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EXHIBIT 10.38
ACQUISITION AGREEMENT
BETWEEN
LSG LUFTHANSA SERVICE USA CORPORATION
AND
SKY CHEFS, INC.
November 30, 1995
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ACQUISITION AGREEMENT
This ACQUISITION AGREEMENT ("Agreement") is made and entered into this
30th day of November, 1995, by and between LSG LUFTHANSA SERVICE USA CORPORATION
("LSG"), a corporation organized under the laws of the State of Delaware, and
SKY CHEFS, INC. ("Sky Chefs"), a corporation organized under the laws of the
State of Delaware. Each of LSG and Sky Chefs may be referred to herein as a
"Party" and both may be referred to herein as "the Parties."
R E C I T A L S
WHEREAS, LSG operates flight kitchen catering facilities at the San
Francisco International Airport and the Miami International Airport; and
WHEREAS, LSG desires to sell all of its business and assets in these
facilities to Sky Chefs, and Sky Chefs desires to acquire all of LSG's business
and assets in these facilities;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, and agreements, and upon the terms and subject to the
conditions hereinafter set forth, the Parties do hereby agree, intending to be
legally bound, as follows:
ARTICLE I
DEFINITIONS
ASSETS shall have the meaning set forth in Article 2.1.
CATERAIR means Caterair International Corporation, a corporation
organized under the laws of the State of Delaware.
CLOSING shall have the meaning set forth in Article 4.1.
CUSTOMER CONTRACTS shall have the meaning set forth in Article 2.2.
DISSOLUTION AGREEMENT means the Dissolution Agreement, dated January
21, 1994, between LSG and Caterair, dissolving the LSG-Caterair joint venture.
EQUIPMENT LEASE AGREEMENT means the Equipment Lease Agreement, dated
1990, between Caterair and the LSG-Caterair
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joint venture. This agreement was subsequently assigned to LSG in the
Dissolution Agreement.
KITCHEN LEASE AGREEMENTS mean the Kitchen Lease Agreements, each dated
January 15, 1990, between Caterair and the LSG-Caterair joint venture, for the
kitchen catering facilities at San Francisco International Airport and Miami
International Airport. These agreements were subsequently assigned to LSG in the
Dissolution Agreement.
KITCHENS mean the airline kitchen catering facilities that LSG operates
at the San Francisco International Airport and the Miami International Airport.
MANAGEMENT SERVICES AGREEMENT means the Management Services Agreement,
dated January 12, 1995, between LSG and Sky Chefs.
MIA means Miami International Airport.
MIA ASBESTOS LIABILITY means, as described in Section 5.10 of the
Dissolution Agreement, and expressly assumed by Caterair therein, any liability
with respect to the underground storage tanks at the MIA Kitchen and the
presence of asbestos containing material within the MIA Kitchen.
PHH FLEET AMERICA LEASE AGREEMENT means the PHH Fleet America Truck
Lease Assumption Agreement, dated January 21, 1994, between LSG, Caterair, and
PHH Fleet America.
SFO means San Francisco International Airport.
TERMINATION AGREEMENT shall have the meaning set forth in Article 3.2.
ARTICLE 2
ACQUISITION OF ASSETS; ASSUMPTION OF LIABILITIES
2.1 PURCHASE AND SALE OF ASSETS
At the Closing, LSG shall grant, sell, convey, assign, transfer and
deliver to Sky Chefs, and Sky Chefs shall purchase from LSG, upon and subject to
the terms and conditions of this Agreement, each in reliance on the
representations, warranties and covenants of the other party contained herein,
all right, title and interest of LSG in the following Assets, free and clear of
all encumbrances, liens, or other restrictions on transfer (other than those
caused or incurred by Sky Chefs after January 12, 1995):
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1. all machinery, equipment tools, furniture, furnishings,
leasehold improvements, goods, other tangible personal
property including, without limitation, the items set forth on
Schedule 2.1 attached hereto;
2. all supplies and inventories at or ordered for delivery to the
Kitchens;
3. to the extent permitted by applicable law or the terms of
relevant instruments, all rights under any instrument,
registration, license, certificate of occupancy, other permit
or approval of any nature, or other similar document,
commitment, arrangement, undertaking, practice or
authorization relating to the Kitchens; and
4. all rights to any insurance recovery or right to recovery
arising from any loss or damage to any assets referred to in
clause (a), (b) or (c) of this section.
(b) Sky Chefs hereby acknowledges that all the Assets are being
conveyed on an "as is - where is" basis and LSG makes no representation or
warranty as to the condition of the Assets.
2.2 CUSTOMER CONTRACTS
LSG shall transfer to Sky Chefs all of the Customer Contracts at the
Kitchens as set forth on Schedule 2.2 and such transfers shall take effect the
date of the Closing. Notwithstanding the preceding sentence, any Customer
Contracts which, by their terms, require the consent of the relevant customer in
order to be transferred to Sky Chefs, and for which such consent has not been
received as of the date of the Closing, shall be transferred to Sky Chefs as
soon as such consent can practically be obtained following the Closing.
Receivables due under Customer Contracts for services provided from the Kitchens
prior to the Closing shall remain the property of LSG.
2.3 PURCHASE PRICE
The purchase price being paid by Sky Chefs to LSG simultaneously with
the execution of this Agreement for all of LSG's business and Assets in the
Kitchens is U.S. $3,165,000.
2.4 ASSUMPTION OF LIABILITIES
(a) Except as provided in Article 2.4(b), Sky Chefs shall assume all
liabilities and obligations associated with the Kitchens and the Assets arising
after the date of the Closing. Sky Chefs shall not assume any liabilities or
obligations of LSG
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related to the operation of the Kitchens or the Assets arising on or prior to
the date of the Closing.
(b) LSG and Sky Chefs hereby acknowledge that any liability with
respect to the MIA Asbestos Liability shall not be assumed by Sky Chefs pursuant
to this Agreement.
ARTICLE 3
TERMINATION OF LEASES AND CONTRACTS
3.1 MANAGEMENT SERVICES AGREEMENT
At or prior to the Closing, the Management Services Agreement between
LSG and Sky Chefs, attached hereto as Schedule 3.1 (a), shall be terminated
pursuant to the termination letter attached hereto as Schedule 3.1 (b). LSG
represents and warrants that it has paid all amounts due and to Sky Chefs under
the Management Services Agreement through November 30, 1995. Notwithstanding the
foregoing, LSG hereby agrees to make the final payment of the service fee under
Section 4.1 of the Management Services Agreement in accordance with the terms
thereof.
3.2 TERMINATION OF LSG-CATERAIR AGREEMENTS
Prior to the Closing, Caterair and LSG shall have entered into a
Termination Agreement (the "Termination Agreement"), attached hereto as Schedule
3.2, terminating any and all agreements between LSG and Caterair relating to the
Kitchens (with such exceptions as provided herein or therein). Pursuant to the
Termination Agreement, the following agreements shall be terminated:
1. the Kitchen Lease Agreements; and
2. the Equipment Lease Agreement.
LSG (i) represents and warrants that it has paid all amounts due and
owing to Caterair under the Kitchen Lease Agreements and the Equipment Lease
Agreement through November 30, 1995, and (ii) hereby agrees to pay to Caterair
any amounts as contemplated by the second sentence of Section 2 of the
Termination Agreement.
3.3 TERMINATION OF PHH FLEET AMERICA LEASE AGREEMENT
At or prior to the Closing, the PHH Fleet America Lease Agreement
shall be terminated as between LSG and Caterair pursuant to the Agreement of
Termination, attached hereto as Schedule 3.3(a). As soon as is practicable
following the
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Closing, the PHH Fleet America Lease Agreement shall be assigned by LSG to
Caterair, pursuant to a Lease Assumption Agreement, in substantially the form
attached hereto as Schedule 3.3(b). LSG hereby represents and acknowledges that
it has paid to PHH all amounts due and owing to PHH under the PHH Fleet America
Lease Agreement through November 30, 1995.
ARTICLE 4
CLOSING
4.1 CLOSING
The Closing of the transactions contemplated herein shall take place at
Xxxxxx, Xxxxxx & Xxxxxxxxx on November 30, 1995, or such other date as may be
mutually agreed upon in writing by LSG and Sky Chefs.
4.2 DELIVERY OBLIGATIONS OF LSG
At the Closing, LSG shall deliver:
(a) documents evidencing transfer to Sky Chefs of all Assets at
the Kitchens including, without limitation, all of the
supplies and inventories at the Kitchens and any recovery
right referred to in Section 2.1(a)(4);
(b) documents executed by it evidencing the termination of the
Management Services Agreement;
(c) documents executed by it evidencing the termination of the
Kitchen Lease Agreements;
(d) documents executed by it evidencing the termination of the
Equipment Lease Agreement;
(e) documents executed by it evidencing the termination of the PHH
Fleet America Lease Agreement as between LSG and Caterair;
(f) documents executed by it acknowledging receipt of the purchase
price; and
(g) to the extent required, documents evidencing consent of the
customers party to the contracts identified on Schedule 2.2.
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4.3 DELIVERY OBLIGATIONS OF SKY CHEFS
At the Closing, Sky Chefs shall deliver:
(a) the purchase price as set forth in Article 2.2 in immediately
available funds;
(b) documents executed by it evidencing the termination of the
Management Services Agreement; and
(c) documents executed by it acknowledging receipt by Sky Chefs of
all Assets and the transfer of certain Customer Contracts.
ARTICLE 5
REPRESENTATIONS, WARRANTIES, AND COVENANTS
5.1 REPRESENTATIONS, WARRANTIES, AND COVENANTS OF LSG. LSG represents,
warrants, and covenants to Sky Chefs, with respect to the transactions
contemplated herein, that:
(a) Organization and Authority of LSG. LSG is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware and has the corporate power and
authority to enter into and perform this Agreement and the
transactions herein contemplated.
(b) Authorization of Agreement. The execution, delivery and
performance by LSG of this Agreement have been duly authorized
by all requisite corporate action. This Agreement has been
duly executed and delivered by LSG and constitutes and will
constitute a legal, valid and binding obligation of LSG
enforceable against LSG in accordance with its terms, except
as may be limited by bankruptcy or similar laws affecting
creditors rights generally.
(c) No Conflicts. The execution, delivery and performance of this
Agreement by LSG do not violate or conflict with (i) the
certificate of incorporation or by-laws of LSG or (ii) any
judicial, administrative or regulatory order, judgment or
decree or arbitration award to which LSG is a party or by
which it or its properties are bound.
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(d) Assets. The Assets to be sold, transferred, or assigned to Sky
Chefs include all of the assets of LSG used at, or in the
operation of, the Kitchens.
(e) No Liens. Upon consummation of the transactions contemplated
by this Agreement and payment of the purchase price by Sky
Chefs to LSG, Sky Chefs shall acquire good and valid title to
all of the Assets free and clear of all liens, encumbrances
and other restrictions on transfer (other than those caused or
incurred by Sky Chefs after January 12, 1995).
5.2 REPRESENTATIONS, WARRANTIES, AND COVENANTS OF SKY CHEFS. Sky Chefs
represents, warrants, and covenants to LSG, with respect to the transactions
contemplated herein, that:
(a) Organization and Authority. Sky Chefs is a corporation duly
organized and is validly existing and in good standing under
the laws of the State of Delaware and has the corporate power
and authority to enter into and perform this Agreement and the
transactions herein contemplated.
(b) Authorization of Agreement. The execution, delivery and
performance by Sky Chefs of this Agreement have been duly
authorized by all requisite corporate action. This Agreement
has been duly executed and delivered by Sky Chefs and
constitutes and will constitute the legal, valid and binding
obligation of Sky Chefs, enforceable against it in accordance
with its terms, except as may be limited by bankruptcy or
similar laws affecting creditors' rights generally.
(c) No Conflicts, The execution, delivery and performance of this
Agreement by Sky Chefs do not violate or conflict with (i) the
certificate of incorporation or by-laws of Sky Chefs or (ii)
any judicial, administrative or regulatory order, judgment or
decree or arbitration award to which Sky Chefs is a party or
by which it or its properties are bound.
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ARTICLE 6
EMPLOYEE MATTERS
6.1 EMPLOYMENT
(a) LSG hereby acknowledges and agrees that, after the date of the
Closing, Sky Chefs shall be entitled to employ any and all of the employees of
LSG who are currently employed by LSG at the Kitchens. Sky Chefs shall be
entitled to set such terms and conditions of employment with respect to
post-Closing operations at the Kitchens as Sky Chefs deems appropriate under the
circumstances (including any modifications, reductions or alterations of any
previous terms and conditions of employment).
(b) LSG, as employer, and Sky Chefs, as the manager of the Kitchens
pursuant to the Management Services Agreement, has notified or will notify all
LSG employees at the Kitchens that their employment with LSG will cease
effective the Closing. Sky Chefs has notified or will notify all employees at
the Kitchens that they will be hired as employees by Sky Chefs, subject to such
qualifications and terms and conditions of employment as Sky Chefs may adopt,
effective immediately after the Closing. LSG and Sky Chefs have taken any and
all steps necessary to ensure the parties' compliance with any laws involving
notification of employees regarding this transaction. For purposes of this
Article, "all LSG employees" shall include persons on approved leave or
disability who remain employees of LSG.
6.2 COOPERATION IN LABOR MATTERS
After the date of the Closing, LSG, at its cost, shall provide Sky
Chefs with such information as it may reasonably request regarding LSG employees
and the terms and conditions of employment of LSG employees.
6.3 CONTINUATION HEALTH COVERAGE
Sky Chefs will assume any obligations LSG may have to offer
continuation health coverage to current or former LSG employees and their
beneficiaries at the employees' own costs and as required by COBRA or applicable
laws.
6.4 WITHDRAWAL FROM SKY CHEFS' PLANS
Sky Chefs will prepare all necessary documents and take all necessary
steps, with LSG's cooperation, to remove LSG as a participating employer in Sky
Chefs's employee pension and welfare benefit plans ("HERE plans") maintained
pursuant to the contract with the Hotel Employees and Restaurant Employees
International Union, AFL-CIO ("HERE"). Sky Chefs will make all necessary filings
with the Federal government with regard to the
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creation, operation, and unwinding of the arrangements described in the
preceding sentence, including any Form 5500s. Sky Chefs will assume any and all
liabilities relating to or arising under the operation of the HERE plans, as
they now exist or may be amended in the future, except for contributions
attributable to LSG's employees' participation in such plans from April 1, 1995,
through November 30, 1995 and except as otherwise specified in this Article,
including, specifically, any obligations with respect to retiree medical and
retiree life insurance coverage.
6.5 PENSION PLAN
LSG agrees that it will pay the Retirement Benefit Plan of Sky Chefs,
Inc. for employees represented by HERE (the "Pension Plan") that sum determined
by Xxxxxx Associates, as actuary for the Pension Plan, as representing the
normal cost for employees of LSG at the SFO and XXX Xxxxxxxx participating in
the Pension Plan with respect to the period from April 1, 1995 to and including
November 30, 1995, under the Pension Plan's normal actuarial methods and
assumptions, using the valuation to be prepared as of January 1, 1996. LSG shall
have no obligation to make this payment unless the actuary certifies that the
payment is presently deductible.
6.6 LSG 401(k) PLANS
Sky Chefs agrees to assume sponsorship of the LSG Lufthansa Service USA
Corporation Money$mart 401(k) Savings and Retirement Plan and of the LSG
Lufthansa Service USA Corporation Retirement Savings & Investment Plan, each
effective as of December 1, 1995, and LSG shall withdraw from sponsorship as of
that same date subject to such changes that Sky Chefs may implement subsequent
to Closing. LSG will make all contributions to both plans for the period ending
November 30, 1995 on or before the due dates specified by the plans.
ARTICLE 7
INDEMNIFICATION
7.1 GENERAL INDEMNIFICATION BY LSG
LSG shall indemnify and hold harmless Sky Chefs, Sky Chefs' affiliates,
and each of their respective officers, directors, employees and agents, from,
and shall reimburse Sky Chefs, Sky Chefs' affiliates, and each of their
respective officers, directors, employees and agents, for all losses,
liabilities, deficiencies, penalties, claims, damages or expenses (including,
but not limited to, costs of investigation and defense and reasonable attorneys'
fees) (collectively, "Damages") arising out of or in connection with:
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(a) any material inaccuracy in any representation or warranty by
LSG set forth in this Agreement;
(b) any material failure by LSG to perform or comply with any
agreement contained in this Agreement;
(c) any claim by any person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or
understanding alleged to have been made by any such person
with LSG (or any person acting on its behalf) in connection
with any of the transactions contemplated hereby;
(d) (i) any action taken (or not taken) by LSG on or prior to
the date of the Closing relating to the Assets or the
Kitchens, including, without limitation, relating to
any claim by an employee regarding any compensation
or terms and conditions of employment (other than
claims involving LSG and arising on or after January
12, 1995 solely as a result of action taken (or not
taken) by Sky Chefs in connection with its services
under the Management Services Agreement ("Sky Chefs
Management Services Claims"));
(ii) any claim or liability relating to the Kitchens or
the Assets arising on or prior to the date of the
Closing (excluding Sky Chefs Management Services
Claims);
(e) the use and occupancy of the Kitchens and the Assets or the
conduct of the business on the premises of the Kitchens,
including, without limitation, any act or omission by LSG, its
agents, contractors, employees, servants, lessees,
concessionaires, invitees and customers arising on or prior to
the date of Closing (other than Sky Chefs Management Services
Claims).
The foregoing indemnification shall apply whether or not such
liabilities and costs are in any way or to any extent caused, in whole or in
part, by any act or omission of any kind by Sky Chefs, provided only that Sky
Chefs shall not be entitled under this Article to receive indemnification for
that portion, if any, of any liabilities and costs which is proximately caused
by its own individual gross negligence or willful misconduct, as determined in a
final judgment. If any person (including LSG or any of its affiliates) alleges
such gross negligence or willful misconduct by Sky Chefs, the indemnification
provided for herein shall nonetheless be paid upon demand, subject to later
adjustment or reimbursement, until such time as a court of
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competent jurisdiction enters a final judgment as to the extent and effect of
the gross negligence or willful misconduct.
The foregoing indemnities shall be perpetual. Any amount to be paid
hereunder by LSG to any person or for which LSG has indemnified any person shall
be a demand obligation owing by LSG to Sky Chefs.
7.2 GENERAL INDEMNIFICATION BY SKY CHEFS
Sky Chefs shall indemnify and hold harmless LSG, LSG's affiliates and
each of their respective officers, directors, employees and agents from, and
shall reimburse LSG, LSG's affiliates and each of their respective officers,
directors, employees and agents for any Damages arising from or in connection
with:
(a) any material inaccuracy in any representation or warranty by
Sky Chefs set forth in this Agreement;
(b) any material failure by Sky Chefs to perform or comply with
any agreement contained in this Agreement;
(c) any claim by any person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or
understanding alleged to have been made by such person with
Sky Chefs (or any person acting on its behalf) in connection
with any of the transactions contemplated hereby;
(d) any action taken (or not taken) by Sky Chefs after the date of
the Closing of this Agreement with respect to the Kitchens
including claims arising from the HERE collective bargaining
agreement;
(e) any claim brought against LSG by Caterair relating to the
Kitchens which claim arose due to any action taken (or not
taken) after January 12, 1995;
(f) Sky Chefs Management Services Claims; and
(g) any claim brought against LSG by HERE under its Master
National Agreement with Sky Chefs and arising solely as a
result of the execution of this Agreement and the performance
of the transactions contemplated herein, including, without
limitation, any claim by HERE regarding any bargaining
obligation addressing the effects of the transactions
contemplated herein.
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The foregoing indemnification shall apply whether or not such
liabilities and costs are in any way or to any extent caused, in whole or in
part, by any act or omission of any kind by LSG, provided only that LSG shall
not be entitled under this Article to receive indemnification for that portion,
if any, of any liabilities and costs which is proximately caused by its own
individual gross negligence or willful misconduct, as determined in a final
judgment. If any person (including Sky Chefs or any of its affiliates) alleges
such gross negligence or willful misconduct by LSG, the indemnification provided
for herein shall nonetheless be paid upon demand, subject to later adjustment or
reimbursement, until such time as a court of competent jurisdiction enters a
final judgment as to the extent and effect of the gross negligence or willful
misconduct.
The foregoing indemnities shall be perpetual. Any amount to be paid
hereunder by Sky Chefs to any person or for which Sky Chefs has indemnified any
person shall be a demand obligation owing by Sky Chefs to LSG.
7.3 PROCEDURE FOR INDEMNIFICATION
The obligations and liabilities of each party hereunder with respect to
their respective indemnities resulting from any claim or other assertion of
liability by third parties (hereinafter a "Claim"), shall be subject to the
following terms and conditions:
(a) The party seeking indemnification (the "Indemnified Party")
must give the other party or parties, as the case may be (the
"Indemnifying Party"), notice of any such Claim promptly after
the Indemnified Party receives notice hereof.
(b) The Indemnifying Party shall have the right to undertake, by
counsel or other representatives of its own choosing, the
defense of such Claim and may settle such Claim at the sole
expense of the Indemnifying Party.
(c) In the event that the Indemnifying Party shall elect not to
undertake such defense, or within a reasonable time after
notice of any such Claim from the Indemnified Party shall fail
to defend, the Indemnified Party (upon further written notice
to the Indemnifying Party) shall have the right to undertake
the defense, compromise or settlement of such Claim, by
counsel of its own choosing, on behalf of and for the account
and risk of the Indemnifying Party (subject to the right of
the Indemnifying Party to assume defense of such Claim
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at any time prior to settlement, compromise or final
determination thereof).
7.4 EXCLUSIVITY
This Article 7 provides the exclusive means by which a Party may assert
claims for indemnification against another Party with respect to the
transactions contemplated by this Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties
with respect to the subjects covered herein, and supersedes all prior oral or
written agreements, commitments or understandings with respect to the matters
provided herein.
8.2 GUARANTEE
LSG Lufthansa Service GmbH hereby guarantees the full and timely
performance by LSG under this Agreement. This guarantee is an independent
obligation that may be enforced against LSG Lufthansa Service GmbH before,
after, or without enforcement of LSG's obligations under this Agreement and
shall be enforceable notwithstanding any amendment of, or forbearance under,
this Agreement or any other event (other than the full and timely performance by
LSG) that would discharge the obligations of a surety or guarantor.
8.3 ARBITRATION
Any dispute, controversy or claim arising out of or relating to this
Agreement or breach hereof, shall be conducted in accordance with UNCITRAL
Rules. The arbitration shall be conducted in London in the English language
before a sole arbitrator. The parties shall attempt, by agreement, to nominate
the sole arbitrator. If the parties fail so to nominate a sole arbitrator within
30 days from the date when the claimant's request for arbitration has been
communicated to the other party, the appointing authority shall be the London
Court of International Arbitration acting in accordance with its rules for this
purpose.
8.4 GOVERNING LAW
This Agreement is subject to, and shall be construed in accordance
with, the laws of the State of Delaware.
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8.5 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
8.6 EXCLUSIVE BENEFICIARIES
This Agreement is intended for the exclusive benefit of the parties
hereto and their respective successors and permitted assigns. Nothing contained
herein shall be construed as granting any rights or benefits in or to any third
party, including current and former employees of LSG.
8.7 FURTHER ASSURANCES
On or after the date of the Closing, LSG and Sky Chefs hereby agree to
promptly execute, acknowledge and deliver any other assurances or documents and
take any other action reasonably requested by the other party hereto to effect
the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this
Acquisition Agreement to be executed by their officers or other representatives
duly authorized, as of the day first above written.
Sky Chefs, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title:
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LSG Lufthansa Service USA Corporation
By: /s/ Authorized Signatory
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Title:
---------------------------
By: /s/ Xxxxxx Xxxxx
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Title: Treasurer
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LSG Lufthansa Service GmbH (as to
Article 8.2 only)
By: /s/ Authorized Signatory
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Title:
---------------------------
By: /s/ Xxxxxx Xxxxx
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Title: Vice President
----------------------------
