000,000, such proceeds shall not be required to be so applied on
such date to the extent that the respective 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 restriction
cannot reasonably be completed within such 365 day period, within 450 days
following the date of the receipt of such proceeds), (4) if the amount of
proceeds from any Recovery Event exceeds $25,000,000, then the entire amount and
not just the portion in excess of $25,000,000 shall either (i) be applied to
permanently repay principal of loans outstanding under the SCIS Credit Agreement
(and, in the case of any such repayment pursuant to this clause (4) of
outstandings pursuant to any revolving loan or similar commitment, so long as
such revolving loan or similar commitment is permanently reduced by the amount
of such repayment) and to the extent that any portion of such proceeds are to be
so applied, then at least a proportionate share of such proceeds shall be
applied as a mandatory repayment of principal of outstanding Loans (with such
proportionate share to be based on the relative outstanding principal amount of
loans, letters of credit and unutilized commitments under the SCIS Credit
Agreement and the outstanding principal amount of Loans under this Agreement) or
(ii) to the extent not so applied pursuant to preceding clause (i), be applied
as a mandatory repayment of Loans as provided above in this Section 3.02(c), and
(5) if all or any portion of such proceeds not required to be applied to the
repayment of Loans pursuant to the proviso of this Section 3.02(c) (other than
clause (1) of such proviso) are not used for the purposes described in clause
(3) above within 365 days after the day of the receipt of such proceeds (or 450
days, as the case may be), such remaining portion shall be (A) applied to
permanently repay (x) principal of loans outstanding under the SCIS Credit
Agreement (and, in the case of any repayment pursuant to this clause (5)(A) of
outstandings pursuant to any revolving loan or similar commitment, so long as
revolving loan or similar commitment is permanently reduced by the amount of
such repayment) and to the extent that any portion of such proceeds are to be so
applied, then at least a proportionate share of such
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proceeds shall be applied as a mandatory repayment of principal of outstanding
Loans (with such proportionate share to be based on the relative outstanding
principal amount of loans, letters of credit and unutilized commitments under
the SCIS Credit Agreement and the outstanding principal amount of Loans under
this Agreement), or (B) if not so applied pursuant to preceding clause (A),
applied on the last day of such period as a mandatory repayment of principal of
the Loans as provided in this Section 3.02(c).
(e) In addition to any other mandatory repayments pursuant to this
Section 3.02, all then outstanding Loans shall be repaid in full on any date on
which a Change of Control occurs.
(f) In addition to any other mandatory repayments pursuant to this
Section 3.02, on the date on which the Purchase Option has been exercised in
full (including as a result of successive partial exercises) Caterair shall
repay in full all then outstanding Caterair Loans on such date (other than those
Caterair Loans that have been assumed by SCIS on or prior to such date) unless
SCIS shall have assumed all of the Caterair Loans in accordance with the
requirements of Section 11.17.
(g) In addition to any other mandatory repayments pursuant to this
Section 3.02, all then outstanding Loans shall be repaid in full on the Final
Maturity Date.
(h) The receipt of each amount that is required by Section 3.02(c)
or 3.02(d) to be applied to repay outstanding Loans shall, (A) to the extent
that the proceeds from any such events described in any such Section are
received by SCIS or any Subsidiary of SCIS, (1) first, be applied to repay the
outstanding principal amount of SCIS Loans and (2) second, to the extent in
excess of the amount required to be applied pursuant to the preceding clause
(1), be applied to repay the outstanding principal amount of Caterair Loans and
(B) to the extent that the proceeds from any such event described in any such
Section are received by Caterair or any of its Subsidiaries, (1) first, be
applied to repay outstanding Caterair Loans and (2) second, to the extent in
excess of the amount required to be applied pursuant to the preceding clause
(1), be applied to repay outstanding SCIS Loans. All repayments of principal
made by the Borrowers pursuant to this Section 3.02 shall be applied pro rata to
the outstanding Loans of the various Banks of the respective Tranche (based upon
the relative outstanding principal amounts thereof). The amount of each
principal repayment of Loans of the respective Tranche pursuant to Section
3.02(b) or 3.02(c) shall be applied to reduce the then remaining Scheduled
Repayments of such Tranche in inverse order of maturity.
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3.03 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.
3.04 Net Payments. (a) All payments made by each Borrower hereunder
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 3.04(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 respective 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
respective 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. Each Borrower will furnish to the Administrative
Agent 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 such
Borrower. Each Borrower agrees to indemnify and
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25
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 Borrowers
and the Administrative Agent on or prior to the Closing Date, or in the case of
a Bank that is an assignee or transferee of an interest under this Agreement
pursuant to Section 1.11 or 11.04 (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 C (any such certificate, a
"Section 3.04(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 Closing 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 Borrowers and the Administrative Agent two new
accurate and complete original signed copies of Internal Revenue Service Form
4224 or 1001 (or successor forms), or Form W-8 (or successor form) and a Section
3.04(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 3.04(a), but subject to Section 11.04(b) and the immediately succeeding
sentence, (x) each 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 such Borrower U.S. Internal Revenue
Service Forms that establish a complete exemption from such deduction or
withholding and (y) each Borrower shall not be obligated pursuant to Section
3.04(a) to gross-up payments to be made to a Bank in respect of income or
similar taxes imposed by the United States if
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(I) such Bank has not provided to each Borrower the Internal Revenue Service
Forms required to be provided to such Borrower pursuant to this Section 3.04(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
3.04(b) and except as set forth in Section 11.04(b), each Borrower agrees to pay
additional amounts and to indemnify each Bank in the manner set forth in Section
3.04(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 Closing 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 4. Conditions Precedent. The obligation of each Bank to make
Loans on the Closing Date is subject to the satisfaction of the following
conditions:
4.01 Execution of Agreement; Notes. On or prior to the Closing Date,
(i) the Effective Date shall have occurred and (ii) there shall have been
delivered to the Administrative Agent for the account of each of the Banks, the
appropriate SCIS Note and/or Caterair Note executed by the respective Borrower,
in each case in the amount, maturity and as otherwise provided herein.
4.02 Fees, etc. On the Closing Date, SCIS and Caterair 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.
4.03 Officer's Certificate. On the Closing Date, the Administrative
Agent shall have received a certificate, dated the Closing Date and signed on
behalf of SCIS by any authorized officer of SCIS and on behalf of Caterair by
any authorized officer of Caterair, stating that all of the conditions in
Sections 4.02, 4.07, 4.12, 4.13, 4.17 and 4.19 have been satisfied on such date.
4.04 Opinion of Counsel. On the Closing 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 Closing Date covering the matters set forth in
Exhibit D-1 and such other matters incident to the transactions contemplated
herein as the Co-Arrangers
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may reasonably request, (ii) from ▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP,
special tax counsel to SCIS and Caterair, an opinion addressed to each of the
Agents and each of the Banks and dated the Closing Date covering the matter set
forth in Exhibit D-2 and such other matters incident to the transaction
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 Closing Date
covering the matter set forth in Exhibit D-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 Closing 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.
4.05 Corporate Documents; Proceedings; etc. (a) On the Closing Date,
the Administrative Agent shall have received a certificate from each Credit
Party, each dated the Closing 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 E 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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4.06 SCIS Credit Agreement; etc. On the Closing Date, (i) the
Original SCIS/Caterair Credit Agreement shall have been amended and restated in
the form of the SCIS Credit Agreement, (ii) all outstanding term loans of
Caterair under the Original SCIS/Caterair Credit Agreement shall have been
repaid in full with proceeds of the Caterair Loans, and (iii) the SCIS Credit
Agreement shall be in full force and effect and no default or event of default
shall exist thereunder. On the Closing Date, the Administrative Agent shall have
received a true and complete copy of the SCIS Credit Agreement, which shall be
in form and substance reasonably satisfactory to the Co-Arrangers and the
Required Banks.
4.07 Issuance of 9 1/4% Senior Subordinated Notes. (a) On the
Closing Date, SCIS shall have received gross cash proceeds in an aggregate
principal amount of $299,604,000 from the issuance by SCIS of the 9 1/4% Senior
Subordinated Notes. On the Closing Date, and concurrently with the issuance of
the 9 1/4% Senior Subordinated Notes on such date, SCIS 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 SCIS/Caterair 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 the Borrower
and the Subsidiary Guarantors. On the Closing Date, there shall have been
delivered to the Administrative Agent true and complete copies of all 9 1/4%
Senior Subordinated Note Documents.
4.08 Pledge Agreements. On the Closing Date, (i) each Credit Party
(other than OFSI and the Designated Onex Sub) shall have duly authorized,
executed and delivered and 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 SCIS designated by the Administrative Agent (such amended and
restated Pledge Agreement, together with such additional pledge agreements, as
modified, supplemented or amended from time 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 (such
amended and restated Pledge Agreement as modified,
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supplemented, 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.
4.09 Security Agreement. On the Closing 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.
4.10 Mortgage Amendments; Title Insurance. On the Closing 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 liens on the respective Existing Mortgaged Properties, free and
clear of all defects, interests and encumbrances except Permitted Liens,
and such
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endorsements shall otherwise be in form and substance reasonably
satisfactory to the Co-Arrangers.
4.11 Guaranties. (a) On the Closing Date, each Subsidiary Guarantor
shall have duly authorized, executed and delivered a 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 Closing 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 Guaranty shall be in
full force and effect.
(c) On the Closing Date, OFSI shall have duly authorized,executed
and delivered a Guaranty in the form of Exhibit J (as modified, supplemented or
amended from time to time, the "OFSI Guaranty"), and the OFSI Guaranty shall be
in full force and effect.
4.12 Adverse Change; Approvals; etc. (a) On or prior to the Closing
Date, nothing shall have occurred (and neither the Co-Arrangers nor the Banks
shall have become aware of any 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 any Borrower, OFSI and its Subsidiaries
taken as a whole, any Borrower 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 Closing Date, all necessary governmental
(domestic and foreign) and third party approvals and/or consents in connection
with the consummation of the Transaction and the 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
or the consummation of the transactions contemplated by this Agreement and the
other Documents or otherwise referred to herein or therein.
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Additionally, there shall not exist any judgment, order, injunction 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 or the consummation of any
other transactions contemplated by this Agreement and the other Documents.
4.13 Litigation. On the Closing 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 any Borrower, OFSI and its Subsidiaries
taken as a whole, any Borrower and its Subsidiaries taken as a whole or Caterair
Holdings and its Subsidiaries taken as a whole.
4.14 Solvency Certificate; Insurance Certificates. On the Closing
Date, there shall have been delivered to the Administrative Agent (i) solvency
certificates from an Authorized Financial Officer of Caterair and SCIS, in the
form of Exhibit F to this Agreement and Exhibit J to the Caterair Credit
Agreement, respectively, and each dated the Closing Date and (ii) certificates
of insurance complying with the requirements of Section 6.03 for the business
and properties of the Borrowers 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.
4.15 Pro Forma Balance Sheets. On the Closing 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) SCIS 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.
4.16 Caterair Holdings Subordination Agreement, etc. On the Closing
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
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"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.
4.17 No Default; Representations and Warranties. On the Closing Date
and after giving effect to the Loans made on such date (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 Closing 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 a specified date).
4.18 Notice of Borrowing. Prior to the making of the Loans, the
Administrative Agent shall have received Notice of Borrowings meeting the
requirements of Section 1.02.
4.19 13% Senior Subordinated Note Tender Offer; 13% Senior
Subordinated Note Consent; 13% Senior Subordinated Note Indenture Supplement.
(a) On the Closing Date, SCIS shall have accepted for payment at least a
majority of the outstanding principal amount of 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 that the actual payment of any such 13% Senior Subordinated
Notes so tendered and accepted shall not be required to be made until the end of
the scheduled tender offer period 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 Closing Date, SCIS 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 SCIS 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
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be conducted in compliance with the Consent Solicitation Documents and all
applicable laws (including, without limitation, Federal and state securities
laws).
(c) On the Closing Date, there shall have been delivered to the
Administrative Agent true and correct copies of all 13% Senior 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 4.19 have been satisfied at such time.
The occurrence of the Closing Date and the incurrence of the Loans
on such date shall constitute a representation and warranty by SCIS and Caterair
to each of the Agents and each of the Banks that all of the conditions specified
in this Section 4 exist as of that time. All of the Notes, certificates, legal
opinions and other documents and papers referred to in this Section 4, unless
otherwise specified, shall be delivered to the Administrative Agent 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 5. Representations, Warranties and Agreements. In order to
induce the Banks to enter into this Agreement and to make the Loans as provided
herein, each of the Borrowers 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 on and as of the Closing Date (it being understood
and agreed that (i) 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 (ii) no representation or warranty
is made herein as to OFSI or Caterair Holdings).
5.01 Corporate Status. Each of SCIS, Caterair and each Subsidiary of
SCIS and Caterair (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 (financial or otherwise) or prospects
of Caterair,
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Caterair and its Subsidiaries taken as a whole, SCIS or SCIS and its
Subsidiaries taken as a whole.
5.02 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).
5.03 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 and the Subordinated Intercompany Security Agreement)
upon any of the properties or assets of any Borrower or any Subsidiary of any
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 any Borrower or any Subsidiary of any 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 any Borrower or any
Subsidiary of any Borrower.
5.04 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 Closing Date, or to the
extent not required to be obtained or made on or prior to the Closing 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 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.
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5.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Financial Projections. (a) The consolidated balance sheet of each
of SCIS and its Subsidiaries and Caterair 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 Closing Date present
fairly the consolidated financial position of each of SCIS and its Subsidiaries
and Caterair 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 any Borrower or any Borrower and its
Subsidiaries taken as a whole.
(b) On and as of the Closing 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 SCIS, Caterair and their respective
Subsidiaries taken as a whole will exceed their respective debts, (B) SCIS,
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) SCIS,
Caterair and their respective Subsidiaries taken as a whole will have sufficient
capital with which to conduct their business. For purposes of this Section
5.05(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 5.05(a), there were as of the Closing Date no liabilities or
obligations with respect to the Borrowers 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 such Borrower 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 Closing Date, no 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 5.05(a) which, either individually or
in the
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aggregate, could reasonably be expected to be material to the Borrowers or any
of their respective Subsidiaries.
(d) On and as of the Closing 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 any Borrower to be misleading in any material
respect or which fail to take into account material information regarding the
matters reported therein. On the Closing Date, each Borrower 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.
5.06 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 any
Borrower or any Subsidiary of any 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 any
Borrower or any Borrower and its Subsidiaries taken as a whole.
5.07 True and Complete Disclosure. All factual information (taken as
a whole) furnished by or on behalf of any Borrower or any of its 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 any Borrower or any of its respective
Subsidiaries in writing to any Agent or any Bank, will be, true and accurate in
all material respects on 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.
5.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the
Caterair Loans shall be used by Caterair (i) to refinance its outstanding term
loans under the Original SCIS/Caterair Credit Agreement and (ii) to pay costs
and expenses related to the Transaction. All proceeds of the SCIS Loans shall be
used by SCIS (i) to finance, in part, the 13% Senior Subordinated Note Tender
Offer and (ii) to pay cost and expenses related to the Transaction.
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(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 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.
5.09 Tax Returns and Payments. Each of SCIS, Caterair 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 SCIS,
Caterair and their respective Subsidiaries. The Returns accurately reflect in
all material respects all liability for taxes of SCIS, Caterair and their
respective Subsidiaries and for the periods covered thereby. Each of SCIS,
Caterair 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 SCIS,
Caterair or any of their respective Subsidiaries. As of the Closing Date, none
of SCIS, Caterair 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 SCIS, Caterair or any of their respective Subsidiaries to a period
ending after the Closing Date. None of SCIS, Caterair 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 SCIS, Caterair 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 Closing
Date, in connection with the Transaction or the other transactions contemplated
hereby and thereby.
5.10 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 SCIS or Caterair
nor any Subsidiary or ERISA Affiliate of SCIS or Caterair 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
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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 SCIS, Caterair or any
Subsidiary or ERISA Affiliate of SCIS, Caterair 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 SCIS, Caterair 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, would not exceed
$5,000,000; no lien imposed under the Code or ERISA on the assets of SCIS,
Caterair or any Subsidiary or ERISA Affiliate of SCIS or Caterair exists or is
likely to arise on account of any Plan; and if SCIS, Caterair 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 SCIS, Caterair, SCIS and its Subsidiaries taken as a
whole or Caterair and its 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 SCIS,
Caterair nor 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 SCIS, Caterair or any of their respective
Subsidiaries under each Foreign Pension Plan, determined as of the end of SCIS'
and Caterair's 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.
5.11 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
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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 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 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)).
(c) The Mortgages create, upon recording thereof and of the Mortgage
Amendments in the case of the Existing Mortgages (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 Closing 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
lease-hold Mortgaged Properties leased by such Credit Party, in each case free
and clear of all leases, occupancy interests and all Liens except Permitted
Liens.
5.12 Representations and Warranties in Other Documents. (a) On the
Closing Date, all representations and warranties made by any Credit Party in the
SCIS Credit Agreement and in the 9 1/4% Senior Subordinated Note Documents were
true and
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correct in all material respects as at the time as of which such representations
and warranties were made (or deemed made).
(b) On the Closing Date, all representations and warranties
contained in the other Credit Documents shall be true and correct in all
material respects.
5.13 Properties. Each of SCIS, Caterair and each Subsidiary of SCIS
and Caterair 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 SCIS and Caterair referred to in Section 5.05(a)
(except as sold or otherwise disposed of since the date of such balance sheets
pursuant to transactions not prohibited under the Original SCIS/Caterair Credit
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 III
sets forth a true and complete description of all Real Property owned or leased
by SCIS, Caterair and each Domestic Subsidiary of SCIS and Caterair on the
Closing 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.
5.14 Capitalization. On the Closing Date, the authorized capital
stock of (i) SCIS 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 (ii) 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. Neither SCIS 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.
5.15 Subsidiaries. Schedule IV lists, as of the Closing Date, each
Subsidiary of SCIS and Caterair and the direct and indirect ownership interest
of SCIS and Caterair therein. All outstanding shares of capital stock of each
Subsidiary of SCIS and Caterair have been duly and validly issued, are fully
paid and non-assessable and have been issued free of preemptive rights. No
Subsidiary of SCIS 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
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or any calls, commitments or claims of any character relating to, its capital
stock or any stock appreciation or similar rights.
5.16 Compliance with Statutes, etc. Each of SCIS, Caterair and each
Subsidiary of SCIS and Caterair 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) to the extent required as of the Closing
Date, 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 SCIS, Caterair, SCIS and its Subsidiaries taken as a
whole or Caterair and its Subsidiaries taken as a whole.
5.17 Investment Company Act. None of SCIS, Caterair nor any
Subsidiary of SCIS or Caterair is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
5.18 Public Utility Holding Company Act. None of SCIS, Caterair nor
any Subsidiary of SCIS or Caterair 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.
5.19 Environmental Matters. (a) Each of SCIS, Caterair and each
Subsidiary of SCIS and Caterair 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 SCIS, Caterair or any Subsidiary of SCIS or Caterair 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 SCIS, Caterair or any Subsidiary of SCIS or Caterair 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 SCIS, Caterair
or any Subsidiary of SCIS or Caterair 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 SCIS, Caterair or any
Subsidiary of SCIS or Caterair 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
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by SCIS, Caterair or any Subsidiary of SCIS or Caterair 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 SCIS, Caterair or any Subsidiary of SCIS or Caterair where such
Release has violated any applicable Environmental Law. There are no underground
storage tanks located on any Real Property owned or operated by SCIS, Caterair
or any Subsidiary of SCIS or Caterair that are not in compliance with all
Environmental Laws.
(c) Notwithstanding anything to the contrary in this Section 5.19,
the representations made in this Section 5.19 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 SCIS, Caterair,
SCIS and its Subsidiaries taken as a whole or Caterair and its Subsidiaries
taken as a whole.
5.20 Labor Relations. None of SCIS, Caterair nor any Subsidiary of
SCIS or Caterair is engaged in any unfair labor practice that could reasonably
be expected to have a material adverse effect on SCIS, Caterair, SCIS and its
Subsidiaries taken as a whole or Caterair and its Subsidiaries taken as a whole.
There is (i) no unfair labor practice complaint pending against SCIS, Caterair
or any Subsidiary of SCIS or Caterair 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 SCIS, Caterair or any Subsidiary of
SCIS or Caterair or threatened against any of them, (ii) no strike, labor
dispute, slowdown or stoppage pending against SCIS, Caterair or any Subsidiary
of SCIS or Caterair or threatened against any of them and (iii) no union
representation proceeding pending with respect to the employees of SCIS,
Caterair or any Subsidiary of SCIS or Caterair 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 SCIS, Caterair, SCIS and its
Subsidiaries taken as a whole or Caterair and its Subsidiaries taken as a whole.
5.21 Patents, Licenses, Franchises and Formulas. Each of SCIS,
Caterair and each Subsidiary of SCIS and Caterair 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
with the rights of others which, or the failure to
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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 SCIS, Caterair,
SCIS and its Subsidiaries taken as a whole or Caterair and its Subsidiaries
taken as a whole.
5.22 Indebtedness; Subordination Provisions; etc. (a) Schedule V
sets forth a true and complete list of all Indebtedness of SCIS, Caterair and
their respective Subsidiaries as of the Closing Date and which is to remain
outstanding after giving effect thereto (excluding the Loans, the obligations
under the SCIS Credit Agreement, the Senior Subordinated Notes and the
SCIS/Caterair Loan), 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 SCIS, 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.
5.23 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 performance by SCIS, Caterair or any of their respective
Subsidiaries of their obligations under the respective Documents. All actions
taken by SCIS, Caterair any of their respective Subsidiaries pursuant to or in
furtherance of the issuance of the consummation of the Transaction have been
taken in compliance with the respective Documents therefor and all applicable
United States and other laws.
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SECTION 6. Affirmative Covenants. Each of SCIS and Caterair
covenants and agrees that on and after the Effective Date and so long as this
Agreement is in effect and until the Loans and Notes, 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):
6.01 Information Covenants. SCIS 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 Caterair and SCIS (or 60 days after the end of each December),
the consolidated balance sheet of each of Caterair and its Subsidiaries
and SCIS 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 the
prior fiscal year, 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 for
such fiscal month as set forth in the respective budget delivered pursuant
to Section 6.01(e), all of which shall be certified by an Authorized
Financial Officer of Caterair or SCIS, 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
SCIS and Caterair, (x) in the case of SCIS, the consolidated balance sheet
of SCIS 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 SCIS, a statement
of the combined debt of SCIS, 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 SCIS,
Caterair and their respective Subsidiaries, in each case for such
quarterly accounting period and for the
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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 SCIS/Caterair Credit Agreement), in each case (with respect to
preceding clauses (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 SCIS 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 SCIS and Caterair, (x) in the case of SCIS, the
consolidated balance sheet of SCIS 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 SCIS, a statement of
the combined debt of SCIS, 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 SCIS, 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 SCIS/Caterair Credit Agreement), in each case (with
respect to preceding clauses (x), (y) and (z)) certified (A) in the case
of the consolidated financial statements of SCIS 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
SCIS 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 Section 7 or 8 insofar
as such Sections relate to accounting matters, 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 SCIS and Caterair, the Authorized
Financial Officer of SCIS and (ii) management's discussions and analysis
of the important operational and financial developments during such fiscal
year.
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(d) Management Letters. Promptly after the receipt thereof by SCIS,
Caterair or any Domestic Subsidiary of SCIS or Caterair, a copy of any
"management letter" received by SCIS, Caterair 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 SCIS and Caterair, consolidated
budgets for each of SCIS and Caterair in form satisfactory to the Agents
(including budgeted statements of income and sources and uses of cash and
balance sheets) prepared by SCIS 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 SCIS 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 6.01(a), (b) and (c), a
certificate of an Authorized Financial Officer of SCIS 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 shall set forth in reasonable
detail the calculations required to establish whether SCIS, Caterair and
their respective Subsidiaries were in compliance with the provisions of
Sections 7.01, 7.03 and 7.05 at the end of such fiscal quarter or year, as
the case may be.
(g) Notice of Default or Litigation. Promptly, and in any event
within three Business Days after an executive officer of SCIS or Caterair
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 SCIS,
Caterair 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 SCIS, Caterair, SCIS and its Subsidiaries taken as a whole or
Caterair and its 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 SCIS, Caterair or any Subsidiary of SCIS or Caterair 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
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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 SCIS or Caterair 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 SCIS, Caterair, SCIS and its Subsidiaries taken as a whole or
Caterair and its Subsidiaries taken as a whole:
(i) any pending or threatened Environmental Claim in writing
against SCIS, Caterair or any Subsidiary of SCIS or Caterair or any
Real Property owned or operated by SCIS, Caterair or any Subsidiary
of SCIS or Caterair;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated by SCIS, Caterair or any Subsidiary of
SCIS or Caterair that (a) results in noncompliance by SCIS, Caterair
or any Subsidiary of SCIS or Caterair with any applicable
Environmental Law or (b) could reasonably be expected to form the
basis of an Environmental Claim against SCIS, Caterair or any
Subsidiary of SCIS or Caterair or any such Real Property;
(iii) any condition or occurrence on any Real Property owned
or operated by SCIS, Caterair or any Subsidiary of SCIS or Caterair
that could reasonably be expected to cause such Real Property to be
subject to any restrictions on the ownership, occupancy, use or
transferability by SCIS, Caterair or any Subsidiary of SCIS or
Caterair of any 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 SCIS, Caterair or any Subsidiary
of SCIS or Caterair 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 SCIS', Caterair's or such Subsidiary's response thereto. In addition,
SCIS, Caterair or
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any Subsidiary of SCIS or Caterair 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 6.01(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. At the request of the Administrative
Agent, SCIS shall within 135 days after the close of each fiscal year of
SCIS 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 SCIS and its
Subsidiaries and Caterair and its Subsidiaries and the annual plan and
budgets presented for the current fiscal year of SCIS and its Subsidiaries
and Caterair and its Subsidiaries.
(k) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to SCIS, Caterair or any
of their respective Subsidiaries as any Bank may reasonably request in
writing.
6.02 Books, Records and Inspections. Each of SCIS and Caterair will,
and will cause each of its respective Subsidiaries to, keep proper books of
record and account in which 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 SCIS and Caterair will, and will cause each of its
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, SCIS, Caterair or such Subsidiary, any of the
properties of SCIS, Caterair or such Subsidiary, and to examine the books of
account of SCIS, Caterair or such Subsidiary and discuss the affairs, finances
and accounts of SCIS, Caterair 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.
6.03 Maintenance of Property; Insurance. (a) Each of SCIS and
Caterair will, and will cause each of its 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
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insurance with financially sound and reputable insurance companies in such
amounts and coverage as determined in good faith by senior management of SCIS or
Caterair to be appropriate for SCIS, 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.
(b) Each of SCIS 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 SCIS, 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 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 SCIS, 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 SCIS, Caterair or any of their respective Subsidiaries to
which this Section 6.03 applies shall fail to maintain insurance in accordance
herewith, or if SCIS, 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 SCIS and Caterair agree to
reimburse the Administrative Agent or the Collateral Agent, as the case may be,
for all costs and expenses of procuring such insurance.
6.04 Corporate Franchises. Each of SCIS and Caterair will, and will
cause each of its respective 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 6.04 shall prevent (i) the sale or other disposal of
assets by SCIS, Caterair or any Subsidiary
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of SCIS or Caterair in accordance with Section 7.05, (ii) the withdrawal by
SCIS, Caterair or any Subsidiary of SCIS or Caterair 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 SCIS, Caterair, SCIS and its Subsidiaries taken as a whole or
Caterair and its Subsidiaries taken as a whole or (iii) SCIS or Caterair from
not maintaining the corporate existence of any Subsidiary of SCIS or Caterair
(other than a Subsidiary Guarantor or a Significant Subsidiary) to the extent
that the Board of Directors of SCIS or Caterair shall determine in good faith
that the preservation of such existence is no longer desirable in the conduct of
the business of SCIS and its Restricted Subsidiaries taken as a whole or
Caterair and its Subsidiaries taken as a whole, as the case may be.
6.05 Compliance with Statutes, etc. Each of SCIS and Caterair will
comply, and 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 SCIS, Caterair,
SCIS and its Subsidiaries taken as a whole or Caterair and its Subsidiaries
taken as a whole.
6.06 Compliance with Environmental Laws. (a) Each of SCIS and
Caterair will comply, and 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 SCIS, Caterair 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 SCIS, Caterair and its Subsidiaries taken as a whole
or Caterair and its 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 SCIS,
Caterair nor any Subsidiary of SCIS or of Caterair 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 SCIS, Caterair 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 ap-
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plicable 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, SCIS and Caterair will provide, at
their own expense an environmental site assessment report concerning any Real
Property now or hereafter owned or operated by SCIS, Caterair or any Domestic
Subsidiary of SCIS or Caterair, prepared by an 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 SCIS, Caterair or any Domestic Subsidiary of SCIS
or Caterair or any such Real Property is not in compliance with Section 6.06(a)
or (ii) any notice is delivered to the Administrative Agent or any Bank pursuant
to Section 6.01(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 SCIS, Caterair and each Domestic Subsidiary of SCIS and
Caterair 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 respective Credit Party's expense.
6.07 Performance of Obligations. Each of SCIS and Caterair will, and
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 SCIS, Caterair, SCIS and its
Subsidiaries taken as a whole or Caterair and its Subsidiaries taken as a whole.
In addition to the requirements of the immediately preceding sentence, each of
SCIS and Caterair will, and 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.
6.08 Payment of Taxes. Each of SCIS and Caterair 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
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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 SCIS,
Caterair or any of their respective Subsidiaries; provided that neither SCIS,
Caterair 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.
6.09 Additional Security; Further Assurances. (a) Each of SCIS 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 SCIS 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 SCIS and Caterair will, and 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 SCIS and Caterair
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 6.09 has been complied
with.
(c) Each of SCIS and Caterair agrees that each action required above
by this Section 6.09 shall be completed as soon as possible, but in no event
later than 90
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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 SCIS Credit
Agreement.
(d) To the extent SCIS, Caterair or any of their respective
Subsidiaries create, establish or acquire any Wholly-Owned Domestic Subsidiary
after the Closing Date, 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 4 as the
respective Wholly-Owned Domestic Subsidiary would have had delivered if it were
a Credit Party on the Closing Date. Each of SCIS and Caterair 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 Closing 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.
6.10 13% Senior Subordinated Note Tender Offer; Escrows. (a) On the
13% Senior Subordinated Note Tender Offer Expiration Date or within one Business
Day thereafter, SCIS 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, SCIS shall
enter into an escrow agreement reasonably satisfactory to the Administrative
Agent (the "Bank Escrow Agreement") pursuant to which SCIS 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 Obligations hereunder and for the obligations under the SCIS
Credit Agreement, although (i) such cash shall upon request of SCIS 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
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request of SCIS 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, SCIS 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 6.10.
SECTION 7. Negative Covenants. Each of SCIS and Caterair covenants
and agrees that on and after the Effective Date and so long as this Agreement is
in effect and until the Loans and Notes, 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):
7.01 Limitation on Restricted Payments. SCIS will not, and will not
cause or permit any of its Restricted Subsidiaries to, directly or indirectly,
(a) declare or pay any dividend or make any distribution (other than dividends
or distributions payable in Qualified Capital Stock of SCIS) on or in respect of
shares of SCIS' Capital Stock to holders of such Capital Stock, (b) purchase,
redeem or otherwise acquire or retire for value any Capital Stock of SCIS or any
warrants, rights or options to purchase or acquire shares of any class of such
Capital Stock, other than the exchange of such Capital Stock or any warrants,
rights or options to acquire shares of any class of such Capital Stock for
Qualified Capital Stock of SCIS or warrants, rights or options to acquire such
Qualified Capital Stock, (c) make any principal payment on, purchase, defease,
redeem, prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund payment,
any Indebtedness of SCIS or its Restricted Subsidiaries that is subordinate or
junior in right of payment to the Obligations or the Guaranteed Obligations, or
(d) make any Investment (other than Permitted Investments) (each of the
foregoing actions set forth in clauses (a), (b), (c) and (d) being referred to
as a "Restricted Payment"), if at the time of such Restricted Payment or
immediately after giving effect thereto, (i) a Default or an Event of Default
shall have occurred and be continuing, (ii) SCIS is not able to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 7.03 or (iii) the aggregate amount of Restricted
Payments made subsequent to the Closing Date (the amount expended for such
purposes, if other than in cash, being the fair market value of such property as
determined by the Board of Directors of SCIS in good faith) shall exceed the sum
of: (x) 50% of the cumulative
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Consolidated Net Income (or if cumulative Consolidated Net Income shall be a
loss, minus 100% of such loss) of SCIS earned subsequent to the Closing Date and
on or prior to the date the Restricted Payment occurs (the "Reference Date")
(treating such period as a single accounting period); plus (y) 100% of the
aggregate Net Equity Proceeds received by SCIS from any Person (other than a
Subsidiary of SCIS) from the issuance and sale subsequent to the Closing Date
and on or prior to the Reference Date of Qualified Capital Stock of SCIS
(including proceeds from the issuance and sale of any securities of SCIS
convertible in to or exchangeable for Qualified Capital Stock of SCIS to the
extent such securities are so converted or exchanged and including any
additional proceeds received by SCIS upon such conversion or exchange); plus (z)
without duplication of any amounts included in clause (iii)(y) above, 100% of
the aggregate Net Equity Proceeds received by SCIS as capital contributions
subsequent to the Closing Date and on or prior to the Reference Date.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit (1) the payment of any dividend
or the consummation of any irrevocable redemption within 60 days after the date
of declaration of such dividend or notice of such redemption if the dividend or
payment of the redemption price, as the case may be, would have been permitted
on the date of declaration of notice; (2) the acquisition of any shares of
Capital Stock of SCIS or warrants, options or other rights to acquire Capital
Stock of SCIS, either (i) solely in exchange for shares of Qualified Capital
Stock of SCIS or warrants, options or other rights to acquire such Qualified
Capital Stock, or (ii) through the application of the net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of SCIS) of
shares of Qualified Capital Stock of SCIS or warrants, options or other rights
to acquire such Qualified Capital Stock; (3) the acquisition of Indebtedness of
SCIS that is subordinate or junior in right or payment to the Obligations or the
Guaranteed Obligations, either (i) solely in exchange for shares of Qualified
Capital Stock of SCIS or warrants, options or other fights to acquire such
Qualified Capital Stock or for Indebtedness of SCIS which is subordinate or
junior in right of payment to the Obligations or the Guaranteed Obligations, at
least to the extent that the Indebtedness being acquired is subordinated to the
Obligations or the Guaranteed Obligations, and has a Weighted Average Life to
Maturity no less than that of the Indebtedness being acquired or (ii) through
the application of the net proceeds of a substantially concurrent sale for cash
(other than to a Subsidiary of SCIS) of shares of Qualified Capital Stock of
SCIS or warrants, options or other rights to acquire such Qualified Capital
Stock or Indebtedness of SCIS which is subordinate or junior in right of payment
to the Obligations or the Guaranteed Obligations, at least to the extent that
the Indebtedness being acquired is subordinated to the Obligations or the
Guaranteed Obligations, and has a Weighted Average Life to Maturity no less than
that of the Indebtedness being refinanced; (4) payments by SCIS to OFSI to
enable OFSI to pay a dividend to
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LSG/Lufthansa (or a Subsidiary thereof), in an aggregate amount not to exceed
$2,500,000 in any 12-month period; provided that any unused portion of such
amount may be carried over to any subsequent 12-month period; (5) payments by
SCIS to OFSI on or after January 1, 1997 to enable OFSI to pay dividends to
stockholders of OFSI other than LSG/Lufthansa (or a Subsidiary thereof), in an
aggregate amount not to exceed $6,000,000 in any 12-month; provided that any
unused portion of such amount may be carried over to any subsequent 12-month
period; (6) payments by SCIS or any of its Subsidiaries to OFSI pursuant to the
OFSI Tax Sharing Agreement; (7) payments by SCIS to OFSI sufficient to enable
OFSI to (i) pay franchise taxes and other fees and expenses necessary to
maintain its corporate existence, (ii) pay reasonable fees to its directors and
(iii) 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 SCIS and
Subsidiaries of SCIS; (8) payments by SCIS or any of its Subsidiaries to OFSI in
an aggregate amount not to exceed $6,000,000 in any 12-month period, the
proceeds of which are used by OFSI to repurchase outstanding shares of OFSI's
common stock held by current or former employees or directors of SCIS or any of
its Subsidiaries (A) following the death, disability or termination of
employment of any such person or (B) pursuant to one or more written plans
approved by the Board of Directors of OFSI and (9) payments by SCIS or any of
its Subsidiaries to OFSI, the proceeds of which are used by OFSI to fund
payments under a plan implemented to compensate management of SCIS and its
Subsidiaries based on the value of OFSI's common stock; provided, however, that
in the case of preceding clauses (4), (5) and (8)(B), no Default or Event of
Default shall have occurred or be continuing at the time of such payment or as a
result thereof. In determining the aggregate amount of Restricted Payments made
subsequent to the Closing Date in accordance with clause (iii) of the
immediately preceding paragraph, (x) 100% of each of the payments described in
clauses (1), (4) and (5) above (to the extent such expenditure is in the form of
cash) and (y) 50% of the payments described in clauses (8)(A) and (8)(B) above
(to the extent such expenditure is in the form of cash), other than amounts paid
to the SCIS or a Subsidiary of SCIS by OFSI or such employee in satisfaction of
loans of advances made by SCIS or such Subsidiary pursuant to clause (v) (A) of
the definition of "Permitted Investments" (which shall not be included in such
calculation or in the calculation of payments made pursuant to clause (8)
above), shall be included in such calculation.
Caterair will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or make
any distribution on or in respect of shares of Caterair's Capital Stock to
holders of such Capital Stock, (B) purchase, redeem or otherwise acquire or
return for value any Capital Stock of Caterair or any warranties, rights or
options to purchase or acquire shares of any class of such Capital Stock, (c)
make any principal payment on, purchase, defease, redeem, prepay,
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decrease or otherwise acquire of retire for value, prior to any scheduled final
maturity, scheduled repayment or scheduling sinking fund payment, any
Indebtedness of Caterair or its Subsidiaries that is subordinate or junior in
right of payment to the Obligations or the Guaranteed Obligations, or (d) make
any Investment (other than Permitted Investments) (each of the foregoing actions
set forth in clauses (a), (b), (c) and (d) being referred to as a "Caterair
Restricted Payment").
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any dividend
within 30 days after the date of declaration of such dividend if the dividend
would have been permitted on the date of declaration; (2) payments by Caterair
to Caterair Holdings sufficient to enable Caterair Holdings to (i) pay franchise
taxes and other fees and expenses necessary to maintain its corporate existence,
(ii) pay reasonable fees to its directors and (iii) perform accounting, legal,
corporate reporting and administrative functions in the ordinary course of
business; (3) payments by Caterair or any of its Subsidiaries to Caterair
Holdings pursuant to the Caterair Tax Sharing Agreement; and (4) payments by
Caterair or any Subsidiary of the Borrower to SCIS or any Restricted Subsidiary
of SCIS.
Prior to any Restricted Payment under the first paragraph of this
Section 7.01, SCIS shall deliver to the Administrative Agent a certificate of an
Authorized Financial Officer of SCIS setting forth the computation by which the
amount available for Restricted Payments pursuant to such paragraph was
determined. The Administrative Agent shall have no duty or responsibility to
determine the accuracy or correctness of this computation and shall be fully
protected in relying on such officer's certificate.
7.02 Limitation on Transactions with Affiliates. SCIS will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction or series of related transactions
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service), with, or for the benefit of, any of
its Affiliates (an "Affiliate Transaction"), other than (x) Affiliate
Transactions permitted under the paragraph below and (y) Affiliate Transactions
on terms that are no less favorable than those that might reasonably have been
obtained in a comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate; provided, however, that for a transaction or
series of related transactions with an aggregate value of $5,000,000 or more (i)
such determination shall be made in good faith by a majority of the
disinterested members of the Board of Directors of SCIS or (ii) the Board of
Directors of SCIS shall have received an opinion from a nationally recognized
investment banking firm that such Affiliate Transaction is on terms no less
favorable than those that might
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reasonably have been obtained in a comparable transaction at such time on an
arm's-length basis from a Person that is not an Affiliate; and provided,
further, that for a transaction or series of related transactions with an
aggregate value of $10,000,000 or more, the Board of Directors of SCIS shall
have received an opinion from a nationally recognized investment banking firm
that such Affiliate Transaction is on terms no less favorable than those that
might reasonably have been obtained in a comparable transaction at such time on
an arm's-length basis from a Person that is not an Affiliate.
The restrictions set forth in the preceding paragraph shall not
apply to (1) reasonable fees and compensating paid to and indemnity provided on
behalf of, officers, directors, employees or consultants of SCIS or any
Subsidiary of SCIS as determined in good faith by SCIS' Board of Directors or
senior management; (2) transactions between or among SCIS or any Restricted
Subsidiary of SCIS, on the one hand, and any Subsidiary of SCIS or other Person
controlled (as such term is defined in the definition of "Affiliate") by SCIS,
on the other hand, so long as 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") SCIS, or between or among such
Subsidiaries and Persons, provided such transactions are not otherwise
prohibited by this Agreement; (3) any agreement as in effect as of the Closing
Date or any amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto) in any replacement agreement thereto so long
as any such amendment or replacement agreement is not more disadvantageous to
the Banks in any material respect than the original agreement as in effect on
the Closing Date; (4) transactions between SCIS or any Restricted Subsidiary of
SCIS, on the one hand and Caterair or any Subsidiary of Caterair, on the other
hand; and (5) Restricted Payments permitted by this Agreement.
Caterair will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction or series
of related transactions (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service) with, or for
the benefit of, any of its Affiliates.
The restrictions set forth in the preceding paragraph shall not
apply to (1) transactions between Caterair or any Subsidiary of Caterair, on the
one hand, and SCIS or any Restricted Subsidiary of SCIS, on the other hand; (2)
transactions between or among Caterair or any Subsidiary of Caterair, on the one
hand, and any Subsidiary of Caterair or other Person controlled (as such term is
defined in the definition of "Affiliate") by Caterair, on the other hand, so
long as 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') Caterair, or between or among such
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Subsidiaries and Person; provided that such transactions are not otherwise
prohibited by this Agreement; (3) reasonable fees and compensation paid to and
indemnity provided on behalf of, officers, directors, employees or consultants
of Caterair or any Subsidiary of Caterair as determined in good faith by
Caterair's Board of Directors or senior management; (4) any agreement as in
effect as of the Closing Date or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto) in any
replacement agreement thereto so long as any such amendment or replacement
agreement is not more disadvantageous to the Banks in any material respect than
the original agreement as in effect on the Closing Date; and (5) Caterair
Restricted Payments permitted by this Agreement.
7.03 Limitation on Incurrence of Additional Indebtedness. SCIS will
not, and will not permit any of its Restricted Subsidiaries to, and Caterair
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume, guarantee, acquire, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
payment of (collectively, "incur") any Indebtedness (other than Permitted
Indebtedness); provided, however, that if no Default or Event of Default shall
have occurred and be continuing at the time or as a consequence of the
incurrence of any such Indebtedness, SCIS, Caterair or any Restricted Subsidiary
of SCIS may incur Indebtedness if on the date of the incurrence of such
Indebtedness, after giving effect to the incurrence thereof, the Consolidated
Fixed Charge Coverage Ratio of SCIS is greater than 2.00 to 1.0.
7.04 Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries. SCIS will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or permit to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary of SCIS to (a) pay dividends or make any other
distributions on or in respect of its Capital Stock; (b) make loans or advances
to or pay any Indebtedness or other obligations owed to SCIS or any other
Restricted Subsidiary of SCIS; or (c) transfer any of its property or assets to
SCIS or any other Restricted Subsidiary of SCIS, except for such encumbrances or
restrictions existing under or by reason of: (1) applicable law; (2) this
Agreement; (3) customary non-assignment provisions of any contract or any lease
entered into in the ordinary course of business; (4) any agreement or instrument
governing Acquired Indebtedness, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so acquired; (5) any
agreement existing on the Closing Date (including, without limitation, the SCIS
Credit Agreement and the Senior Subordinated Note Documents); (6) in the case of
clause (c) above, (A) restrictions on the transfer of assets subject to any Lien
permitted under this Agreement imposed by the holder of such Lien and (B)
restrictions on the transfer of assets imposed by any
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agreement, lease or permit entered into or obtained in the ordinary course of
business in connection with the operation of flight kitchens; (7) (A)
restrictions imposed by any agreement to sell assets permitted under this
Agreement to any Person pending the closing of such sale, (B) any agreement or
instrument governing Capital Stock of any Person that is acquired or (C) any
joint venture, stockholder of similar agreements; (8) any agreement or
instrument governing any Indebtedness of a Restricted Subsidiary of SCIS which
is a Foreign Subsidiary or which conducts substantially all of its business
outside the United States so long as all Restricted Subsidiaries of SCIS whose
Indebtedness agreements contain such restrictions, in the aggregate, did not
account for more than 10% of Consolidated EBITDA of SCIS (after giving pro forma
effect to the inclusion of any additional Restricted Subsidiary proposing to
enter into such an agreement) during the four full fiscal quarter period ending
immediately prior to the date of determination thereof; or (9) an agreement
effecting an amendment, refinancing, replacement or substitution of Indebtedness
issued, assumed or incurred pursuant to an agreement referred to in clause (2),
(4) or (5) above or any other agreement evidencing Indebtedness permitted under
this Agreement; provided, however, that the provisions relating to such
encumbrance or restriction contained in any such amendment, refinancing,
replacement or substitution agreement or any such other agreement are no less
favorable to SCIS in any material respect as determined by the Board of
Directors of SCIS than the provisions relating to such encumbrance or
restriction contained in agreements referred to in such clause (2), (4) or (5).
Caterair will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or permit to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary of
Caterair to (a) pay dividends or make any other distributions on or in respect
of its Capital Stock; (b) make loans or advances or to pay any Indebtedness or
other obligation owed to Caterair or any other Subsidiary of Caterair, or (c)
transfer any of its property or assets to Caterair or any other Subsidiary of
Caterair, except for such encumbrances existing under or by reason of: (1)
applicable law; (2) this Agreement; (3) customary non-assignment provisions of
any contract or any lease entered into in the ordinary course of business; (4)
any agreement or instrument governing Acquired Indebtedness, which encumbrance
or restriction is not applicable or any Person, or the properties or assets of
any Person, other that the Person or the properties or assets of the Person so
acquired; (5) any agreement existing on the Closing Date (including, without
limitation, the SCIS Credit Agreement and the Senior Subordinated Note
Documents); (6) in the case of clause (c) above, (A) restrictions on the
transfer of assets subject to any Lien permitted under this Agreement imposed by
the holder of such Lien and (B) restrictions on the transfer of assets imposed
by any agreement, lease or permit entered into or obtained in the ordinary
course of business in connection with the operation of flight kitchens; (7)
restrictions imposed by any agreement to sell assets permitted under this
Agreement to
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any Person pending the closing of such sale; or (8) an agreement effecting an
amendment, refinancing, replacement or substitution of Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in clause (2), (4) or
(5) above; provided, however, that the provisions relating to such encumbrance
or restriction contained in any such amendment, refinancing, replacement or
substitution agreement are not less favorable to Caterair in any material
respect as determined by the Board of Directors of Caterair than the provisions
relating to such encumbrance or restriction contained in agreements referred to
in such clause (2), (4) or (5).
7.05 Limitation on Asset Sales; etc.. (a) SCIS will not, and will
not permit any of its Restricted Subsidiaries to, consummate an Asset Sale
unless (i) other than with respect to the Australian Assets to the extent sold
pursuant to the existing option granted to Qantas Flight Catering Holdings
Limited, SCIS or the applicable Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal to the fair
market value of the assets sold or otherwise disposed of (as determined in good
faith by SCIS' Board of Directors); (ii) at least 75% of the consideration
received by SCIS or such Restricted Subsidiary, as the case may be, from such
Asset Sale shall be cash or Cash Equivalents and is received at the time of such
disposition; and (iii) upon the consummation of an Asset Sale, SCIS shall apply,
or cause such Restricted Subsidiary to apply, the Net Sale Proceeds relating to
such Asset Sale within 365 days of receipt thereof either (A) to permanently
prepay principal of loans outstanding under the SCIS Credit Agreement (and, in
the case of any repayment of outstandings pursuant to any revolving loan or
similar commitment, so long as such revolving loan or similar commitment is
permanently reduced by the amount of such prepayment), provided to the extent
that any portion of such proceeds are to be so applied, then at least a
proportionate share of such proceeds shall be applied as a mandatory repayment
of principal of outstanding Loans (with such proportionate share to be based on
the relative outstanding principal amount of loans, letters of credit and
unutilized commitments under the SCIS Credit Agreement and the outstanding
principal amount of Loans under this Agreement), (B) to reinvest in Productive
Assets, or (C) a combination of prepayment, reduction and investment permitted
by the foregoing clauses (iii)(A) and (iii)(B). On the 366th day after an Asset
Sale or such earlier date, if any, as the Board of Directors of SCIS or of such
Restricted Subsidiary determines not to apply the Net Sale Proceeds relating to
such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and/or (iii)(C) of
the immediately preceding sentence (each, a "Net Proceeds Trigger Date"), such
aggregate amount of Net Sale Proceeds which have not been applied on or before
such Net Proceeds Trigger Date as permitted in clauses (iii)(A), (iii)(B) and/or
(iii)(C) of the immediately preceding sentence (each a "Net Proceeds Prepayment
Amount") shall be applied by SCIS or such Restricted Subsidiary to prepay
outstanding principal of the Loans on a date not more than 5 Business Days
following the applicable Net Proceeds Trigger
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Date, with such prepayment being applied in accordance with Sections 3.02(c) and
3.02(h) and shall include accrued interest thereon to the date of repayment;
provided, however, that if at any time any non-cash consideration received by
SCIS or any Restricted Subsidiary of SCIS, as the case may be, in connection
with any Asset Sale is converted into or sold or otherwise disposed of for cash,
then such conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Sale Proceeds thereof shall be applied in accordance with
this Section 7.05.
(b) Notwithstanding Section 7.05(a), if a Net Proceeds Prepayment
Amount is less than $5,000,000, the application of the Net Sale Proceeds
constituting such Net Proceeds Prepayment Amount may be deferred until such time
as such Net Proceeds Prepayment Amount plus the aggregate amount of all Net
Proceeds Prepayment Amounts arising subsequent to the Net Proceeds Trigger Date
relating to such initial Net Proceeds Prepayment Amount from all Asset Sales by
SCIS and its Restricted Subsidiaries aggregates at least $5,000,000, at which
time SCIS or such Restricted Subsidiary shall apply all Net Sale Proceeds
constituting all Net Proceeds Prepayment Amounts that have been so deferred to
prepay the Loans as provided above in this Section 7.05 (the first date the
aggregate of all such deferred Net Proceeds Prepayment Amounts is equal to
$5,000,000 or more shall be deemed to be a "Net Proceeds Trigger Date").
(c) Notwithstanding Sections (a) and (b) of this Section 7.05, SCIS
and its Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with Sections (a) and (b) of this Section 7.05 to the extent
(i) at least 75% of the consideration for such Asset Sale constitutes Productive
Assets and (ii) such Asset Sale is for fair market value (as determined in good
faith by the Board of Directors of SCIS); provided that the Net Sale Proceeds,
if any, received by SCIS or any of its Restricted Subsidiaries in connection
with any Asset Sale permitted to be consummated under this Section 7.05(c) shall
constitute Net Sale Proceeds subject to the provisions of Sections 7.05(a) and
7.05(b).
(d) Caterair will not, and will not permit any of its Subsidiaries
to, consummate a Caterair Asset Sale unless (i) Caterair or the applicable
Subsidiary, as the case may be, receives consideration at the time of such
Caterair Asset Sale at least equal to the fair market value of the assets sold
or otherwise disposed of (as determined in good faith by Caterair's Board of
Directors); (ii) at least 75% of the consideration received by Caterair or such
Subsidiary, as the case may be, from such Caterair Asset Sale shall be cash or
Cash Equivalents and is received at the time of such disposition; and (iii) upon
the consummation of a Caterair Asset Sale, Caterair shall apply, or cause such
Subsidiary to apply, the Net Sale Proceeds relating to such Caterair Asset Sale
within 365 days of receipt thereof either (A) to permanently prepay principal of
loans
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outstanding under the SCIS Credit Agreement (and, in the case of any repayment
of outstandings pursuant to any revolving loan or similar commitment, so long as
such revolving loan or similar commitment is permanently reduced by the amount
of such prepayment), provided to the extent that any portion of such proceeds
are to be so applied, then at least a proportionate share of such proceeds shall
be applied as a mandatory repayment of principal of outstanding Loans (with such
proportionate share to be based on the relative outstanding principal amount of
loans, letters of credit and unutilized commitments under the SCIS Credit
Agreement and the outstanding principal amount of Loans under this Agreement),
(B) to repay the SCIS/Caterair Note; provided that SCIS treats the proceeds
received from such repayment as proceeds of an Asset Sale by SCIS in compliance
with Section 7.05(a) of this Agreement, (C) to reinvest in Productive Assets, or
(D) a combination of prepayment, repayment, reduction and investment permitted
by the foregoing clauses (iii)(A), (iii)(B) and (iii)(C). On the 366th day after
a Caterair Asset Sale or such earlier date, if any, as the Board of Directors of
Caterair or of such Subsidiary determines not to apply the Net Sale Proceeds
relating to such Caterair Asset Sale as set forth in clause (iii) of the next
preceding sentence (each, a "Caterair Net Proceeds Sale Trigger Date"), such
aggregate amount of Net Sale Proceeds which have not been applied on or before
such Caterair Net Proceeds Prepayment Trigger Date as permitted in clauses
(iii)(A), (iii)(B), (iii)(C) and/or (iii)(D) of the immediately preceding
sentence (each, a "Caterair Net Proceeds Prepayment Amount") shall be applied by
Caterair or such Subsidiary to prepay outstanding principal of the Loans on a
date not more than 5 Business Days following the applicable Caterair Net
Proceeds Trigger Date, with such prepayment being applied in accordance with
Sections 3.02(c) and 3.02(h) and shall include accrued interest thereon to the
date of prepayment; provided, however, that if at any time any non-cash
consideration received by Caterair or any Subsidiary of Caterair, as the case
may be, in connection with any Caterair Asset Sale is converted into or sold or
otherwise disposed of for cash, then such conversion or disposition shall be
deemed to constitute a Caterair Asset Sale hereunder and the Net Sale Proceeds
thereof shall be applied in accordance with this Section 7.05.
7.06 Limitation on Preferred Stock of Subsidiaries. SCIS will not
permit any of its Restricted Subsidiaries to issue any Preferred Stock to any
Person or permit any Person to own any Preferred Stock of a Restricted
Subsidiary of SCIS, unless SCIS' percentage interest in the Preferred Stock of
such Restricted Subsidiary is equal to or greater than SCIS' percentage interest
in the common equity of such Restricted Subsidiary.
Caterair will not permit any of its Subsidiaries to issue any
Preferred Stock (other than to SCIS, a Wholly-Owned Restricted Subsidiary of
SCIS, Caterair or a Wholly-Owned Subsidiary of Caterair) or permit any Person
(other than SCIS, a
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Wholly-Owned Restricted Subsidiary of SCIS, Caterair or a Wholly-Owned
Subsidiary of Caterair) to own any Preferred Stock of any Subsidiary of
Caterair.
7.07 Limitation on Liens. SCIS will not, and will not permit any of
its Restricted Subsidiaries to, create, incur, assume or suffer to exist any
Liens of any kind against or upon any of its property or assets, or any proceeds
therefrom, except for (A) Liens created under the Security Documents and (B)
Permitted Liens.
Caterair will not, and will not permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Liens of any kind against or upon
any of its property or assets, or any proceeds therefrom, except for (i)
Permitted Liens and, (ii) Liens created under the Security Documents.
7.08 Conduct of Business of SCIS and Its Restricted Subsidiaries.
SCIS will not, and will not permit any of its Restricted Subsidiaries to, engage
in any business other than (i) the businesses in which SCIS, Caterair and their
respective Subsidiaries and joint ventures are engaged on the Closing Date; (ii)
the businesses of (A) producing, distributing, selling or delivering, or
providing management or other services with respect to, meals or other food
products, (B) providing catering services, (C) 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 (D) 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 SCIS'
Board of Directors to be similar, ancillary, complimentary or related to, or an
extension of, any business described in clause (i) or (ii) above.
7.09 Conduct of Business of Caterair. So long as any Lease Agreement
or License Agreement that is in effect on the Closing Date remains in effect,
Caterair will not, and will not permit any of its Subsidiaries to, engage in any
business other than the leasing of Leased Assets pursuant to the Lease
Agreements and the licensing of Licensed Assets pursuant to 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 Closing Date the
requisite consents to lease such flight kitchens to the SCIS or a Restricted
Subsidiary of SCIS and (ii) from and after the termination of the Lease
Agreements and the License Agreements that are in effect on the Closing Date,
Caterair and its Subsidiaries will not engage in any business other than the
businesses permitted to be engaged in by SCIS and its Restricted Subsidiaries
pursuant to Section 7.08, including entering into lease and license arrangements
with
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respect to those flight kitchens then owned by Caterair and its Subsidiaries
pursuant to arm's-length arrangements.
7.10 Guarantor Capital Stock. SCIS or a Subsidiary Guarantor will
own all of the Capital Stock of each Subsidiary Guarantor (other than Caterair).
7.11 Merger, etc. (a) SCIS will not, in a single transaction or a
series of related transactions, consolidate with or merge with or into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its assets to, another Person or Persons or adopt a Plan of Liquidation
unless:
(i) SCIS shall be the survivor of such merger or consolidation;
(ii) except in the case of a transaction between SCIS and a
Subsidiary Guarantor, immediately after giving effect to such transaction
(on a pro forma basis, including any Indebtedness incurred or anticipated
to be incurred in connection with such transaction), SCIS is able to incur
at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 7.03.
(iii) immediately before and immediately after giving effect to such
transaction (including any Indebtedness incurred or anticipated to be
incurred in connection with the transaction), no Default or Event of
Default shall have occurred and be continuing; and
(iv) SCIS shall have delivered to the Administrative Agent a
certificate of the Chief Financial Officer of SCIS and opinion of counsel
of SCIS satisfactory to the Administrative Agent, each stating that such
consolidation, merger or transfer complies with this Agreement, and that
all conditions precedent in this Agreement relating to such transaction
have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of related
transactions) of all or substantially all of the properties and assets of one or
more Subsidiaries of SCIS, the Capital Stock of which constitutes all or
substantially all of the properties and assets of SCIS, shall be deemed to be
the transfer of all or substantially all of the properties and assets of SCIS.
7.12 Senior Subordinated Notes, etc. Neither SCIS, Caterair nor any
of their respective Subsidiaries shall designate any Indebtedness, other than
the Obligations and the obligations under the SCIS Credit Documents, as
"Designated
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Senior Debt" for purposes of the Senior Subordinated Notes, the other Senior
Subordinated Note Documents or any other issue of subordinated Indebtedness.
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, SCIS 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 8. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
8.01 Payments. Any 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
interest on any Loan or Note, any Fees or any other amounts owing hereunder or
thereunder; or
8.02 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
8.03 Covenants. Any Credit Party shall 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 45 days after written notice to any Borrower by the Administrative
Agent or the 25% Banks (except in the case of a default with respect to Section
7.11, which will constitute an Event of Default with such notice requirement but
without such passage of time requirement); or
8.04 Default Under the SCIS Credit Agreement. (i) OFSI, Caterair
Holdings, SCIS or any Subsidiary of Caterair Holdings (including Caterair) or
SCIS shall (x) default in the payment of any Indebtedness under the SCIS Credit
Agreement beyond the period of grace, if any, provided in the SCIS Credit
Agreement or (y) default in the observance or performance of any other agreement
or condition contained in the SCIS Credit Agreement 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 would permit the holder or holders of the loans under the SCIS
Credit Agreement (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
loan to become due prior to its stated maturity and such default or other event
or condition shall continue unremedied or unwaived for a period of twenty (20)
days or
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(ii) any default shall occur or other event or condition shall exist under the
SCIS Credit Agreement the effect of which default or other event or condition is
to cause the loans under the SCIS Credit Agreement to become due prior to its
stated maturity (other than as a result of an asset sale or receipt of proceeds
in connection with a Recovery Event);
8.05 Default Under Other Indebtedness. (i) SCIS, Caterair, any
Significant Subsidiary of SCIS or Caterair or any combination of two or more
Non-Significant Subsidiaries of SCIS which at the time of determination own a
combined basis more than 10% of the consolidated assets of SCIS (determined on a
basis consistent with the definition of "Significant Subsidiary") shall (x)
default in any payment of any Indebtedness (other than the Obligations and any
Indebtedness arising under or in connection with the SCIS Credit Agreement)
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 SCIS Credit Agreement) 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 SCIS
Credit Agreement) of SCIS, Caterair, any Significant Subsidiary of SCIS or
Caterair or any combination of two or more Non-Significant Subsidiaries of SCIS
which at the time of determination own a combined basis more than 10% of the
consolidated assets of SCIS (determined on a basis consistent with the
definition of "Significant 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 8.05 unless the aggregate
principal amount of all Indebtedness as described in preceding clauses (i) and
(ii) is at least $15,000,000; or
8.06 Bankruptcy, etc. SCIS, Caterair or any Significant Subsidiary
of SCIS or Caterair 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 SCIS, Caterair or any Significant Subsidiary of SCIS or
Caterair 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 SCIS, Caterair or any Significant
Subsidiary of SCIS or Caterair, or SCIS, Caterair or any
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Significant Subsidiary of SCIS or Caterair commences 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 SCIS, Caterair or
any Significant Subsidiary of SCIS or Caterair, or there is commenced against
SCIS, Caterair or any Significant Subsidiary of SCIS or Caterair any such
proceeding which remains undismissed for a period of 60 days, or SCIS, Caterair
or any Significant Subsidiary of SCIS or Caterair is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or SCIS, Caterair or any Significant Subsidiary of SCIS
or Caterair 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 SCIS, Caterair or any
Significant Subsidiary of SCIS or Caterair makes a general assignment for the
benefit of creditors; or any corporate action is taken by SCIS, Caterair or any
Significant Subsidiary of SCIS or Caterair for the purpose of effecting any of
the foregoing.
8.07 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 7.07),
and subject to no other Liens (except as permitted by Section 7.07), 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
8.08 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 any OFSI Event of Default shall
occur; or
8.09 Judgments. One or more judgments or decrees shall be entered
against SCIS, Caterair or any Significant Subsidiary of SCIS or Caterair
involving in the aggregate for SCIS, Caterair and such Significant Subsidiaries
a liability (not paid or fully covered by a reputable and solvent insurance
company) and such judgments and
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decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 60 consecutive
days, and the aggregate amount of all such judgments exceeds $15,000,000; or
8.10 Change of Control. A Change of Control shall occur; 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 Borrowers, take any or all of the
following actions, without prejudice to the rights of the Administrative 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 8.06 shall
occur with respect to any Borrower, the result which would occur upon the giving
of written notice by the Administrative Agent to such Borrower as specified in
clauses (i) and (ii) below shall occur automatically without the giving of any
such notice): (i) declare the Total Commitments terminated, whereupon the
Commitment of each Bank shall forthwith terminate immediately; (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; and/or
(iii) direct the Collateral Agent to enforce any or all of the Liens and
security interests created pursuant to the Security Documents in accordance
with, and to the extent permitted by, such Security Documents.
SECTION 9. Definitions and Accounting Terms.
9.01 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):
"Acquired Indebtedness" shall mean Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of SCIS or a Subsidiary of Caterair, as the case may be, or at the
time it merges or consolidates with SCIS or any Subsidiary of SCIS or Caterair
or any Subsidiary of Caterair, as the case may be, or assumed in connection with
the acquisition of assets from such Person and not incurred by such Person in
connection with, or in anticipation or contemplation of such Person becoming a
Restricted Subsidiary of SCIS or a Subsidiary of Caterair, as the case may be,
or such acquisition, merger or consolidation.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement.
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"Affiliate" shall mean a Person who directly or indirectly through
one or more intermediaries controls, or is controlled by, or is under common
control with, another Person. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Affiliate Transaction" shall have the meaning provided in Section
7.02.
"Agent" shall mean each of the Administrative Agent, the Syndication
Agent and, for purposes of Sections 10, 11 and 12, each such Agent also in its
capacity as a Co-Arranger.
"Agreement" shall mean this Term Loan Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
thereof), extended, renewed, refinanced or replaced from time to time.
"Airline Catering Joint Venture" shall mean any joint venture,
partnership, limited liability company or other Person engaged in the business
of providing airline catering services.
"American Airlines" shall mean American Airlines, Inc., a Delaware
corporation.
"Applicable Margin" shall mean a percentage per annum equal to (i)
in the case of Base Rate Loans, .50%, and (ii) in the case of Eurodollar Loans,
1.50%.
"Asset Acquisition" shall mean (a) an Investment by SCIS or any
Restricted Subsidiary of SCIS in any other Person pursuant to which such Person
shall become a Restricted Subsidiary of SCIS or a Subsidiary of any Restricted
Subsidiary of SCIS, or shall be merged with or into SCIS or any Restricted
Subsidiary of SCIS, or (b) the acquisition by SCIS or any Restricted Subsidiary
of SCIS of the assets of any Person which constitute all or substantially all of
the assets of such Person, any division or line of business of such Person or
any other properties or assets of such Person other than in the ordinary course
of business.
"Asset Sale" shall mean any direct or indirect sale, issuance,
conveyance, transfer, lease (other than pursuant to operating leases of real or
personal property entered into in the ordinary course of business), assignment
or other transfer for value by SCIS or any Restricted Subsidiary of SCIS
(including any Sale and Leaseback Transaction) to any Person other than SCIS or
a Restricted Subsidiary of SCIS of (a) any Capital Stock of any Restricted
Subsidiary of SCIS or (b) any other property or
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assets of SCIS or any Restricted Subsidiary of SCIS other than in the ordinary
course of business; provided, however, that an Asset Sale shall not include (i)
a transaction or series of related transactions for which SCIS or its Restricted
Subsidiaries receive aggregate consideration of less than $1,000,000, (ii) the
sale or discount, in each case without recourse (other than recourse for breach
of a representation or warranty), of accounts receivable arising in the ordinary
course of business, but only in connection with the compromise or collection
thereof, (iii) the factoring or securitization of accounts receivable arising in
the ordinary course of business, and (iv) the sale or other disposition 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.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"Australian Assets" shall mean any of the shares of Caterair Airport
Services Pty Limited owned by Caterair Australia Pty Limited which Qantas Flight
Catering Holdings Limited has the option to acquire pursuant to the exercise 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.
"Authorized Financial Officer" of SCIS 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 SCIS 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 1.11
or 11.04(b).
"Bank Escrow Agreement" shall have the meaning provided in Section
6.10.
"Bankruptcy Code" shall have the meaning provided in Section 8.06.
"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.
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"Base Rate Loan" shall mean (i) each Loan until same is converted
into a Eurodollar Loan pursuant to Section 1.12 and (ii) each Loan converted
into such pursuant to Section 1.08 until such time (if any) as such Loan has
converted back into a Eurodollar Loan in accordance with the requirements of
Section 1.08(d).
"Board of Directors" shall mean, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean (i) the borrowing of Loans hereunder from all
the Banks on the Closing Date and (ii) the effectiveness of new Interest Periods
thereafter in respect of such Loans pursuant to Section 1.07, provided that Base
Rate Loans incurred pursuant to Section 1.08(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 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 Stock" shall mean (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of corporate stock, including each class of common stock
and Preferred Stock of such Person, and (ii) with respect to any Person that is
not a corporation, any and all partnership or other equity interests of such
Person.
"Capitalized Lease Obligation" shall mean, as to any Person, the
obligations of such Person under a lease that are required for financial
reporting purposes to be classified and accounted for as capital lease
obligations under GAAP and, for purposes of this definition, the amount of such
obligations at any date shall be
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the capitalized amount of such obligations at such date, determined in
accordance with GAAP.
"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, 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 of America 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 or
▇▇▇▇▇'▇ Investors Service, Inc.; (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 Standard & Poor's Ratings Service or at
least P-1 from ▇▇▇▇▇'▇ Investors Service, Inc.; (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 bank 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 comprised of securities of the types described in clauses (i) through
(v) above; and (vii) overnight deposits and demand deposits maintained in the
ordinary course of business.
"Caterair" shall have the meaning provided in the first paragraph of
this Agreement.
"Caterair Asset Sale" shall mean any direct or indirect sale,
issuance, conveyance, transfer, lease (other than pursuant to operating leases
of real or personal property entered into in the ordinary course of business),
assignment or other transfer for value by Caterair or any Subsidiary of Caterair
(including any Sale and Leaseback Transaction) to any Person other than Caterair
or a Wholly Owned Subsidiary of Caterair of (a) any Capital Stock of any
Subsidiary of Caterair or (b) any other property or assets of Caterair or any
Subsidiary of Caterair other than in the ordinary course of business; provided,
however, that "Caterair Asset Sale" shall not include (i) a transaction or
series of related transactions for which Caterair or its Subsidiaries receive
aggregate consideration of less than $1,000,000, (ii) the sale or discount, in
each case without recourse (other than recourse for breach of a representation
or warranty), of
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accounts receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof, (iii) the factoring or
securitization of accounts receivable arising in the ordinary course of
business, (iv) the sale or other disposition 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 and (v) the sale of assets to SCIS or any Restricted Subsidiary of SCIS
in connection with the exercise of the Purchase Option or any similar purchase
option for Leased Assets or Licensed Assets.
"Caterair" shall have the meaning provided in the first paragraph of
this Agreement.
"Caterair Commitment" shall mean, for each Bank, the amount set
forth opposite such Bank's name in Schedule I directly below the column entitled
"Caterair Commitment", as the same may be terminated pursuant to Sections 2.02
and/or 8.
"Caterair Holdings" shall mean Caterair Holdings Corporation, a
Delaware corporation.
"Caterair Holdings Escrow Agreement" shall mean the Escrow Agreement
in the form attached to the Caterair Holdings Subordination Agreement.
"Caterair Holdings Subordination Agreement" shall have the meaning
provided in Section 4.16.
"Caterair Loan" shall have the meaning provided in Section 1.01(b).
"Caterair Net Proceeds Prepayment Amount" shall have the meaning
provided in Section 7.05.
"Caterair Net Proceeds Trigger Date" shall have the meaning provided
in Section 7.05.
"Caterair Note" shall have the meaning provided in Section 1.04.
"Caterair Restricted Payment" shall have the meaning provided in
Section 7.01.
"Caterair Scheduled Repayment" shall have the meaning provided in
Section 3.02(a).
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"Caterair Tax Sharing Agreement" shall mean the Income Tax Sharing
Agreement, dated December 15, 1989, among Host Marriott Corporation, Caterair
Holdings and Caterair.
"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 SCIS, (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 or any other issue of subordinated Indebtedness of
SCIS, Caterair or any of their respective Subsidiaries.
"CII" shall mean Caterair International, Inc. (II), a Delaware
corporation and a Wholly-Owned Domestic Subsidiary of SCIS.
"Closing Date" shall mean the date occurring on or after the
Effective Date on which the Loans are incurred hereunder.
"Co-Arrangers" 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 Collateral, all Security Agreement Collateral, all Mortgaged
Properties and all cash and Cash Equivalents delivered as collateral pursuant to
any Security Document.
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"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.
"Commitment" shall mean any of the commitments of any Bank
hereunder, i.e. whether the SCIS Commitment or the Caterair Commitment.
"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 SCIS 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 SCIS or any of such holders in connection with the consummation of the
Consent Solicitation, including, without limitation, the 13% Senior Subordinated
Note Consents and the 13% Senior Subordinated Note Indenture Supplement.
"Consolidated Amortization Expense" shall mean, with respect to any
Person for any period, the consolidated amortization expense of such Person for
such period, determined on a consolidated basis for such Person and its
Restricted Subsidiaries (and, in the case of SCIS, Caterair and its
Subsidiaries) in conformity with GAAP.
"Consolidated Depreciation Expense" shall mean, with respect to any
Person for any period, the consolidated depreciation expense of such Person for
such period, determined on a consolidated basis for such Person and its
Restricted Subsidiaries (and, in the case of SCIS, Caterair and its
Subsidiaries) in conformity with GAAP.
"Consolidated EBITDA" shall mean, with respect to any Person for any
period, the sum, without duplication, of (i) Consolidated Net Income, (ii) to
the extent Consolidated Net Income has been reduced thereby, all income taxes of
such Person and its Restricted Subsidiaries (and, in the case of SCIS, Caterair
and its Subsidiaries) paid or accrued in conformity with GAAP for such period
(other than income taxes attributable to extraordinary or nonrecurring gains or
losses), (iii) Consolidated Interest Expense, (iv) Consolidated Amortization
Expense, (v) Consolidated Depreciation Expense and (vi) Consolidated Non-cash
Charges.
"Consolidated Fixed Charge Coverage Ratio" shall mean, with respect
to any Person, the ratio of Consolidated EBITDA of such Person during the four
full
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fiscal quarters (the "Four Quarter Period") ending on or prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of
such Person for the Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a pro
forma basis for the period of such calculation to (i) the incurrence or
repayment of any Indebtedness (excluding the incurrence of Indebtedness under
any revolving credit facility and including the repayment of Indebtedness under
any revolving credit facility only to the extent that such repayment effects a
permanent reduction in the availability thereunder) of such Person or any of its
Restricted Subsidiaries (and, in the case of SCIS, Caterair and its
Subsidiaries, other than Indebtedness between SCIS or any Subsidiary of SCIS and
Caterair or any Subsidiary of Caterair) (and the application of the proceeds
thereof) giving rise to the need to make such calculation and any incurrence or
repayment of other Indebtedness (and the application of the proceeds thereof) at
any time subsequent to the first day of the Four Quarter Period and on or prior
to the Transaction Date, as if such incurrence or repayment, as the case may be
(and the application of the proceeds thereof), occurred on the first day of the
Four Quarter Period and (ii) any Asset Sales or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Restricted Subsidiaries
(including any person who becomes a Restricted Subsidiary as a result of the
Asset Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness and also including any Consolidated EBITDA (including any pro forma
expense and cost reductions calculated on a basis consistent with Regulation S-X
under the Securities Act) attributable to the assets which are the subject of
the Asset Acquisition or Asset Sale during the Four Quarter Period) occurring
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such Asset
Sale or Asset Acquisition (including the incurrence, assumption or liability for
any such Indebtedness or Acquired Indebtedness) occurred on the first day of the
Four Quarter Period. If such Person or any of its Restricted Subsidiaries
directly or indirectly guarantees Indebtedness of a third Person, the preceding
sentence shall give effect to the incurrence of such guaranteed Indebtedness as
if such Person or any Restricted Subsidiary of such Person had directly incurred
or otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating
"Consolidated Fixed Charges" for purposes of determining the denominator (but
not the numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1)
interest on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall be
deemed to have accrued at a fixed rate per annum equal to the rate of interest
on such Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest
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rate based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect on the
Transaction Date will be deemed to have been in effect during the Four Quarter
Period; (3) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by
agreements relating to Interest Swap Obligations, shall be deemed to accrue at
the rate per annum (not in excess of the maximum possible rate if such agreement
is an interest rate cap, interest rate collar or similar agreement) resulting
after giving effect to the operation of such agreements; and (4) the permanent
retirement of any Indebtedness during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior to the
Transaction Date shall be given effect as if it occurred at the beginning of
such Four Quarter Period.
"Consolidated Fixed Charges" shall mean, with respect to any Person
for any period, the sum, without duplication, of (i) Consolidated Interest
Expense (including amortization or write-off of debt issuance costs), plus (ii)
the product of (x) the amount of all dividend payments on any series of
Preferred Stock of such Person (other than dividends paid in common stock) paid,
accrued or scheduled to be paid or accrued during such period and (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current effective consolidated federal, state and local tax rate
of such Person expressed as a decimal.
"Consolidated Interest Expense" shall mean, with respect to any
Person for any period, the sum, without duplication, of (i) the aggregate of all
cash and non-cash interest expense with respect to all outstanding Indebtedness
of such Person and its Restricted Subsidiaries (and, in the case of SCIS,
Caterair and its Subsidiaries), including the net costs associated with Interest
Swap Obligations and capitalized interest, for such period determined on a
consolidated basis in conformity with GAAP and (ii) the interest component of
Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by such Person and its Restricted Subsidiaries (and, in the case of
SCIS, Caterair and its Subsidiaries) during such period as determined on a
consolidated basis in accordance with GAAP. In addition, in calculating the
Consolidated Interest Expense of SCIS, interest expense with respect to
Indebtedness between SCIS or any Subsidiary of SCIS and Caterair or any
Subsidiary of Caterair shall be excluded therefrom.
"Consolidated Net Income" shall mean, with respect to any Person for
any period, the aggregate net income (or loss) of such Person and its
Subsidiaries (and, in the case of SCIS, Caterair) for such period on a
consolidated basis, determined in accordance with GAAP; provided that there
shall be excluded therefrom (a) gains and losses from Asset Sales (without
regard to the $1,000,000 limitation set forth in the
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definition thereof) and Caterair Asset Sales (without regard to the $1,000,000
limitation set forth in the definition thereof) or abandonments or reserves
relating thereto and the related tax effects, (b) items classified as
extraordinary or nonrecurring gains and losses, and the related tax effects
according to GAAP, (c) the net income (or loss) of any Person acquired in a
pooling of interests transaction accrued prior to the date it becomes a
Subsidiary of such first Person or is merged or consolidated with such first
Person or any Subsidiary of such first Person, (d) the net income of any
Subsidiary of such Person to the extent that the declaration of dividends or
similar distributions by that Subsidiary of that income is restricted by
contract, operation of law or otherwise, (e) the net loss of any Person, other
than a Restricted Subsidiary of such first Person and (f) the net income of any
Person, other than a Restricted Subsidiary of such first Person, in which such
first Person has an equity interest, except to the extent of cash dividends or
distributions paid to such first Person or a Restricted Subsidiary of such first
Person. Notwithstanding the foregoing, in calculating the Consolidated Net
Income of SCIS, (i) charges incurred by SCIS in connection with 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) shall not be deducted therefrom, (ii) the goodwill and the
increases in amortization and depreciation resulting from the consummation of
the transactions contemplated by the Master Agreement shall not be deducted
therefrom and (iii) interest payments or accruals on the SCIS/Caterair Note
shall not be taken into account.
"Consolidated Non-Cash Charges" shall mean, with respect to any
Person for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Restricted Subsidiaries (and, in the
case of SCIS, Caterair and its Subsidiaries) reducing Consolidated Net Income of
such Person and its Restricted Subsidiaries (and, in the case of SCIS, Caterair
and its Subsidiaries) for such period, determined on a consolidated basis in
conformity with GAAP (excluding any such charges constituting an extraordinary
item or loss or any such charge which requires an accrual of or a reserve for
cash charges for any future period).
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, the OFSI Guaranty, the Subsidiaries Guaranty, the Designated Onex
Subsidiaries Guaranty, each Security Document, the Caterair Holdings
Subordination Agreement and the Caterair Holdings Escrow Agreement.
"Credit Party" shall mean OFSI, Caterair Holdings, SCIS, Caterair
and each other Subsidiary Guarantor and solely for purposes of Sections 8.07 and
8.08, the Designated Onex Sub.
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"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"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 4.11.
"Designated Onex Sub Pledge Agreement" shall have the meaning
provided in Section 4.08.
"Disqualified Capital Stock" shall mean any Capital Stock which, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event (other than an
event which would constitute a Change of Control), matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control), in whole or in part, on or prior to
the final maturity date of the Securities.
"Documents" shall mean the Credit Documents, the SCIS Credit
Agreement, the Senior Subordinated Note Documents, the 13% Senior Subordinated
Note Tender Offer Documents and the Consent Solicitation Documents.
"Dollars" and the sign "$" shall each mean freely transferable legal
tender of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of SCIS or Caterair
incorporated or organized in the United States or any state or territory
thereof.
"Effective Date" shall have the meaning provided in Section 11.10.
"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.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of
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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 SCIS, Caterair or a Subsidiary of SCIS or Caterair
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 SCIS, Caterair or a
Subsidiary of SCIS or Caterair being or having been a general partner of such
person.
"Eurodollar Loan" shall mean each Loan outstanding at any time
hereunder on and after the Syndication Date, except during such time (and then
only to the extent) as such Loan is required to be maintained as a Base Rate
Loan in accordance with the provisions of Section 1.08.
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"Eurodollar Rate" shall mean (a) the offered quotation to
first-class banks in the London interbank Eurodollar market by ▇▇▇▇▇▇ for Dollar
deposits of amounts in immediately available funds comparable to the outstanding
principal amount of the Eurodollar Loan of ▇▇▇▇▇▇ 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).
"Event of Default" shall have the meaning provided in Section 8.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"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 SCIS/Caterair Credit Agreement and which have
not been released by the lenders thereunder prior to the Effective Date.
"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 2.01.
"Final Maturity Date" shall mean March 1, 2007.
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"Financial Projections" shall have the meaning provided in Section
5.05(d).
"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 SCIS, Caterair or any one or
more of their respective Subsidiaries primarily for the benefit of employees of
SCIS, Caterair 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 SCIS or Caterair
that is incorporated under the laws of any jurisdiction other than the United
States of America or any State thereof.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect as of the Closing Date, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession.
"General Pledge Agreement" shall have the meaning provided in
Section 4.08.
"Guaranteed Obligations" shall mean the irrevocable and
unconditional guaranty made by SCIS under the SCIS Guaranty (i) to the
Administrative 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 Caterair Note issued by Caterair to such
Bank, and Caterair Loans made, under this Agreement, together with all the other
obligations and liabilities (including, without limitation, indemnities, fees
and interest thereon) of Caterair to the Administrative 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 Caterair
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 any
Subsidiary of SCIS, Caterair or any of Caterair's Subsidiaries, the full and
prompt payment when due (whether by acceleration or otherwise) of all
obligations of any such
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Subsidiary of SCIS, Caterair or any such Subsidiary of Caterair 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 SCIS Guaranty, the
Subsidiaries Guaranty and the Designated Onex Sub Guaranty.
"Guarantor" shall mean OFSI, SCIS, Caterair, each other Subsidiary
Guarantor and the Designated Onex Sub.
"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.
"Indebtedness" shall mean with respect 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 Capitalized Lease Obligations of such Person,
(iv) all obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all obligations under
any title retention agreement (but excluding trade account payable and accrued
expenses arising in the ordinary course of business), (v) all obligations for
the reimbursement of an obligor on any letter of credit, banker's acceptance or
similar credit transaction, (vi) guarantees and other contingent obligations in
respect of Indebtedness referred to in clauses (i) through (v) above and clause
(viii) below, (vii) all obligations of any other Person of the type referred to
in clauses (i) through (vi) which are secured by any lien on any property or
asset of such Person, the amount of such obligation being deemed to be the
amount of the obligation so secured, (viii) all obligations under Other Hedging
Agreements and Interest Rate Protection Agreements of such Person, and (ix) all
Disqualified Capital Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends, if any. For
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purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value shall be determined reasonably and in good
faith by the Board of Directors of the issuer of such Disqualified Capital
Stock. The amount of Indebtedness of any Person at any date shall be the
outstanding principal amount of all unconditional obligations described above,
as such amount would be reflected on a balance sheet prepared in conformity with
GAAP, and the maximum liability at such date of such Person for any contingent
obligations described above.
"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 1.07.
"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 Swap Obligations" shall mean the obligations of any
Person, pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount.
"Investment" shall mean, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any Person. "Investment" shall exclude extensions of trade credit by SCIS
and its Restricted Subsidiaries and Caterair and its Subsidiaries on
commercially reasonable terms in accordance with normal trade practices of SCIS
and its Restricted Subsidiaries or Caterair and its Subsidiaries, as the case
may be. In no event shall this definition of "Investment" include payments by
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SCIS to a trust established in connection with a Voluntary Employees'
Beneficiary Association (as referred to in Section 501(c)(9) of the Internal
Revenue Code of 1986). For the purposes of Section 7.01, (i) an "Investment"
shall include and be valued at the fair market value of the net assets of any
Restricted Subsidiary of SCIS at the time that such Restricted Subsidiary is
designated an Unrestricted Subsidiary of SCIS and shall exclude the fair market
value of the net assets of any Unrestricted Subsidiary of SCIS at the time that
such Unrestricted Subsidiary is designated a Restricted Subsidiary of SCIS and
(ii) the amount of any Investment shall be the original cost of such Investment
plus the cost of all additional Investments by SCIS or any Restricted Subsidiary
of SCIS or Caterair or any Subsidiary of Caterair, as the case may be, without
any adjustments for increases or decreases in value, or write-ups, write-downs
or write-offs with respect to such Investment, reduced by the payment of
dividends or distributions (including tax sharing payments) in connection with
such Investment or any other amounts received in respect of such Investment, to
the extent constituting a return on capital in conformity with GAAP.
"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 Leased
Assets.
"Leased Assets" shall mean (i) 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 and
(ii) all other property and assets acquired by Caterair and substantially
contemporaneously with such acquisition leased by Caterair to SCIS or a
Restricted Subsidiary of SCIS.
"Leaseholds" of any Person means all the right, title and interest
of such Person as lessee or licensee in, to and under any lease.
"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 Licensed Assets.
"Licensed Assets" shall mean (i) the properties set forth on
Schedule 2.2(o) to the Master Agreement and (ii) all other property and assets
acquired by the Borrower and substantially contemporaneously with such
acquisition licensed by Caterair to SCIS or a Restricted Subsidiary of SCIS.
"Lien" shall mean any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other
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title retention agreement, any lease in the nature thereof and any agreement to
give any security interest, but excluding any operating lease of real or
personal property).
"Loan" shall mean each SCIS Loan and each Caterair 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.
"Margin Stock" shall have the meaning provided in Regulation U.
"Master Agreement" means the Master Agreement dated as of April 26,
1995, among OFSI, Caterair Holdings and Caterair, as amended from time to time.
"Minimum Borrowing Amount" shall mean $10,000,000.
"▇▇▇▇▇▇" 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
4.10.
"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.
"Mortgaged Property" shall mean each Real Property owned or leased
by any Credit Party designated as a Mortgaged Property on Schedule III or
pursuant to Section 6.09(a).
"NAIC" shall mean the National Association of Insurance
Commissioners.
"Net Equity Proceeds" shall mean with respect to the sale of Capital
Stock by any Person not constituting an Asset Sale or Caterair Asset Sale, as
the case
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may be, the aggregate net cash proceeds received by such Person after payment of
expenses, commissions and other similar charges incurred in connection
therewith.
"Net Proceeds Prepayment Amount" has the meaning provided in Section
7.05.
"Net Proceeds Trigger Date" has the meaning provided in Section
7.05.
"Net Sale Proceeds" shall mean with respect to any Asset Sale or
Caterair Asset Sale, as the case may be, the proceeds in the form of cash or
Cash Equivalents including payments in respect of deferred payment obligations
when received in the form of cash or Cash Equivalents (other than the portion of
any such deferred payment constituting interest) received by SCIS or any
Restricted Subsidiary of SCIS or Caterair or any Subsidiary of Caterair, as the
case may be, from such Asset Sale or Caterair Asset Sale, as the case may be,
net of (a) out-of-pocket expenses and fees relating to such Asset Sale or
Caterair Asset Sale, as the case may be (including, without limitation, legal,
accounting and investment banking fees and sales commissions), (b) any and all
taxes paid or payable after taking into account any reduction in consolidated
tax liability due to available tax credits or deductions and any tax sharing
arrangements, (c) repayment of Indebtedness that is required to be repaid in
connection with such Asset Sale or Caterair Asset Sale, as the case may be
(other than the Obligations and the obligations under the SCIS Credit
Agreement), (d) any portion of cash proceeds which SCIS or Caterair, as the case
may be, determines in good faith should be reserved for post-closing adjustments
or indemnities, it being understood and agreed that on the day that all such
post-closing adjustments or indemnities have been determined, the amount (if
any) by which the reserved amount in respect of such Asset Sale or Caterair
Asset Sale, as the case may be, exceeds the actual post-closing adjustments or
indemnities payable by SCIS or any Restricted Subsidiary of SCIS or Caterair or
any Subsidiary of Caterair, as the case may be, shall constitute Net Sale
Proceeds on such date.
"9 1/4% Senior Subordinated Note Documents" shall mean the 9.25%
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 SCIS 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.
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"9 1/4% Senior Subordinated Notes" shall mean SCIS' 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-Significant Subsidiary" of any Person shall mean any Restricted
Subsidiary of such Person which at the time of determination is not a
Significant Subsidiary of such Person.
"Note" shall mean each SCIS Note and each Caterair Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.02.
"Notice Office" shall mean the office of the Administrative Agent,
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 or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"OFSI" shall mean Onex Food Services, Inc., a Delaware corporation.
"OFSI Event of Default" shall have the meaning provided in the OFSI
Guaranty.
"OFSI Guaranty" shall have the meaning provided in Section 4.11.
"OFSI Pledge Agreement" shall have the meaning provided in Section
4.08.
"OFSI Tax Sharing Agreement" shall mean the Tax Sharing Agreement,
dated September 29, 1995, among OFSI, SCIS, Sky Chefs and CII.
"OnCap" shall mean OnCap Holding Corp., a corporation incorporated
under the laws of Ontario.
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"Onex" shall mean Onex Corporation, a corporation incorporated under
the laws of Ontario.
"Original SCIS/Caterair Credit Agreement" shall mean the Credit
Agreement, dated as of September 29, 1995, among OFSI, Caterair Holdings, SCIS,
Caterair, the lenders party thereto in their capacities as lenders thereunder,
Bankers Trust Company, ▇▇▇▇▇▇ Guaranty Trust Company of New York and ▇▇▇▇▇▇▇,
Sachs & Co., as co-arrangers, Bankers Trust Company, as syndication agent,
▇▇▇▇▇▇ Guaranty Trust Company of New York, as administrative agent, ▇▇▇▇▇▇▇,
Sachs & Co., as documentation agent, and The Bank of New York, as co-agent, as
such Credit Agreement is in effect on the Closing Date and immediately prior to
the incurrence of the Loans hereunder.
"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.
"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 Holders" shall mean (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, (ii) Onex,
(iii) OnCap, (iv) Lufthansa and/or (v) LSG/Lufthansa.
"Permitted Indebtedness" shall mean, without duplication, (i) the
Obligations, (ii) Indebtedness incurred pursuant to the SCIS Credit Agreement,
the aggregate outstanding principal amount of which shall not at any time exceed
the sum of the aggregate commitments pursuant to the SCIS Credit Agreement as in
effect on the Closing Date (A) less the amount of all mandatory principal
payments actually made in respect of any term loans thereunder and (B) reduced
by any required repayments (which are accompanied by a corresponding permanent
commitment reduction) thereunder actually effected in satisfaction of the
application of proceeds in accordance with Section 3.02(c) or 7.05, (iii) other
Indebtedness of SCIS, Caterair and their respective Subsidiaries outstanding on
the Closing Date (including the Senior
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Subordinated Notes), (iv) Interest Swap Obligations covering Indebtedness of the
Borrower or any of their respective Subsidiaries; provided that any Indebtedness
to which any such Interest Swap Obligations correspond is otherwise permitted to
be incurred under this Agreement; provided, further, that such Interest Swap
Obligations are entered into, in the judgment of SCIS or Caterair, as the case
may be, to protect SCIS or any Subsidiary of SCIS or Caterair or any Subsidiary
of Caterair, as the case may be, from fluctuations in interest rates on their
respective outstanding Indebtedness, (v) Indebtedness under Other Hedging
Agreements, (vi) (A) intercompany Indebtedness owed by SCIS to any Wholly-Owned
Restricted Subsidiary of SCIS or by any Restricted Subsidiary of SCIS to SCIS or
any Wholly-Owned Restricted Subsidiary of SCIS, (B) intercompany Indebtedness
owed by Caterair to any Wholly-Owned Subsidiary of Caterair or by any Subsidiary
of Caterair to Caterair or any Wholly-Owned Subsidiary of Caterair and (C)
Indebtedness between SCIS or any Wholly-Owned Restricted Subsidiary of SCIS, on
the one hand, and Caterair or any Wholly-Owned Subsidiary of Caterair, on the
other hand; provided that (x) any such intercompany indebtedness that is owed to
a Credit Party shall be evidenced by a promissory note which shall be duly
pledged and delivered pursuant to the General Pledge Agreement and (y) any such
intercompany indebtedness that is owed by a Credit Party to a non-Credit Party
shall contain the subordination provisions set forth on Exhibit M, (vii)
Acquired Indebtedness to the extent SCIS could have incurred such Indebtedness
in accordance with Section 7.03, (viii) (A) performance bonds, completion
guarantees and similar obligations (exclusive of obligations for the payment of
borrowed money) and (B) (1) guarantees by SCIS or any Wholly-Owned Restricted
Subsidiary of SCIS of Indebtedness of Caterair or any Wholly-Owned Subsidiary of
Caterair, (2) guarantees by Caterair or any Wholly-Owned Subsidiary of Caterair
of Indebtedness of SCIS or any Wholly-Owned Restricted Subsidiary of SCIS, (3)
guarantees by SCIS and its Wholly-Owned Restricted Subsidiaries of each other's
Indebtedness and (4) guarantees by Caterair and its Wholly-Owned Subsidiaries of
each other's Indebtedness; provided that in the case of each guarantee of
Indebtedness pursuant to preceding clauses (B) (1), (B) (2), (B) (3) or (B) (4),
such Indebtedness is incurred in accordance with Section 7.03, (ix) in addition
to Capitalized Lease Obligations permitted under any other clause of this
definition, purchase money Indebtedness and Indebtedness evidenced by
Capitalized Lease Obligations not to exceed an aggregate of $10,000,000 at any
one time outstanding, (x) any refinancing, modification, replacement, renewal,
restatement, refunding, deferral, extension, substitution, supplement,
reissuance or resale of existing or future Indebtedness, including Capitalized
Lease Obligations incurred after the repayment of all or a portion of the
Capitalized Lease Obligations outstanding as of the Closing Date so long as the
aggregate amount of Capitalized Lease Obligations incurred and outstanding at
any time pursuant to clause (iii) above and this clause (x) does not exceed the
amount of Capitalized Lease Obligations outstanding on the Closing Date, and any
additional Indebtedness incurred to pay premiums required by the instruments
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governing such existing or future Indebtedness as in effect at the time of
issuance thereof ("Required Premiums") and fees in connection therewith;
provided that any such event shall not (1) result in an increase in the
aggregate principal amount of Permitted Indebtedness (except to the extent such
increase is a result of a simultaneous incurrence of additional Indebtedness (A)
to pay Required Premiums and related fees or (B) otherwise permitted to be
incurred under Section 7.03) of SCIS, Caterair and their respective Subsidiaries
and (2) create Indebtedness with a Weighted Average Life to Maturity at the time
such Indebtedness is incurred that is less than the Weighted Average Life to
Maturity at such time of the Indebtedness being refinanced, modified, replaced,
renewed, restated, refunded, deferred, extended, substituted, supplemented,
reissued or resold (except that this subclause (2) will not apply in the event
the Indebtedness being refinanced, modified, replaced, renewed, restated,
refunded, deferred, extended, substituted, supplemented, reissued or resold was
originally incurred in reliance upon clause (ii), (x) or (xii) of this
definition), (xi) Indebtedness incurred in connection with the exercise of the
Purchase Option; provided that any payment made to Caterair in connection with
the exercise of the Purchase Option is used by Caterair to prepay the Loans or,
if there are no Loans outstanding, to repay the SCIS/Caterair Note; provided
that if Caterair elects to repay the SCIS/Caterair Note, SCIS immediately uses
the proceeds received from such repayment to prepay outstanding loans under the
SCIS Credit Agreement (and, in the case of any repayment of outstandings
pursuant to any revolving loan or similar Commitment, so long as such revolving
loan or similar Commitment is permanently reduced by the amount of such
prepayment), and (xii) additional Indebtedness of SCIS, Caterair and Restricted
Subsidiaries of SCIS in an aggregate principal amount not to exceed $75,000,000
at any one time outstanding (which amount may, but need not, be incurred in
whole or in part under the SCIS Credit Agreement). Notwithstanding anything to
the contrary contained in this definition or in Section 7.03, in no event shall
the aggregate outstanding principal amount of Indebtedness under the SCIS Credit
Agreement, when added to the aggregate outstanding principal amount of Loans,
exceed (x) at any time on or prior to December 31, 2000, $490,000,000, and (y)
at any time during any fiscal year of SCIS thereafter, an amount not to exceed
the product of Consolidated EBITDA of SCIS for the immediately preceding four
consecutive full fiscal quarters multiplied by 2.75.
"Permitted Investments" means (i) (A) Investments by SCIS or any
Restricted Subsidiary of SCIS in, or for the benefit of, any Restricted
Subsidiary of SCIS (whether existing on the Closing Date or created thereafter
and including Investments in any Person, if after giving effect to such
Investment, such Person would be a Restricted Subsidiary of SCIS) and
Investments in, or for the benefit of, SCIS by any Restricted Subsidiary of SCIS
and (B) Investments by Caterair in, or for the benefit of, any Subsidiary of
Caterair and Investments in, or for the benefit of, Caterair by any Subsidiary
of Caterair, (ii) cash and Cash Equivalents, (iii) Investments existing on the
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Closing Date, except for Investments in Restricted Subsidiaries of SCIS which
shall be governed by clause (i) (A) above, (iv) 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, (v) loans and advances by SCIS and its Subsidiaries to their
respective employees (A) the proceeds of which are used to purchase common stock
of OFSI and which proceeds are contemporaneously contributed by OFSI to SCIS
(which contribution shall not be included as a capital contribution for purposes
of clause (iii) (z) of the first paragraph of Section 7.01) or (B) in the
ordinary course of business, which loans or advances do not exceed $3,000,000 at
any one time outstanding (determined without regard to any write-downs or
write-offs thereof), (vi) the Guaranties, (viii) any Investment that qualifies
as Permitted Indebtedness, (viii) Investments by SCIS or any Restricted
Subsidiary of SCIS in Unrestricted Subsidiaries of SCIS or in other Persons in
an amount not to exceed $30,000,000 at any one time outstanding (determined
without regard to any write-downs or write-offs thereof), (ix) (A) Investments
by SCIS or any Restricted Subsidiary of SCIS in Caterair or any Wholly-Owned
Subsidiary of Caterair and (B) Investments by Caterair or any Subsidiary of
Caterair in SCIS or any Restricted Subsidiary of SCIS, (x) Investments received
by SCIS or any Restricted Subsidiary of SCIS or Caterair or any Subsidiary of
Caterair, as the case may be, as consideration for asset sales, including Asset
Sales or Caterair Asset Sales; provided that in the case of an Asset Sale or
Caterair Asset Sale, such Asset Sale or Caterair Asset Sale is effected in
compliance with Section 7.05 and (xi) in addition to Investments permitted under
clause (viii) above, Investments in Unrestricted Subsidiaries that are engaged
in the business of providing airline catering services and in Airline Catering
Joint Ventures in an aggregate amount not to exceed $50,000,000 at any one time
outstanding (determined without regard to any write-downs or write-offs
thereof).
"Permitted Liens" shall mean the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which SCIS or its Restricted Subsidiaries or
Caterair or its Subsidiaries, as the case may be, shall have set aside on
its books such reserves as may be required in conformity with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business, as well as
deposits to secure each of the foregoing, for sums not yet delinquent more
than 60 days or being contested in good faith, if such reserve or other
appropriate provision, if any,
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as shall be required by GAAP for financial reporting purposes shall have
been made in respect thereof;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, including any Lien securing letters of
credit issued in the ordinary course of business consistent with past
practice in connection therewith, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(iv) judgment Liens not giving rise to an Event of Default;
(v) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of SCIS and its
Restricted Subsidiaries, taken as a whole, or of Caterair and its
Subsidiaries, taken as a whole, as the case may be;
(vi) any interest or title of a lessor under any Capitalized Lease
Obligation permitted under Section 7.03 and precautionary filings made for
informational purposes in connection with true leases, consignments and
similar arrangements;
(vii) purchase money Liens to finance property or assets of SCIS or
any Restricted Subsidiary of SCIS or Caterair or any Subsidiary of
Caterair, as the case may be, acquired in the ordinary course of business;
provided, however, that (A) the related purchase money Indebtedness shall
not exceed the cost of such property or assets and shall not be secured by
any property or assets of SCIS or any Restricted Subsidiary of SCIS or
Caterair or any Subsidiary of Caterair, as the case may be, other than the
property and assets so acquired and (B) the Lien securing such
Indebtedness shall be created within 90 days of such acquisition;
(viii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptance issued or created for the account of such Person to
facilitate the purchase, shipment, or storage of such inventory or other
goods;
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(ix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of SCIS
or any Restricted Subsidiary of SCIS or Caterair or any Subsidiary of the
Borrower, as the case may be, including rights of offset and set-off;
(xi) Liens created under the Security Documents;
(xii) Liens existing on the Closing Date as generally set forth on
Schedule VI, together with any extensions, renewals or refinancings of
such Liens in reliance on clause (x) of the definition of Permitted
Indebtedness; provided that the Liens securing the refinancing
Indebtedness shall not extend to property other than that pledged under
the Liens securing the Indebtedness being refinanced;
(xiii) Liens placed upon the assets of any Foreign Subsidiary of
SCIS or the Borrower to secure Indebtedness incurred by such Foreign
Subsidiary to the extent such Indebtedness is permitted under Section
7.03;
(xiv) 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 SCIS,
Caterair or any of their respective Subsidiaries on deposit with such
trustees to secure any amounts owing to such trustees pursuant to such
Section; and
(xv) non-consensual Liens which do not individually or in the
aggregate materially detract from the value or transferability of the
property or assets of SCIS, any Restricted Subsidiary of SCIS, Caterair or
any Subsidiary of Caterair, or materially impair the use of any such
property or assets in the operation of the respective businesses of SCIS,
any Restricted Subsidiary of SCIS, Caterair or any Subsidiary the
Borrower.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, 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
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contributed to by (or to which there is an obligation to contribute of), SCIS,
Caterair or a Subsidiary or an ERISA Affiliate of SCIS or Caterair and each such
plan for the five year period immediately following the latest date on which
SCIS, Caterair or a Subsidiary or an ERISA Affiliate of maintained, contributed
to or had an obligation to contribute to such plan.
"Plan of Liquidation" shall mean, with respect to any Person, a plan
that provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such person to holders of
Capital Stock of such Person.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in the Pledge Agreements.
"Pledge Agreements" shall mean the OFSI Pledge Agreement, the
General Pledge Agreement and the Designated Onex Sub Pledge Agreement.
"Pledged Securities" shall mean all "Pledged Securities" as defined
in the Pledge Agreements.
"Preferred Stock" of any Person shall mean any Capital Stock of such
person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"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.
"Productive Assets" shall mean assets of a kind used or usable in
the businesses of SCIS and its Restricted Subsidiaries or Caterair and its
Subsidiaries, as the case may be, or similar, ancillary, complementary or
related to such businesses, as conducted on the date of the relevant Asset Sale
or Caterair Asset Sale, as the case may be, including, without limitation,
equity interests and other assets the acquisition of
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which would constitute a "Permitted Investment" under clause (i)(A) of the
definition thereof.
"pro forma" shall mean, with respect to any calculation made or
required to be made pursuant to the terms of this Agreement, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act.
"Public Equity Offering" shall mean an underwritten public offering
of Qualified Capital Stock of OFSI or SCIS pursuant to a registration statement
filed with the SEC in accordance with the Securities Act.
"Purchase Option" shall collectively refer to the option given to
Sky Chefs and CII pursuant to the Lease Agreements and the License Agreements
that are in effect on the Closing Date to purchase Leased Assets and Licensed
Assets.
"Qualified Capital Stock" shall mean stock that is not Disqualified
Capital Stock.
"Quarterly Payment Date" shall mean the 15th day of each March,
June, September and December occurring after the Closing 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 SCIS, Caterair or any
Subsidiary of SCIS or Caterair 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 SCIS, Caterair or
any Subsidiary of SCIS or Caterair.
"Reference Date" shall have the meaning provided in Section 7.01.
"Register" shall have the meaning provided in Section 11.16.
"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.
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"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.
"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing or migration into the environment.
"Replaced Bank" shall have the meaning provided in Section 1.11.
"Replacement Bank" shall have the meaning provided in Section 1.11.
"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, Banks the sum of whose
outstanding Loans represent an amount greater than fifty percent of the sum of
all outstanding Loans.
"Restricted Payment" shall have the meaning provided in Section
7.01.
"Restricted Subsidiary" of any Person shall mean any Subsidiary of
such Person which at the time of determination is not an Unrestricted Subsidiary
of such Person.
"Returns" shall have the meaning provided in Section 5.09.
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"Sale and Leaseback Transaction" shall mean any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to SCIS or a Restricted Subsidiary of SCIS or to Caterair or a
Subsidiary of Caterair, as the case may be, of any property, whether owned by
SCIS or a Restricted Subsidiary of SCIS or Caterair or a Subsidiary of Caterair,
as the case may be, on the Closing Date or later acquired, which has been or is
to be sold or transferred by SCIS or a Restricted Subsidiary of SCIS or Caterair
or a Subsidiary of Caterair, as the case may be, to such Person or to any other
Person from whom funds have been or are to be advanced by such Person on the
security of such Property.
"Scheduled Repayment" shall mean an SCIS Scheduled Repayment or a
Caterair Scheduled Repayment, as the case may be.
"SCIS" shall have the meaning provided in the first paragraph of
this Agreement.
"SCIS/Caterair Loan" shall mean the $37,788,000 subordinated loan
previously made by SCIS 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 Caterair to SCIS.
"SCIS Commitment" shall mean, for each Bank, the amount set forth
opposite such Bank's name in Schedule I directly below the column entitled "SCIS
Commitment", as the same may be terminated pursuant to Sections 2.02 and/or 8.
"SCIS Credit Agreement" shall mean the Credit Agreement, dated as of
September 29, 1995 and amended and restated as of August 28, 1997, among OFSI,
Caterair Holdings, SCIS, Caterair, the lenders party thereto from time to time
in their capacities as lenders thereunder, BTCo and ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
as co-arrangers, BTCo, as syndication agent, ▇▇▇▇▇▇, as administrative agent,
and The Bank of New York, as co-agent, together with the related documents
thereto (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, increasing the total
commitment under, refinancing, replacing or otherwise restructuring all or any
portion of the Indebtedness under such agreement or any successor or replacement
agreement and whether by the same or any other syndication agent, documentation
agent, administrative agent, lender or group of lenders.
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"SCIS Guaranty" shall mean the guaranty made by SCIS pursuant to
Section 12.
"SCIS Loan" shall have the meaning provided in Section 1.01(a).
"SCIS Note" shall have the meaning provided in Section 1.04.
"SCIS Scheduled Repayment" shall have the meaning provided in
Section 3.02(b).
"SEC" shall have the meaning provided in Section 6.01(h).
"Section 3.04(b)(ii) Certificate" shall have the meaning provided in
Section 3.04(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.
"Security Agreement" shall have the meaning provided in Section
4.09.
"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.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Notes, the Senior Subordinated Notes Indentures and all other
documents and agreements executed and delivered in connection therewith.
"Senior Subordinated Notes" shall mean the 13% Senior Subordinated
Notes and the 9 1/4% Senior Subordinated Notes.
"Senior Subordinated Notes Indentures" shall mean the 13% Senior
Subordinated Note Indenture and the 9 1/4% Senior Subordinated Note Indenture.
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"Significant Subsidiary" shall mean, as of any date of
determination, for any Person, each Subsidiary of such Person (or, in the case
of SCIS, each Restricted Subsidiary of SCIS) which (i) for the most recent
fiscal year of such Person accounted for more than 10% of consolidated revenues
of 10% of Consolidated EBITDA of such Person or (ii) as at the end of such
fiscal year, was the owner of more than 10% of the consolidated assets of such
Person.
"Sky Chefs" shall mean Sky Chefs, Inc., a Delaware corporation.
"Subordinated Intercompany Security Agreement" shall mean the
Subordinated Security Agreement, dated as of September 29, 1995, between SCIS
and Caterair.
"Subsidiaries Guaranty" shall have the meaning provided in Section
4.11.
"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.
"Subsidiary Guarantor" shall mean (i) Caterair, (ii) each
Wholly-Owned Domestic Subsidiary of SCIS and Caterair, (iii) any other
Subsidiary of OFSI (other than SCIS) or Caterair Holdings that becomes a
guarantor under the SCIS Credit Agreement.
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Taxes" shall have the meaning provided in Section 3.04(a).
"13% Senior Subordinated Note Consent" shall mean each written
consent permitting SCIS 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.
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"13% Senior Subordinated Note Indenture" shall mean the Indenture,
dated as of September 15, 1995, between SCIS 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 SCIS 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 Note Tender Offer" shall mean the offer by
SCIS 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 SCIS 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 4.19.
"13% Senior Subordinated Notes" shall mean SCIS' 13% Senior
Subordinated Notes due 2005 in aggregate principal amount of $125,000,000 issued
pursuant to the 13% Senior Subordinated Note Indenture.
"Total Commitments" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being two separate Tranches,
i.e., SCIS Loans and Caterair Loans.
"Transaction" shall mean (i) the amendment and restatement of the
Original SCIS/Caterair Credit Agreement in the form of the SCIS Credit
Agreement,
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(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 this Agreement and the incurrence of
the Loans hereunder on the Closing Date.
"25% Banks" shall mean, collectively, Banks the sum of whose
outstanding Loans represent an amount equal to or greater than twenty-five
percent of the sum of all outstanding Loans.
"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.
"Unrestricted Subsidiary" of any Person shall mean (i) any
Subsidiary of such Person that at the time of determination shall be or continue
to be designated an Unrestricted Subsidiary by the Board of Directors of such
Person in the manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors of SCIS may designate any Subsidiary of SCIS
(including any newly acquired or newly formed Subsidiary), other than a
Subsidiary Guarantor, to be an Unrestricted Subsidiary of SCIS unless such
Subsidiary of SCIS owns any Capital Stock of, or owns or holds any Lien on any
property of, SCIS or any other Subsidiary of SCIS that is not a Subsidiary of
the Subsidiary to be so designated; provided that (x) SCIS certifies to the
Administrative Agent that such designation complies with Section 7.01 and (y)
each Subsidiary of SCIS to be so designated and each of its Subsidiaries has not
at the time of designation, and does not thereafter, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable with respect
to any Indebtedness pursuant to which the lender has recourse to any of the
assets of SCIS or any of its Restricted Subsidiaries. Notwithstanding the
foregoing, SCIS or a Restricted Subsidiary of SCIS may guarantee Indebtedness of
an Unrestricted Subsidiary of SCIS if such guarantee is
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made in accordance with Section 7.01. The Board of Directors of SCIS may
designate any Unrestricted Subsidiary of SCIS to be a Restricted Subsidiary of
SCIS only if (x) immediately after giving effect to such designation, SCIS is
able to incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 7.03 and (y) immediately before and
immediately after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing. Any such designation by the Board
of Directors of SCIS shall be evidenced to the Administrative Agent by promptly
filing with the Administrative Agent a copy of the resolution giving effect to
such designation and a certificate of an Authorized Financial Officer of SCIS
certifying that such designation complied with the foregoing provisions.
"Weighted Average Life to Maturity" shall mean, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly-Owned Restricted Subsidiary" shall mean, as to any Person,
any Wholly-Owned Subsidiary of such Person which is a Restricted Subsidiary of
such Person.
"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 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).
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SECTION 10. The Agents.
10.01 Appointment. The Banks hereby designate ▇▇▇▇▇▇ as
Administrative Agent (for purposes of this Section 10, 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.
10.02 Nature of Duties. No Agent shall have any duties or
responsibilities except those expressly set forth in this Agreement and in 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.
10.03 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-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
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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 4 or (vi)
the existence or possible existence of any Default or Event of Default.
10.04 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.
10.05 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.
10.06 Indemnification. To the extent any Agent is not reimbursed and
indemnified by the Credit Parties, each Bank will reimburse and indemnify such
Agent, its affiliates and their respective officers, directors, agents and
employees, in proportion to their respective "percentages" as used in
determining the Required Banks, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions,
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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.
10.07 Each Agent in its Individual Capacity. With respect to its
obligation to make Loans 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.
10.08 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.
10.09 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 Borrowers 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 time by giving notice to the Borrowers,
the Administrative Agent and the Banks. Such resignation shall take effect upon
delivery of such notice.
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(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
Borrowers.
(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 Borrowers, 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 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 11. Miscellaneous.
11.01 Payment of Expenses, etc. The Borrowers, jointly and
severally, 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, 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 and for each of the Banks);
(ii) pay and hold each of the Agents 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 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
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or Bank, as the case may be) to pay such taxes; and (iii) indemnify each Agent
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 or any Bank or between any Agent 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 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 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 or any Bank set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, the Borrowers shall make the maximum contribution to the payment
and satisfaction of each of the indemnified liabilities which is permissible
under applicable law.
11.02 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, pro-
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test 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 11.06(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 11.02, 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.
11.03 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 SCIS or Caterair,
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 SCIS and Caterair 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 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.
11.04 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, neither SCIS nor Caterair may
assign or transfer any of its rights, obligations or interest hereunder or under
any other Credit
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Document without the prior written consent of the Banks (except as otherwise
expressly permitted under this Agreement) 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 outstanding
Loans hereunder except as provided in Section 11.04(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 or Note 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 repayment of Loans shall not constitute a change in the terms of
such participation), (ii) consent to the assignment or transfer by SCIS or
Caterair of any its rights and obligations under this Agreement (except as
otherwise expressly permitted under this Agreement), (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 or (iv) release SCIS from
its obligations under the SCIS Guaranty. 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
Borrowers 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 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 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
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
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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 11.04(b) Schedule I shall be deemed modified
to reflect the outstanding Loans of such new Bank and of the existing Banks,
(ii) upon surrender of the old Notes, new Notes will be issued, at the
respective Borrower's expense, to such new Bank and to the assigning Bank, such
new Notes to be in conformity with the requirements of Section 1.04 (with
appropriate modifications) to the extent needed to reflect the revised
outstanding Loans, (iii) the consent of the Administrative Agent shall be
required in connection with any such assignment pursuant to clause (y) above
(which consent shall not be unreasonably withheld or delayed), and (iv) 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 11.16. To the extent of any assignment pursuant to this Section
11.04(b), the assigning Bank shall be relieved of its obligations hereunder with
respect to its assigned Loans. At the time of each assignment pursuant to this
Section 11.04(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 respective Borrower and the Administrative Agent the appropriate
Internal Revenue Service Forms (and, if applicable a Section 3.04(b)(ii)
Certificate). To the extent that an assignment of all or any portion of a Bank's
outstanding Obligations pursuant to Section 1.11 or this Section 11.04(b) would,
at the time of such assignment, result in increased costs under Section 1.08 or
3.04 from those being charged by the respective assigning Bank prior to such
assignment, then the respective 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).
(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.
11.05 No Waiver; Remedies Cumulative. No failure or delay on the
part of any Agent, 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 or any Bank or the
holder of any Note
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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
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 or any Bank or the holder of any
Note to any other or further action in any circumstances without notice or
demand.
11.06 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 any Borrower in respect of any Obligations
hereunder, the Administrative Agent 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, 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 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 respective 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.
11.07 Calculations; Computations. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with GAAP, consistently applied throughout the periods involved (except as set
forth in the notes thereto or as otherwise disclosed in writing by SCIS or
Caterair to the Banks) and (ii) for purposes of calculating financial terms, all
covenants and related definitions, all such calculations based on the operations
of SCIS and its Restricted Subsidiaries on a
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consolidated basis shall be made without giving effect to the results of
operations of any Unrestricted Subsidiaries (which for this purpose shall be
treated as if same did not exist).
(b) All computations of interest and 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 or other are payable.
11.08 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 PROPERTY, 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
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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 RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
11.09 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 SCIS, Caterair and the
Administrative Agent.
11.10 Effectiveness. This Agreement shall become effective on the
date (the "Effective Date") on which each of SCIS, Caterair, the Administrative
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 at the Notice Office. The Administrative Agent will give
SCIS, Caterair and each Bank prompt written notice of the occurrence of the
Effective Date.
11.11 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.
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11.12 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 (or, in the case of the Subsidiaries Guaranty, the Designated
Onex Sub Guaranty and the Security Documents, as otherwise provided in such
Credit Documents), provided that no such change, waiver, discharge or
termination shall, without the consent of each 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 reduce the rate or extend
the time of payment of interest or Fees thereon, or reduce the principal amount
thereof (except to the extent repaid in cash), (ii) release all or substantially
all of the Collateral (except as expressly provided in the Credit Documents)
under all the Security Documents, (iii) release SCIS from its obligations under
the SCIS Guaranty, (iv) amend, modify or waive any provision of this Section
11.12, (v) 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
outstanding Loans are included on the Closing Date) or (vi) consent to the
assignment or transfer by SCIS or Caterair of any of their rights and
obligations under this Agreement (except as otherwise expressly permitted under
this Agreement); provided further, that no such change, waiver, discharge or
termination shall (x) increase the Commitment of any Bank over the amount
thereof then in effect without the consent of such Bank (y) without the consent
of each Agent affected thereby, amend, modify or waive any provision of Section
10 as same applies to such Agent or any other provision as same relates to the
rights or obligations of such Agent or (z) 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 (vi), inclusive, of the first proviso to
Section 11.12(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 Borrowers shall have the right, so long as all non-consenting Banks
whose individual consent is required are treated as described below, to replace
each such non-consenting Bank or Banks with one or more Replacement Banks
pursuant to Section 1.11 so long as at the time of such replacement, each such
Replacement Bank consents to the proposed change, waiver, discharge or
termination, provided that in any event the Borrowers shall not have the right
to replace a Bank 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 11.12(a).
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11.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.08, 1.09, 3.04, 11.01 and 11.06, shall survive the
execution, delivery and termination of this Agreement and the Notes 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 11.04(b) with respect to the period of
time in which such Bank was a "Bank" hereunder).
11.14 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 11.14 would, at the time of such
transfer, result in increased costs under Section 1.08, 1.09 or 3.04 from those
being charged by the respective Bank prior to such transfer, then the respective
Borrower shall not be obligated to pay such increased costs (although such
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).
11.15 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 (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 SCIS, 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 11.15, (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
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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 11.15 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 catering
agreements with American Airlines, and Information with respect thereto, for
which the confidentiality obligation shall in any event continue until December
31, 2007).
(c) In the event that an Agent, a Bank or a Representative or anyone
to whom information was transmitted pursuant to this Section 11.15 is requested
or 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
SCIS (to the extent such Person is legally permitted to do so) with prompt
notice so that SCIS or any other Credit Party may seek a protective order or
other appropriate remedy or waive compliance with the provisions of this Section
11.15. 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
11.15, such Agent or Bank shall furnish that portion of the Information that as
advised by counsel is legally required or advisable.
(d) This Section 11.15 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
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(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 11.15 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 11.15 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 11.15 but shall be in addition to all other remedies
available at law or equity to the Credit Parties.
11.16 Register. Each Borrower hereby designates the Administrative
Agent to serve as such Borrower's agent, solely for purposes of this Section
11.16, to maintain a register (the "Register") on which it will record the Loans
made by each of the Banks to such Borrower 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 respective
Borrower's obligations in respect of such Loans. With respect to any Bank, the
transfer of the rights to the principal of, and interest on, any Loan shall not
be effective until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Loans and prior to such
recordation all amounts owing to the transferor with respect to such Loans shall
remain owing to the transferor. The registration of assignment or transfer of
all or part of any 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
11.04(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 Loan, or as soon thereafter as
practicable, the assigning or transferor Bank shall surrender the Note
evidencing such Loan, and thereupon one or more new 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 11.16.
11.17 Assumption by SCIS. In the event that SCIS assumes any of the
Obligations of Caterair hereunder, SCIS, Caterair, the Administrative Agent and
the Banks shall enter into an amendment to this Agreement and, to the extent
necessary,
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each of the other Credit Documents, pursuant to which SCIS shall assume from
Caterair, and Caterair shall assign to SCIS, such of the Obligations of Caterair
as are assumed by SCIS pursuant to the terms of this Agreement.
11.18 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 SCIS 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 SCIS. In connection with such request,
OFSI shall have the right to transfer all of the outstanding shares of capital
stock of SCIS 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 SCIS 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,
SCIS, 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 the
SCIS Credit Agreement as such Sections are incorporated into the OFSI Guaranty
by reference, except for its 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 SCIS Credit Documents.
11.19 Certain Post-Closing Actions. Notwithstanding anything to the
contrary contained in Section 4.08, SCIS, Caterair 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 Closing Date but shall instead be required to
be delivered within 90 days following the Closing Date.
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SECTION 12. SCIS Guaranty.
12.01 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 SCIS from
the proceeds of the Caterair Loans and the entering into of the Interest Rate
Protection Agreements or Other Hedging Agreements, SCIS hereby agrees with the
Secured Creditors as follows: SCIS 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 Caterair to the Secured Creditors. If any
or all of the Guaranteed Obligations of Caterair to the Secured Creditors
becomes due and payable hereunder, SCIS 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.
12.02 Bankruptcy. Additionally, SCIS unconditionally and irrevocably
guarantees the payment of any and all of the Guaranteed Obligations of Caterair
to the Secured Creditors whether or not due or payable by Caterair upon the
occurrence of any of the events specified in Section 8.06, and unconditionally
promises to pay such indebtedness to the Secured Creditors, or order, on demand,
in lawful money of the United States.
12.03 Nature of Liability. The liability of SCIS hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations of Caterair whether executed by SCIS, any other guarantor
or by any other party, and the liability of SCIS hereunder is not affected or
impaired by (a) any direction as to application of payment by Caterair 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 Caterair, 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 Caterair, or (e) any payment made to the
Secured Creditors on the Guaranteed Obligations which any such Secured Creditor
repays to Caterair pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and SCIS waives any
right to the deferral or modification of its obligations hereunder by reason of
any such proceeding.
12.04 Independent Obligation. The obligations of SCIS hereunder are
independent of the obligations of any other guarantor, any other party or
Caterair, and
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a separate action or actions may be brought and prosecuted against SCIS whether
or not action is brought against any other guarantor, any other party or
Caterair and whether or not any other guarantor, any other party or Caterair be
joined in any such action or actions. SCIS 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 Caterair or other
circumstance which operates to toll any statute of limitations as to Caterair
shall operate to toll the statute of limitations as to SCIS.
12.05 Authorization. SCIS 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 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 Caterair,
any other Credit Party or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors,
Caterair 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 Caterair to its creditors other than the
Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of Caterair to the Secured Creditors regardless
of what liability or liabilities of Caterair remain unpaid;
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(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
SCIS from its liabilities under this Guaranty.
12.06 Reliance. It is not necessary for the Secured Creditors to
inquire into the capacity or powers of Caterair 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.
12.07 Subordination. Any of the indebtedness of Caterair now or
hereafter owing to SCIS is hereby subordinated to the Guaranteed Obligations of
Caterair 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
Caterair to SCIS shall be collected, enforced and received by SCIS 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
Caterair to the Secured Creditors, but without affecting or impairing in any
manner the liability of SCIS under the other provisions of this Guaranty. Prior
to the transfer by SCIS of any note or negotiable instrument evidencing any of
the indebtedness of Caterair to SCIS, SCIS shall ▇▇▇▇ such note or negotiable
instrument with a legend that the same is subject to this subordination. Without
limiting the generality of the foregoing, SCIS 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.
12.08 Waiver. (a) SCIS waives any right (except as shall be required
by applicable law and cannot be waived) to require the Secured Creditors to (i)
proceed against Caterair, any other guarantor or any other party, (ii) proceed
against or exhaust any security held from Caterair, any other guarantor or any
other party or (iii) pursue any other remedy in the Secured Creditors' power
whatsoever. SCIS waives any defense based on or arising out of any defense of
Caterair, 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
Caterair, any other guarantor or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or
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the cessation from any cause of the liability of Caterair 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
Caterair or any other party, or any security, without affecting or impairing in
any way the liability of SCIS hereunder except to the extent the Guaranteed
Obligations have been paid. SCIS 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 SCIS against Caterair or any other party or any security.
(b) SCIS 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 Guaranteed
Obligations. SCIS assumes all responsibility for being and keeping itself
informed of Caterair's financial condition and assets, and of all other
circumstances bearing upon the risk of non-payment of the Guaranteed Obligations
and the nature, scope and extent of the risks which SCIS assumes and incurs
hereunder, and agrees that neither any Agent nor any Bank shall have any duty to
advise SCIS of information known to them regarding such circumstances or risks.
(c) SCIS hereby acknowledges and affirms that it understands that to
the extent the Guaranteed Obligations are secured by Real Property located in
California, SCIS 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 SCIS' or any Secured Creditor's right to proceed against
Caterair or any other guarantor of the Guaranteed Obligations. In accordance
with Section 2856 of the California Civil Code, SCIS hereby waives:
(i) all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become
available to SCIS by reason of Sections 2787 to 2855, inclusive, 2899 and
3433 of the California Civil Code;
(ii) all rights and defenses that SCIS 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
SCIS without first foreclosing on any real or personal property collateral
pledged by Caterair; and (B) if the Secured Creditors foreclose on any
Real
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Property collateral pledged by Caterair, (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 SCIS even
if the Secured Creditors, by foreclosing on the Real Property collateral,
have destroyed any right SCIS may have to collect from Caterair. This is
an unconditional and irrevocable waiver of any rights and defenses SCIS
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 SCIS' rights of subrogation and reimbursement
against the Borrower by the operation of Section 580d of the Code of Civil
Procedure or otherwise.
SCIS 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.
12.09 Maximum Amount. It is the desire and intent of SCIS and the
Secured Creditors that this Guaranty shall be enforced against SCIS to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If, however, and to the extent
that, the obligations of SCIS under this Guaranty shall be adjudicated to be
invalid or unenforceable for any reason (including, without limitation, because
of any applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of SCIS obligations under this Guaranty shall be
deemed to be reduced and SCIS shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable law.
* * *
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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.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ INTERNATIONAL SERVICES, INC.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
Attention: President ------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Authorized Signatory
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR INTERNATIONAL
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CORPORATION
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
Attention: President ------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Authorized Signatory
with a copy to:
c/o Sky Chefs, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Executive Vice President
127
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, Individually and as
Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
128
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as a Co-Arranger
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP
129
BANKERS TRUST COMPANY,
Individually and as Syndication Agent
and a Co-Arranger
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: VICE PRESIDENT
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
131
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
ASSOCIATE
132
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS
L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: AUTHORIZED SIGNATORY
133
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VICE PRESIDENT
134
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
135
CITIBANK, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
136
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
(A UNIT OF THE CHASE MANHATTAN BANK)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: MANAGING DIRECTOR
137
DEEPROCK & COMPANY
BY: ▇▇▇▇▇ ▇▇▇▇▇ Management
as Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. Page
-------------------------------------
Name: ▇▇▇▇▇ ▇. Page
Title: Vice President
138
▇▇▇ ▇▇▇▇▇▇ American Capital
Prime Rate Income Trust
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
139
CIBC INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
CIBC Wood Gundy Securities
Corp, As Agent
140
KZH-SOLEIL CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Agent
141
PRIME INCOME TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: V.P. PORTFOLIO MANAGER
142
PACIFIC INVESTMENT MANAGEMENT COMPANY,
as Investment Advisor for PIMCO High
Yield Fund (Acct 705) acting through
Investors Fiduciary Trust Company in
the Nominee Name of IFTCO
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
143
KZH-SOLEIL CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
144
KZH-CRESCENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
145
SCHEDULE I
COMMITMENTS
Banks Caterair SCIS
----- Commitments Commitments
----------- -----------
▇▇▇▇▇▇ Guaranty Trust Company $58,560,000 $32,940,000
Deeprock & Company 1,280,000 720,000
▇▇▇ ▇▇▇▇▇▇ American Prime Rate 13,760,000 7,740,000
Income Trust
CIBC Inc. 6,400,000 3,600,000
KZH-Crescent Corporation 6,400,000 3,600,000
BankBoston, N.A. 6,400,000 3,600,000
Bankers Trust Company 12,800,000 7,200,000
Citibank N.A. 6,400,000 3,600,000
Credit Suisse First Boston 6,400,000 3,600,000
Prime Income Trust 6,400,000 3,600,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. 6,400,000 3,600,000
▇▇▇▇▇▇ Financial, Inc. 6,400,000 3,600,000
Octagon Credit Investors Loan 6,400,000 3,600,000
Portfolio
KZH-Soleil Corporation 6,400,000 3,600,000
The Bank of New York 6,400,000 3,600,000
PIMCO High Yield Fund 3,200,000 1,800,000
----------- -----------
Total $160,000,000 $90,000,000
146
SCHEDULE II
BANK ADDRESSES
▇▇▇▇▇▇ Guaranty Trust ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Company of ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bankers Trust Company ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
The Bank of New York ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
BankBoston, N.A. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chip Gaysonas
Citibank, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Credit Suisse First Boston ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
147
SCHEDULE II
Page 2
KZH-Crescent Corporation ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Deeprock & Company State Street Bank & Trust Company
Corporate Trust Division
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (617)
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ Financial ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
CIBC Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ Dijati
148
SCHEDULE II
Page 3
Octagon Credit Investors Loan ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Pacific Investment Management ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Prime Income Trust ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
KZH-Soleil Corporation One Sun America Center
Century City, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ American Prime One Parkview Plaza
Rate Income Trust ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
SCHEDULE III
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
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇
CATERAIR INTERNATIONAL TRANSITION CORPORATION NONE
149
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
150
==================================================================================================================================
Owned/
Shop # Address City State Country Zip Airport Leased
==================================================================================================================================
Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (Closed - warehouse) ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ANC L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ANC L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PHX O
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs 1235 S 23rd (Closed - Warehouse) ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PHX L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PHX O
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ TUS L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SF0 O
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SF0 L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (1/2 of building leased to ▇▇▇▇▇▇▇) ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SF0 L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SF0 L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SF0 L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇ (Remote Facility - SNA 381) ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BUR L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SNA L
----------------------------------------------------------------------------------------------------------------------------------
380 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LGB L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LAX L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LAX L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Building M-111, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Way Oakland CA US 94603 OAK L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ONT L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇. ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PSP L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SMF L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SAN L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ SJC L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ DEN L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BDL L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ FTM L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇) ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ FLL L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇) ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ FLL L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ 33315 FLL L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MIA O
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs 3755 N.W. 2lst ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MIA L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MIA L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MIA O
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Bldg. No. 3088, Miami Int'l Airport (sub Let to United) ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MIA L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ (Leased to A & C Bakery) (Southland) ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MCO O
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MCO L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ TPA L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ PBI L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ATL L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ HNL L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs 3129 Lualena (Closed - Warehouse) ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ HNL L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs 2635 ▇▇▇ ▇▇▇ Loop (Closed - Warehouse - Leased) ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ HNL L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs 3239 Koapaka Street (Closed - Warehouse) (leased to 4 tennants) ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ HNL L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇'▇▇▇▇ International Airport Chicago IL US 60666 ORD L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MSY L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BOS L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BOS L
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Sky Chefs #1 Wood Island Park, ▇▇▇▇▇ Int Airport (Closed - Warehouse) ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BOS L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BOS L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BWI L
----------------------------------------------------------------------------------------------------------------------------------
060 Bldg. 113, Elk Road (Warehouse) ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ BWI L
----------------------------------------------------------------------------------------------------------------------------------
Caterair ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇. ▇▇.▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MI US 48242 DTW L
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Sky Chefs Bldg. No. 505, Detroit Metro Airport ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ DTW L
----------------------------------------------------------------------------------------------------------------------------------
397 221 West 79th Street (storage) ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MSP L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MSP L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ MCI L
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Sky Chefs Terminal C RDU Airport Raleigh NC US 80307 RDU L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ RDU L
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Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ OMA L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ALB L
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Sky Chefs Building 95, ▇▇▇▇▇▇▇▇ ▇▇ South Newark NJ US 71141 EWR L
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Sky Chefs ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LAS L
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ RNO O
----------------------------------------------------------------------------------------------------------------------------------
Sky Chefs Hanger #5, LaGuardia Airport ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ LGA
----------------------------------------------------------------------------------------------------------------------------------
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 Aiport ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ 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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151
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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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. (Closed - 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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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, Hangar ▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ 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, Guarulnos 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
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339.04 Comisariato Mazatlan, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ GDL
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Sky Chefs Comisariato Mazatlan, S.A. de C.V.,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ MZT L
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338.01 Caterair In-Flite Services de Mexico,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ City Mexco 15700 O
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Sky Chefs Casa ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇.▇. de C.V.,
Posicion ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ L
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339.01 Cocina del Aire, S.A. de C.V.,
Aeropuerto Internacional Interior ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ L
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338.91 ▇▇▇▇▇▇▇ #132, Col. Penon De Los Banos C.P. 15520 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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341 ▇▇▇▇▇▇▇ #132, Col. Penon De Los Banos C.P. 15520 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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va ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ #▇▇▇, ▇▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ C.P. 15520 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ O
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Sky Chefs Comisariato Monterrey, S.A. de C.V.,
Aeropuerto Internacional Gral.
▇▇▇▇▇▇▇ Escobedo, Apodaco, N.L. 66600 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ MTY L
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Sky Chefs Comisariato Mazatlan, S.A. de C.V.,
Aeropuerto Civil ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ PVR L
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Sky Chefs Comisariato de Baja California
S.A. de C.V., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ TIJ O
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Auckland New Zealand L
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Wellington New Zealand L
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Christchurch New Zealand L
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Rarotonga New Zealand L
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Sky Chefs Caterair Internacional de Panama,
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PTY L
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Sky Chefs Caterair Portugal, Assistencia A Bordo,
▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇. ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LIS
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Sky Chefs Caterair Barcelona, Aeropuerto de Barcelona,
Post Office ▇▇▇ ▇▇.▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ BCN
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Sky Chefs Caterair Barcelona, Aeropuerto ▇▇▇▇▇▇ ▇'▇▇▇▇,
Costa Brava ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
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Sky Chefs Caterair Madrid, ▇/▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 28042 MAD
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Sky Chefs Caterair Madrid, Frente ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ AGP
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Sky Chefs Caterair Barcelona, Apartodo ▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ MAH
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Sky Chefs Caterair Barcelona, Aeropuerto Son San ▇▇▇▇ ▇▇▇▇▇ de Mallorca Spain PMI
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Sky Chefs Caterair U.K., Manor Royal Trading Estates,
Faraday, Road, Crawley, Sussex Gatwick U.K. 10-2PX LGW
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇. LGW
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324.01 Administrative Office Horley U.K. Admin.
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Sky Chefs Caterair/GCC In-Flite Services,
Faggs Road, Feltham, Middlesex London U.K. 13ONQ LHR
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Sky Chefs Caterair U.K., Pinfold Lane Ringway,
Altrincham Cheshire Manchester U.K. 158XA MAN
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Sky Chefs Caterair Internacional ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Caracas Venezuela CCS
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304.01 Maricabo Venezuela
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153
SCHEDULE IV
SUBSIDIARIES
As required by Section 5.15 of the Caterair Term Loan Agreement, this
schedule details each subsidiary of which SCIS or CIC owns or holds, directly or
indirectly, more than 50% of the ordinary voting power or more than a 50% equity
interest.
Subsidiaries of SC International Services. Inc. ("SCIS"):
Class of % of Direct
Name Stock Ownership Owner
---- ----- --------- -----
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
Onex Ohio Fiscal Corp. Common 100% SCIS
154
Class of % of Direct
Name Stock Ownership Owner
---- ----- --------- -----
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 Pry. Ltd. ("Aust") Ordinary; 100% CAP
Preferred
Caterair Airport Services Pry. 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
Western Aire Chef, Inc. Common 100% ASH
-2-
155
Class of % of Direct
Name Stock Ownership Owner
---- ----- --------- -----
Sky Chefs Chile, S.A. ("Chile") ---- 100% Western Aire
Caterair Servicos Industriales, Ltda. ---- 94% Chile
Comercialindora 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, Norninal 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
Comisariato Gotre, S.A. 2 Series 100% Mexico
Bearer
Shares
-3-
156
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 International Corporation ("CIC"):
Class of % Holdings' Direct
Name Stock Ownership Owner
---- ----- --------- -----
Caterair Portugal - Assistencia A Bordo --- 74% CIC
Limitada
-4-
157
SCHEDULE V
EXISTING INDEBTEDNESS
OF SCIS, CIC
AND THEIR
RESPECTIVE SUBSDIARIES
As required by Section 5.22(a) of the Term Loan 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 SCIS Credit Agreement and
this Agreement, the letters of credit listed on Schedule III to the SCIS Credit
Agreement, the Senior Subordinated Notes, the Caterair Holdings Unsecured
Debentures, the Caterair Holdings Secured Note, and the SCIS/Caterair Loan, as
of the Closing Date:
Borrowing Principal
Entity Lender/Lessor Amount Guarantor
------ ------------- ------ ---------
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, SC International Services, Inc. $27,612,618 None
Inc. (II)
Bethesda Services, Inc. ---None---
Caterair New Zealand Limited SC Int'l Services Ireland $2,651,600 None
Cateringpor Sky Chefs, Inc. $2,669,490 None
Arlington Services, Inc. Sky Chefs, Inc. $32,439,960 None
158
Borrowing Principal
Entity Lender/Lessor Amount Guarantor
------ ------------- ------ ---------
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
Caterair International City of Houston $2,025,000 None
Corporation
-2-
159
Borrowing Principal
Entity Lender/Lessor Amount Guarantor
------ ------------- ------ ---------
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
LSG/Sky Chefs SC Int'l Services Ireland $ 650,000 None
Venezuela C.A.
-3-
160
Borrowing Principal
Entity Lender/Lessor Amount Guarantor
------ ------------- ------ ---------
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
Sky Chefs de Mexico Immobilaria Marracas $48,288 None
Arlington Services Mexico $45,080 None
Casa ▇▇▇▇▇ de ▇▇▇▇ Sky Chefs de Mexico $262,344 None
-4-
161
Borrowing Principal
Entity Lender/Lessor Amount Guarantor
------ ------------- ------ ---------
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 Closing Date. The aggregate amount of such purchase money
Indebtedness and Capitalized Lease Obligations outstanding at June 30, 1997
approximated $31,800,000.
-5-
162
SCHEDULE VI
EXISTING LIENS
This schedule sets forth the liens in existence on the Closing 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
Closing Date. The aggregate amount of such purchase money Indebtedness and
Capitalized Lease Obligations outstanding at June 30, 1997 approximated
$31,800,000.
163
EXHIBIT A
NOTICE OF BORROWING
[Date]
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent for the Banks party
to the Term Loan Agreement
referred to below
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Gentlemen:
The undersigned, [Caterair International Corporation] [SC
International Services, Inc.] (the "Borrower"), refers to the Term Loan
Agreement, dated as of August 28, 1997 (as amended from time to time, the "Term
Loan Agreement," the terms defined therein being used herein as therein
defined), among the Borrower, [SC International Services, Inc.] [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, and you, as Administrative Agent for such
Banks, and hereby gives you notice, irrevocably, pursuant to Section 1.02 of the
Term Loan Agreement, that the undersigned hereby requests the Borrowing of
[Caterair] [SCIS] Loans under the Term Loan Agreement, and in that connection
sets forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 1.02 of the Term Loan Agreement:
(i) The Business Day of the Proposed Borrowing is _________,
19__.(1)
(ii) The aggregate principal amount of the Proposed Borrowing
is $___________.
(iii) The Loans to be made pursuant to the Proposed Borrowing
shall be maintained as Eurodollar Loans.
(iv) The initial Interest Period for the Proposed Borrowing is
___ month(s).
____________
(1) Shall be a Business Day at least three Business Days after the date
hereof.
164
EXHIBIT A
Page 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.
Very truly yours,
[CATERAIR INTERNATIONAL CORPORATION]
[SC INTERNATIONAL SERVICES, INC.]
By________________________________
Name:
Title:
165
EXHIBIT B-1
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 SCIS 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 1.06 of the Agreement.
This Note is one of the SCIS Notes referred to in the Term
Loan Agreement, dated as of August 28, 1997, among Caterair International
Corporation, the Borrower, 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, and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Administrative 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.
166
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:
167
EXHIBIT B-2
NOTE
$________________ New York, New York
________ __, ____
FOR VALUE RECEIVED, CATERAIR INTERNATIONAL CORPORATION, a
Delaware corporation (the "Borrower"), hereby promises to pay to
_________________________ or its registered assigns (the "Bank"), in lawful
money of the United States of America in immediately available funds, at the
office of ▇▇▇▇▇▇ Guaranty Trust Company of New York (the "Administrative Agent")
located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ on the Final Maturity
Date (as defined in the Agreement referred to below) the principal sum of
_______________ DOLLARS ($_____________) or, if less, the then unpaid principal
amount of all Caterair 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 1.06 of the Agreement.
This Note is one of the Caterair Notes referred to in the Term
Loan Agreement, dated as of August 28, 1997, among SC International Services,
Inc., the Borrower, 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, and ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative 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.
168
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.
CATERAIR INTERNATIONAL CORPORATION
By________________________________
Title:
169
EXHIBIT C
SECTION 3.04(b)(ii) CERTIFICATE
Reference is hereby made to the Term Loan Agreement, dated as
of August 28, 1997, among SC International Services, Inc., Caterair
International Corporation, various Banks, 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 Agreement"). Pursuant to the provisions of Section 3.04(b)(ii) of the
Term Loan 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:
170
EXHIBIT E
[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 4.03 and
4.05 of the Term Loan Agreement, dated as of August 28, 1997, among SC
International Services, Inc., 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,
and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative Agent (such
Term Loan Agreement, as in effect on the date of this Certificate, being herein
called the "Term Loan Agreement"). Unless otherwise defined herein, capitalized
terms used in this Certificate shall have the meanings set forth in the Term
Loan 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 Term
Loan 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.
171
EXHIBIT E
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 4.02, 4.07, 4.12, 4.13, 4.17 and 4.19 of the Term Loan 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 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.
172
EXHIBIT E
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:
▇▇▇
▇▇▇▇▇▇▇ ▇
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] [9] [10] above are true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day
of _________, 1997.
____________________________
Name:
Title:
174
EXHIBIT F
OFFICER'S SOLVENCY CERTIFICATE
I, the undersigned, the _______________________ of Caterair
International Corporation, a corporation organized and existing under the laws
of the State of Delaware (the "Company"), do hereby certify on behalf of the
Borrower that:
1. This Certificate is furnished pursuant to Section 4.14 of
the Term Loan Agreement, dated as of August 28, 1997 (as amended from time to
time, the "Credit Agreement") among SC International Services, Inc. ("SCIS"),
the Company, various Banks 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 for such Banks. 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
Borrowers and their respective Subsidiaries (taken as a whole)
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
Borrowers and their respective Subsidiaries (taken as a whole)
are sold in an arm's-length transaction with reasonable
promptness under present conditions for the sale of comparable
business enterprises.
175
EXHIBIT F
Page 2
(c) "New Financing"
The indebtedness incurred or to be incurred by the Borrowers
under the Credit Documents and all other financing
contemplated by the Credit Documents (including the SCIS
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
Borrowers and their respective Subsidiaries (taken as a whole)
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 Borrowers and their respective Subsidiaries
(taken as a whole) (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, the Borrowers and their
respective Subsidiaries (taken as a whole), will have
sufficient assets and cash flow to pay its Stated Liabilities
and Contingent Liabilities as those liabilities mature or
otherwise become due.
176
EXHIBIT F
Page 3
(g) "Does not have Unreasonably Small Capital"
For the period from the date hereof through the stated
maturity of all New Financing, the Borrowers and their
respective Subsidiaries (taken as a whole), 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 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 the Borrowers at December 31, 1996 and June 30,
1997, and the related consolidated statements of income and
cash flow and changes in shareholders' equity of the Borrowers
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 the Borrowers 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
Borrowers 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 liabilities
of each Borrower.
177
EXHIBIT F
Page 4
(d) I have read:
1. the Credit Documents, the SCIS 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 Borrowers 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 Borrowers 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 Borrowers (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 Borrowers
which have responsibility for financial reporting and
accounting matters regarding whether they were aware of any
events or conditions that, as of the date hereof, would cause
the Borrowers and their respective Subsidiaries (taken
178
EXHIBIT F
Page 5
as a whole) 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 the Borrowers and their respective Subsidiaries (taken as
a whole) exceed its Stated Liabilities and Contingent Liabilities; (ii) the
Borrowers and their respective Subsidiaries (taken as a whole) will not have
Unreasonably Small Capital; and (iii) the Borrowers and their respective
Subsidiaries (taken as a whole) will be able to pay its Stated Liabilities and
Contingent Liabilities as they mature or otherwise become due.
179
EXHIBIT F
Page 6
IN WITNESS WHEREOF, the Company has caused its duly authorized
_______________________ to execute and deliver this Certificate this 28th day of
August, 1997.
CATERAIR INTERNATIONAL
CORPORATION
By______________________________
Name:
Title:
180
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-
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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;
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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
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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),
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(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,
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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:
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(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,
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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.
* * *
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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:
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▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 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:
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▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 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:
201
EXHIBIT G-1
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 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:
202
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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:
203
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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:
204
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:
205
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
------------------------------------------------------------------------------------------------------------------------------------
206
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.
207
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
====================================================================================================================================
208
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")
---------------------------------------------------------------------------------------------------------------------------------
209
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
-----------------------------------------------------------------------------------------------------------------------------------
210
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)
==================================================================================================================================
211
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
--------------------------------------------------------------------------------
212
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.
------------------------------------------------------------------------------------------
213
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.
========================================================================================
214
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:
215
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
216
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
217
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,
218
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
219
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
220
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.
221
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).
222
EXHIBIT G-2
Page 13
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
223
EXHIBIT G-2
Page 14
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,
224
EXHIBIT G-2
Page 15
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;
225
EXHIBIT G-2
Page 16
(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
226
EXHIBIT G-2
Page 17
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).
* * *
227
EXHIBIT G-2
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 Sky Chefs,Inc. ONEX FOOD SERVICES, INC.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as Pledgor
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By__________________________
Title:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ TRUST
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ COMPANY OF NEW YORK,
as Pledgee, Collateral Agent
By__________________________
Title:
228
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
-----------------------------------------------------------------------------------------------------------
===========================================================================================================
229
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
==========================================================================================
230
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:
231
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,
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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
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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
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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
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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
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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).
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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
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(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
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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
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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
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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-
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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)).
243
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
244
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.
245
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
246
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
247
EXHIBIT G-3
Page 17
of the Obligations shall be limited to the Collateral and the Pledgor's right,
title and interest therein.
* * *
248
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:
249
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
==================================================================================================
250
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:
251
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
================================================================================
252
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)
253
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)
254
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)
255
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,
256
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
257
EXHIBIT H
Page 3
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.
258
EXHIBIT H
Page 4
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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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)
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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.
* * *
296
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. ▇▇-▇▇▇▇▇▇▇
297
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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: ▇▇-▇▇▇▇▇▇▇
298
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
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: ▇▇-▇▇▇▇▇▇▇
299
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, 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
300
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: ▇▇-▇▇▇▇▇▇▇
301
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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: ▇▇-▇▇▇▇▇▇▇
302
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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: ▇▇-▇▇▇▇▇▇▇
303
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.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
304
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
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
305
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
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
306
ANNEX A
to Security
Agreement
Page 4
ONEX OHIO FISCAL CORP. II
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO EQUITY CORP. II
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ONEX OHIO CAPITAL CORP. II
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
307
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
308
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
309
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 ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
310
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 #▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
311
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
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
312
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
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
313
ANNEX B
Page 7
Location Address Leased or Owned Type of Facility
-------- ------- --------------- ----------------
Tulsa Cargo Building Leased Flight Kitchen
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
314
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.
315
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
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
316
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. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
317
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
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
318
ANNEX B
Page ▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Location Address Leased, Owned Type of Facility
-------- ------- or Managed ----------------
----------
Headquarters ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Leased Corporate Offices
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Charleston ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Owned Flight Kitchen
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
319
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
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
320
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
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
321
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
322
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
323
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
324
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
325
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
326
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
327
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
328
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
329
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
330
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
331
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
332
ANNEX F
Page 4
ONEX OHIO EQUITY CORP. II
NONE
ONEX OHIO CAPITAL CORP. II
NONE
333
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
334
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
337
SCHEDULE A
▇▇▇▇ REG. NO. REG. DATE
---- -------- ---------
338
SCHEDULE B
PATENT PATENT NO. ISSUE DATE
------ ---------- ----------
339
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
340
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
343
SCHEDULE A
U.S. COPYRIGHTS
REGISTRATION PUBLICATION
NUMBERS DATE COPYRIGHT TITLE
------------ ----------- ---------------
344
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
345
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.
346
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.
347
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
348
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ 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
349
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ 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
350
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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
351
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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
352
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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
353
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
354
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;
355
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
356
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
357
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
358
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
359
EXHIBIT I-1
Page 7
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:
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▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ 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:
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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:
373
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:
374
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:
375
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:
376
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:
377
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,
378
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;
379
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
380
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
381
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
382
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.
383
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
384
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
385
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
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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
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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
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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
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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
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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.
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EXHIBIT I-2
Page 15
* * *
392
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:
393
EXHIBIT J
OFSI GUARANTY
GUARANTY, dated as of August 28, 1997 (as amended, modified or
supplemented from time to time, this "Guaranty"), made by ONEX FOOD SERVICES,
INC., a Delaware corporation (the "Guarantor"), and for the limited purposes set
forth in Sections 11, 13, 14, 15, 17, 19 and 20 hereof, Caterair Holdings
Corporation ("Caterair Holdings"). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, SC International Services, Inc. ("SCIS"), Caterair
International Corporation ("Caterair", and together with SCIS, the "Borrowers"),
various lenders from time to time party thereto (the "Banks"), Bankers Trust
Company and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as 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 "Administrative Agent"), have entered into a Term Loan Agreement,
dated as of August 28, 1997, providing for the making of loans as contemplated
therein (as used herein, the term "Credit Agreement" means the Term Loan
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 Banks, the Co-Arrangers and the Administrative Agent are herein called the
"Bank Creditors");
WHEREAS, each Borrower or one or more of its 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 in respect of the Credit Agreement (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");
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EXHIBIT J
Page 2
WHEREAS, the Guarantor is an Affiliate of Caterair and the
parent company of SCIS;
WHEREAS, Caterair Holdings is an Affiliate of SCIS and the
parent company of Caterair;
WHEREAS, it is a condition to the making of Loans under the
Credit Agreement that the Guarantor and Caterair Holdings shall have executed
and delivered this Guaranty; and
WHEREAS, the Guarantor and Caterair Holdings will obtain
benefits from the incurrence of Loans under the Credit Agreement and the
entering into of Interest Rate Protection Agreements or Other Hedging Agreements
and, accordingly, desire to execute this Guaranty in order to satisfy the
conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to the Guarantor and Caterair Holdings, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor and Caterair
Holdings hereby make (to the extent applicable to such Person) the following
representations and warranties to the Secured Creditors and hereby covenant and
agree with each Secured Creditor as follows:
1. The Guarantor, irrevocably, absolutely and unconditionally
guarantees: (i) to the 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 (or
assumed by), the Borrowers, under the 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 the Borrowers to the Bank Creditors under the Credit
Agreement or any other Credit Document to which any such Borrower 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 Credit Agreement or any such other Credit Document and the due performance
and compliance by the Borrowers with all of the terms, conditions and agreements
contained in the Credit Documents (all such principal, interest, liabilities,
indebtedness and obligations being herein collectively called the "Credit
Document Obligations"); and (ii) 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 or any Subsidiary of any Borrower under any
Interest Rate Protection Agreement or Other
395
EXHIBIT J
Page 3
Hedging Agreement, whether now in existence or hereafter arising, and the due
performance and compliance by such 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.
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 any Borrower or any such Subsidiary of any of the
events specified in Section 8.06 of the 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. 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 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.
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EXHIBIT J
Page 4
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 the 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 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;
397
EXHIBIT J
Page 5
(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.
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
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EXHIBIT J
Page 6
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 the
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 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,
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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 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 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 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
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EXHIBIT J
Page 8
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 such 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 the Administrative Agent or the Collateral Agent,
in each case acting upon the instructions of the Required Banks (or, after the
date on which all Credit Document Obligations have been paid in full, the
holders of at least a majority of the outstanding Other Obligations) and that no
other Secured Creditors shall have any right individually to seek to enforce or
to enforce this Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent or the Collateral Agent or
the holders of at least a majority of the outstanding Other Obligations, as the
case may be, 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 the Guarantor.
11. (a) In order to induce the Banks to make the Loans under
the Credit Agreement, and to induce the Other Creditors to enter into the
Interest Rate Protection Agreements and Other Hedging Agreements, each of OFSI
and Caterair Holdings, makes each of the representations and warranties set
forth in Section 7 of the SCIS Credit Agreement to the extent applicable solely
to such Credit Party (and not to any of the Subsidiaries of such Credit Party),
in each case after giving effect to the Transaction, all
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EXHIBIT J
Page 9
of which are incorporated herein in their entirety and as if fully set forth
herein and all of which shall survive the execution and delivery of this
Guaranty and the making of the Loans, with the occurrence of the Closing Date
and the making of the Loans on such date being deemed to constitute a
representation and warranty that the matters specified in this Section 11(a) are
true and correct in all material respects on and as of the Closing 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).
(b) Each of the Guarantor and Caterair Holdings covenants and
agrees that on and after the Closing Date and so long as the Credit Agreement is
in effect and any Guaranteed Obligations remain outstanding, each of the
Guarantor and Caterair Holdings will comply with each of the covenants contained
in Sections 8, 9.01, 9.02 and 9.04 of the SCIS Credit Agreement to the extent
applicable solely to such Credit Party (and not to any of the Subsidiaries of
such Credit Party) which Sections, together with all definitions in the SCIS
Credit Agreement applicable to such Sections, are hereby incorporated by
reference as if set forth herein in their entirety.
(c) The occurrence of any of the following specified events
should constitute an "OFSI Event of Default":
(A) Representations, etc. Any representation, warranty or
statement made (or deemed made) by the Guarantor or Caterair Holdings herein or
in any certificate delivered pursuant hereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or
(B) Covenants. The Guarantor or Caterair Holdings shall
default in the due performance or observance by it of any term, covenant or
agreement of the SCIS Credit Agreement that is incorporated herein by reference
and such default shall continue unremedied for a period of 45 days after written
notice to the Guarantor or Caterair Holdings by the Administrative Agent or the
25% Banks (or, after the date on which all Credit Document Obligations have been
paid in full, the holders of at least 25% of the outstanding Other Obligations);
or
(C) Default Under Other Indebtedness. (i) The Guarantor,
Caterair Holdings or the Designated Onex Sub shall (x) default in any payment of
any Indebtedness (other than the Guaranteed 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)
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EXHIBIT J
Page 10
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 Guaranteed 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 Guaranteed 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 the Guarantor,
Caterair Holdings or the Designated Onex Sub 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 OFSI Event of Default under this clause (C) unless the aggregate
principal amount of all Indebtedness as described in preceding clauses (i) and
(ii) is at least $15,000,000; or
(D) Bankruptcy, etc. The Guarantor, Caterair Holdings or the
Designated Onex Sub shall commence a voluntary case concerning itself under the
Bankruptcy Code; or an involuntary case is commenced against the Guarantor,
Caterair Holdings or the Designated Onex Sub 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
the Guarantor, Caterair Holdings, or the Designated Onex Sub, or the Guarantor,
Caterair Holdings or the Designated Onex Sub commences 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 the Guarantor,
Caterair Holdings or the Designated Onex Sub or there is commenced against the
Guarantor, Caterair Holdings or the Designated Onex Sub any such proceeding
which remains undismissed for a period of 60 days, or the Guarantor, Caterair
Holdings or the Designated Onex Sub is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or proceeding is entered;
or the Guarantor, Caterair Holdings or the Designated Onex Sub 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 the Guarantor, Caterair Holdings or the
Designated Onex Sub makes a general
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EXHIBIT J
Page 11
assignment for the benefit of creditors; or any corporate action is taken by the
Guarantor, Caterair Holdings or the Designated Onex Sub for the purpose of
effecting any of the foregoing; or
(E) Judgments. One or more judgments or decrees shall be
entered against the Guarantor, Caterair Holdings or the Designated Onex Sub
involving in the aggregate for the Guarantor, Caterair Holdings and the
Designated Onex Sub 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 60 consecutive days, and the aggregate amount
of all such judgments exceeds $15,000,000; or
(F) 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.
For purposes of Section 11(b) of this Guaranty, the term "SCIS
Credit Agreement" shall mean the SCIS Credit Agreement as is in effect on the
Closing Date and giving effect to any amendments, restatements, modifications,
waivers or supplements thereto after the Closing Date, provided that from and
after the termination of the SCIS Credit Agreement, the covenants (and related
definitions) set forth therein and incorporated herein by reference shall be
those covenants (and related definitions) as in effect immediately prior to the
termination of the SCIS Credit Agreement.
12. The Guarantor hereby agrees to pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent and the Collateral
Agent in connection with any amendment, waiver or consent relating hereto and of
the Administrative Agent, 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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EXHIBIT J
Page 12
13. This Guaranty shall be binding upon the Guarantor and
Caterair Holdings and their respective 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, Caterair Holdings (to the extent such change, waiver, discharge or
termination affects Caterair Holdings) and with the written consent of either
(x) the Required Banks at all times prior to the time on which all Credit
Document Obligations have been paid in full or (y) the holders of at least a
majority of the outstanding Other Obligations at all times after the time on
which all Credit Document Obligations have been paid in full; 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.
For the purpose of this Guaranty the term "Class" shall mean each class of
Secured Creditors, i.e., whether (x) the Bank Creditors as holders of the Credit
Document Obligations or (y) 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 (x) with respect to the Credit Document Obligations, the
Required Banks and (y) 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. Each of the Guarantor and Caterair Holdings 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 the 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
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EXHIBIT J
Page 13
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 the Administrative
Agent or the Required Banks 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 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.
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 Credit
Agreement, (ii) in the case of the Guarantor and Caterair Holdings at their
address set forth opposite their 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 and Caterair Holdings; 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
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EXHIBIT J
Page 14
to this Guaranty 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 of the Guarantor and Caterair
Holdings hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. Each of
the Guarantor and Caterair Holdings hereby further irrevocably waives any claim
that any such court lacks personal jurisdiction over such Credit Party, and
agrees not to plead or claim in any legal action or proceeding with respect to
this Guaranty brought in any of the aforesaid courts that any such court lacks
personal jurisdiction over such Credit Party. Each of the Guarantor and Caterair
Holdings 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 Credit
Party at its address set forth opposite its signature below, such service to
become effective 30 days after such mailing. Each of the Guarantor and Caterair
Holdings 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 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 or
Caterair Holdings in any other jurisdiction.
(b) Each of the Guarantor and Caterair Holdings 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 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 OF THE GUARANTOR, CATERAIR HOLDINGS 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, 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
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EXHIBIT J
Page 15
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with the Guarantor, Caterair Holdings 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 Borrowers under Sections 3.03 and 3.04 of the Credit Agreement.
22. Notwithstanding anything to the contrary contained in this
Guaranty, the Secured Creditors acknowledge and agree that they shall have no
recourse against the Guarantor under this Guaranty in respect of the Class B
Assets (as defined in the SCIS Credit Agreement as in effect on the date hereof)
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 Guarantor.
* * *
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EXHIBIT J
Page 16
IN WITNESS WHEREOF, each of the Guarantor and Caterair
Holdings has caused this Guaranty to be executed and delivered as of the date
first above written.
Addresses:
c/o Sky Chefs, Inc. ONEX FOOD SERVICES, INC.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as Guarantor
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President By:__________________________
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ Name:
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ Title:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CATERAIR HOLDINGS CORPORATION
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ By:__________________________
Attention: President Name:
Title:
with a copy to:
c/o Sky Chefs, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Executive Vice President
Accepted and Agreed to:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
as Administrative Agent and
Collateral Agent
By:__________________________
Name:
Title:
409
EXHIBIT K
ASSIGNMENT AND ASSUMPTION AGREEMENT
Date __________, 19__
Reference is made to the Term Loan Agreement described in Item
2 of Annex I hereto (as such Term Loan 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
relating to the outstanding SCIS Loans and/or Caterair Loans as set forth in
Item 4 of such Annex A.
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 any
Borrower or any other Credit Party or the performance or observance by any
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
11.04(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
410
EXHIBIT K
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 11.04(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 11.04(b) of the Credit Agreement, receipt by the Administrative Agent
of the assignment fee referred to in such Section 11.04(b) and the recordation
of the assignment as provided in Section 11.16 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 all
interest on the Assigned Share of the Loans at the rates specified in Item 6 of
Annex I which accrue on and after the Settlement Date, such interest 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 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 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.
7. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
------------
(1) Include if the Assignee is organized under the laws of a jurisdiction
outside of the United States.
411
EXHIBIT K
Page 3
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:
Consented to as of ____________ __, _____.
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
By_________________________________________
Title:
412
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
ANNEX I
1. Borrowers: Caterair International Corporation and SC International
Services, Inc.
2. Name and Date of Term Loan Agreement:
Term Loan Agreement, dated as of August 28, 1997, among SC
International Services, Inc., 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, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent, as amended to the date hereof.
3. Date of Assignment Agreement:
4. Amounts (as of date of item #3 above):
Outstanding
Principal Outstanding
Amount of Principal Amount
Caterair Loans of SCIS Loans
-------------- ----------------
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 1.06 of the
Term Loan Agreement (unless
otherwise agreed to by the Assignor and the
Assignee)(2)
------------
(2) The respective Borrower and the Administrative Agent shall direct the entire
amount of the interest to the Assignee at the rate set forth in Section 1.06 of
the Term Loan Agreement with the Assignor and Assignee effecting the agreed upon
sharing of the interest through payments by the Assignee to the Assignor.
413
Annex I
Page 2
7. Notice:
ASSIGNOR:
____________
____________
____________
Attention:
Telephone:
Telecopier:
Reference:
ASSIGNEE:
____________
____________
____________
Attention:
Telephone:
Telecopier:
Reference:
414
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)
415
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
416
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
417
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
418
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
4
419
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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420
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
6
421
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
422
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:
8
423
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
424
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.
10
425
(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
426
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
427
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
428
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
429
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
430
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
431
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
432
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
433
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
434
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 or
the purpose of defining the
435
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
436
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).
437
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
438
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
439
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