1
EXHIBIT 10.1
SC INTERNATIONAL SERVICES, INC.
$300,000,000 9 1/4% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
August 22, 1997
BT Securities Corporation
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Sachs & Co.
Xxxxx Xxxxxx Inc.
Bankers Trust International PLC
c/o BT Securities Corporation
One Bankers Trust Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
SC International Services, Inc., a Delaware corporation (the
"Issuer"), Sky Chefs, Inc., a Delaware corporation ("Sky Chefs"), Caterair
International, Inc. (II), a Delaware corporation ("CII"), each of the other
wholly owned domestic subsidiaries of the Issuer identified on the signature
pages hereof (the "Additional Guarantors") and Caterair International
Corporation, a Delaware corporation ("Caterair"), hereby confirm their agreement
with you (the "Initial Purchasers"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Issuer proposes to issue and sell to the Initial Purchasers
$300,000,000 aggregate principal amount of its 9 1/4% Senior Subordinated Notes
due 2007 (the "Notes"). The Notes will be unconditionally guaranteed (the
"Guarantees") on a joint and several basis by each of Sky Chefs, CII, the
Additional Guarantors and Caterair (collectively, the "Guarantors"). The Notes
and the related Guarantees will be issued pursuant to an Indenture (the
"Indenture") by and among the Issuer, the Guarantors and The Bank of New York,
as trustee (the "Trustee"). The Notes and the related Guarantees are hereinafter
referred to collectively as the "Securities."
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The Securities are being issued and sold in connection with the
repayment and retirement of the Issuer's and Caterair's term loan indebtedness
under the Credit Agreement, dated as of September 29, 1995, among the Issuer,
Caterair, Caterair Holdings, Onex Food Services, Inc. and the lenders named
therein (the "Existing Credit Agreement"). The financing will consist of a
senior secured revolving credit agreement among the Issuer, certain other
parties and certain lenders (the "SCIS Credit Agreement") and a senior secured
credit agreement among Caterair, the Issuer, certain other parties and certain
lenders (the "Caterair Credit Agreement," and together with the SCIS Credit
Agreement, the "Senior Bank Financing").
The Securities will be offered and sold to you without being
registered under the Securities Act of 1933, as amended (the "Act"), in reliance
on exemptions therefrom.
In connection with the sale of the Securities, the Issuer has
prepared a preliminary offering memorandum, dated August 7, 1997 (the
"Preliminary Memorandum"), and a final offering memorandum, dated August 22,
1997 (the "Final Memorandum," the Preliminary Memorandum and the Final
Memorandum each herein being referred to as a "Memorandum"), setting forth or
including a description of the terms of the Securities, the terms of the
offering of the Securities, a description of the Issuer and any material
developments relating to the Issuer occurring after the date of the most recent
historical financial statements included therein.
The Issuer and the Guarantors understand that the Initial Purchasers
propose to make an offering of the Securities only on the terms and in the
manner set forth in the Final Memorandum and Section 8 hereof as soon as the
Initial Purchasers deem advisable after this Agreement has been executed and
delivered, to persons in the United States whom the Initial Purchasers
reasonably believe to be qualified institutional buyers ("Qualified
Institutional Buyers" or "QIBs") as defined in Rule 144A under the Act, as such
rule may be amended from time to time ("Rule 144A"), in transactions under Rule
144A, and outside the United States to certain persons in reliance on Regulation
S under the Act.
The Initial Purchasers and their direct and indirect transferees of
the Securities will be entitled to the benefits of the Registration Rights
Agreement (the "Registration Rights Agreement"), pursuant to which the Issuer
and the Guarantors have agreed, among other things, to file a registration
statement (the "Registration Statement") with the Securities and Ex-
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change Commission (the "Commission") registering the Exchange Notes (as defined
in the Registration Rights Agreement) under the Act. Sky Chefs, CII and the
Additional Guarantors are hereinafter referred to collectively as the
"Subsidiary Guarantors." The Purchase Agreement (this "Agreement"), the Notes,
the Guarantees, the Exchange Notes, the Indenture and the Registration Rights
Agreement are hereinafter referred to collectively as the "Operative Documents."
2. Representations and Warranties. The Issuer and the Guarantors,
jointly and severally, represent and warrant to and agree with each of the
Initial Purchasers that:
(a) Neither the Preliminary Memorandum as of the date thereof
nor the Final Memorandum nor any amendment or supplement thereto as of
the date thereof and at all times subsequent thereto up to the Closing
Date (as defined in Section 3 below) contained or contains any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this Section 2(a) do
not apply to statements or omissions made in reliance upon and in
conformity with information relating to any of the Initial Purchasers
furnished to the Issuer in writing by the Initial Purchasers expressly
for use in the Preliminary Memorandum, the Final Memorandum or any
amendment or supplement thereto.
(b) Each of the Issuer and its subsidiaries set forth under
the caption "Subsidiaries" on Schedule A hereto (the "Issuer
Subsidiaries") and each of Caterair and its subsidiaries set forth
under the caption "Subsidiaries" on Schedule A hereto (the "Caterair
Subsidiaries" and collectively with the Issuer Subsidiaries, the
"Subsidiaries" and each, a "Subsidiary") has been duly incorporated and
is validly existing in good standing as a corporation under the laws of
its jurisdiction of incorporation, with all requisite corporate power
and authority to own or lease its properties and conduct its businesses
as now conducted as described in the Final Memorandum, and is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions where the ownership or leasing of its
properties or the conduct of its businesses requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the business, condition (financial or
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other) or results of operations of the Issuer, Caterair and the
Subsidiaries, taken as a whole (any such event, a "Material Adverse
Effect"); the Issuer and Caterair, respectively, had, as of June 30,
1997, the capitalization set forth under the caption "Historical" of
the Capitalization section of the Final Memorandum, and immediately
after the Closing Date will have the capitalization set forth under the
caption "Pro Forma" of the Capitalization section of the Final
Memorandum; none of the Issuer, Caterair or any of the Subsidiaries
owns, directly or indirectly, any of the capital stock or other equity
securities of any other person other than those persons set forth under
the caption "Joint Ventures" on Schedule A (the "Joint Ventures");
except as to the Joint Ventures, with respect to the Issuer, neither
the Issuer nor Caterair owns, directly or indirectly any capital stock
or other equity securities of any other person other than those persons
set forth under the caption "Subsidiaries" on Schedule A; the
outstanding shares of capital stock of the Issuer, Caterair and each of
the Subsidiaries and, to the knowledge of the Issuer, the Joint
Ventures have been duly authorized and validly issued, are fully paid
and nonassessable and were not issued in violation of any preemptive or
similar rights granted by such person; except as described in the Final
Memorandum or disclosed on Schedule A hereto, all of the outstanding
shares of capital stock of each of the Subsidiaries and, to the
knowledge of the Issuer, the Joint Ventures are owned beneficially by
the Issuer, Caterair or a Subsidiary, free and clear of all liens,
encumbrances, security interests, mortgages, pledges, charges or claims
other than those under the Existing Credit Agreement or the Senior Bank
Financing or with respect to certain foreign Subsidiaries, that are not
directly or indirectly wholly-owned Subsidiaries of the Issuer,
restrictions on transfer and other liens contained in their respective
organizational documents; and except as described in the Final
Memorandum, there are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, any
capital stock or other equity interest in the Issuer, Caterair or any
of the Issuer Subsidiaries.
(c) Each of the Issuer, Caterair and the Subsidiary Guarantors
has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has been
duly authorized, executed and delivered by the Issuer, Caterair and
each of the Subsidiary Guarantors.
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(d) Each of the Issuer, Caterair and the Guarantors has all
requisite corporate power and authority to execute, deliver and perform
its obligations under the Indenture, the Notes, the Exchange Notes, the
Private Exchange Notes and the Guarantees of Caterair and the
Subsidiary Guarantors. The Indenture meets the requirements for
qualification under the Trust Indenture Act of 1939, as amended (the
"TIA"). The Indenture has been duly authorized by the Issuer, Caterair
and each of the Subsidiary Guarantors and, when executed and delivered
by the Issuer, Caterair and each of the Subsidiary Guarantors (assuming
the due authorization, execution and delivery thereof by the Trustee),
will constitute a valid and legally binding agreement of the Issuer,
Caterair and each of the Subsidiary Guarantors, enforceable against
each of them in accordance with its terms, subject to (x) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (y) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding
at law or in equity) and except that a waiver of rights under any usury
laws may be unenforceable.
(e) The Notes, the Exchange Notes and the Private Exchange
Notes (as defined in the Registration Rights Agreement) have each been
duly and validly authorized by the Issuer and, when executed by the
Issuer and authenticated by the Trustee in accordance with the
provisions of the Indenture, and, in the case of the Notes, when
delivered to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, will have been duly executed, issued and
delivered and will constitute valid and legally binding obligations of
the Issuer, entitled to the benefits of the Indenture and enforceable
against the Issuer in accordance with their terms, subject to (x)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (y) general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a
proceeding at law or in equity) and except that a waiver of rights
under any usury laws may be unenforceable.
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(f) The Guarantees of Caterair and the Subsidiary Guarantors
endorsed on the Notes have been duly authorized by each of Caterair and
the Subsidiary Guarantors and, when executed and delivered by Caterair
and each of the Subsidiary Guarantors, will, upon the execution,
authentication and delivery of the Notes and payment therefor, be valid
and binding obligations of each of Caterair and the Subsidiary
Guarantors, enforceable against Caterair and such Subsidiary Guarantors
in accordance with their terms, subject to (x) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(y) general principles of equity and the discretion of the court before
which any proceeding therefor may be brought (regardless of whether
such enforcement is considered in a proceeding at law or in equity) and
except that a waiver of rights under any usury laws may be
unenforceable.
(g) Each of the Issuer, Caterair and the Subsidiary Guarantors
has all requisite corporate power and authority to execute, deliver and
perform its obligations under the Registration Rights Agreement. The
Registration Rights Agreement has been duly and validly authorized by
each of the Issuer, Caterair and the Subsidiary Guarantors and, when
executed and delivered by the Issuer, Caterair and each of the
Subsidiary Guarantors (assuming due authorization, execution and
delivery by the other parties thereto), will have been duly executed
and delivered and will constitute valid and legally binding agreement
of each of the Issuer, Caterair and the Subsidiary Guarantors,
enforceable against each of them in accordance with its terms, (A)
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding
therefor may be brought (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and (B) except that any
rights to indemnity or contribution thereunder may be limited by
federal and state securities laws and public policy considerations.
(h) Except as described in the Final Memorandum, no consent,
approval, authorization or order of any court or governmental agency or
body is required for the performance of this Agreement by the Issuer,
Caterair and the Subsidiary Guarantors or the consummation by them of
the
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other transactions contemplated under any of the Operative Documents,
except (i) such as have been obtained, (ii) such as may be required
under the Act, the TIA or state securities or "Blue Sky" laws in
connection with the transactions contemplated by the Registration
Rights Agreement, (iii) such as may be required under "Blue Sky" laws
in connection with the transactions contemplated by this Agreement or
(iv) where the failure to obtain any such consent, approval,
authorization or order would not have a Material Adverse Effect. None
of the Issuer, Caterair or any Subsidiary is (A) in violation of its
certificate of incorporation, bylaws or any other organizational
documents, except for violations with respect to foreign Subsidiaries
which, in the aggregate, would not have a Material Adverse Effect, (B)
in violation of any statute, judgment, decree, order, rule or
regulation applicable to the Issuer, Caterair or any Subsidiary, which
violation would have a Material Adverse Effect, or (C) in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease, license, franchise agreement,
permit, certificate or other agreement or instrument to which the
Issuer, Caterair or any Subsidiary is a party or to which any of them
or their respective properties is subject, which default would have a
Material Adverse Effect.
(i) The execution, delivery and performance by the Issuer,
Caterair and each of the Subsidiary Guarantors of this Agreement, the
Notes, the Exchange Notes, the Private Exchange Notes, the Registration
Rights Agreement, the Guarantees of Caterair and the Subsidiary
Guarantors, the Indenture, and the consummation by the Issuer, Caterair
and each of the Subsidiary Guarantors of the transactions contemplated
hereby and thereby will not (after giving effect to all amendments or
waivers obtained on or prior to the Closing Date) conflict with or
constitute or result in a breach or violation by the Issuer, Caterair
or any Subsidiary of (A) any of the terms or provisions of, or
constitute a default by the Issuer, Caterair or any Subsidiary under,
any indenture, mortgage, deed of trust, loan agreement, note, lease,
license, franchise agreement, or other agreement or instrument to which
any such person is a party or to which any of them or their respective
properties is subject, which conflict, breach, violation or default
would have a Material Adverse Effect, (B) the certificate of
incorporation, bylaws or any other organizational documents of any such
person, except for violations
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with respect to foreign Subsidiaries which, in the aggregate, would not
have a Material Adverse Effect, or (C) any statute, judgment, decree,
order, rule or regulation (excluding state securities and "Blue Sky"
laws) of any court or governmental agency or other body applicable to
any such person, or any of their respective properties, which conflict,
breach, violation or default would have a Material Adverse Effect.
(j) To the best knowledge of the Issuer and the Guarantors,
each of the Issuer, Caterair and the Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made or will have made all declarations
and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals necessary to own or lease, as the case may be, and to operate
its properties and to conduct its business as now conducted
("Permits"), except where the failure to have or obtain such Permits
would not, individually or in the aggregate, have a Material Adverse
Effect; to the best knowledge of the Issuer and the Guarantors, each of
the Issuer, Caterair and the Subsidiaries has fulfilled and performed
in all material respects its obligations with respect to such Permits
and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any
other material impairment of the rights of the holder of any such
Permit; and to the best knowledge of the Issuer and the Guarantors,
none of the Issuer, Caterair or any Subsidiary has received any notice
in writing of any proceeding relating to revocation or modification of
any material Permit, except as described in the Final Memorandum or
except where such revocation or modification would not, individually or
in the aggregate, have a Material Adverse Effect.
(k) Each of the Notes, the Exchange Notes, the Guarantees, the
Indenture, the Registration Rights Agreement and this Agreement each
conform in all material respects to the respective description thereof
in the Final Memorandum.
(l) Except as would not, individually or in the aggregate,
have a Material Adverse Effect, (A) each of the Issuer, Caterair and
the Subsidiaries is in compliance with and not subject to liability
under any applicable Environmental Laws, (B) to the best knowledge of
the Issuer
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and the Guarantor, each of the Issuer and the Guarantors has made all
material filings and provided all material notices required under any
applicable Environmental Laws, and has and is in compliance with all
permits, licenses, authorizations and approvals in all material
respects required under any applicable Environmental Laws and each of
them is in full force and effect in all material respects, (C) there is
no civil, criminal or administrative action, suit, demand, claim,
hearing, notice of violation, investigation, proceeding, notice or
demand letter or request for information pending or, to the best
knowledge of the Issuer, Caterair or any of the Subsidiary Guarantors,
threatened in writing against the Issuer, Caterair or any of the
Subsidiaries under any Environmental Law, (D) no lien has been recorded
under any Environmental Law with respect to any assets, facility or
property owned, operated, leased or controlled by the Issuer, Caterair
or any of the Subsidiaries, (E) none of the Issuer nor any of the
Subsidiaries has received notice in writing that it has been identified
as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") or any comparable state law, (F) no property or
facility of the Issuer, Caterair or any of the Subsidiaries is (i)
listed or proposed for listing on the National Priorities List under
CERCLA or (ii) listed in the Comprehensive Environmental Response,
Compensation, Liability Information System List promulgated pursuant to
CERCLA, or on any comparable list maintained by any state or local
governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, relating to pollution or
protection of public or employee health and safety from environmental
effects or protection of the environment, including, without
limitation, laws relating to (A) emissions, discharges, releases or
threatened releases of hazardous materials, into the environment
(including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), (B) the manufacture,
processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and (C)
underground and above ground storage tanks, and related piping, and
emissions, discharges, releases or threatened releases therefrom.
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(m) The audited consolidated financial statements and
schedules of the Issuer and Caterair, respectively, included in the
Final Memorandum present fairly the consolidated financial position,
results of operations and cash flows of the Issuer and Caterair,
respectively, at the dates and for the periods to which they relate,
and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis, except as otherwise stated
therein, and the unaudited consolidated financial statements of the
Issuer and Caterair, respectively, and the related notes included in
the Final Memorandum, if any, present fairly the consolidated financial
position, results of operations and cash flows of the Issuer and
Caterair, respectively, at the dates and for the periods to which they
relate, subject to year-end audit adjustments and the omission of
notes, and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, except as
otherwise stated therein.
The pro forma financial information (including the notes
thereto) included in the Final Memorandum (A) present fairly in all
material respects the information shown therein, (B) have been prepared
in accordance with the applicable requirements of Rule 11-02 of
Regulation S-X promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the Commission's published rules
and guidelines with respect to pro forma financial statements and (C)
have been properly computed on the bases described therein. The
assumptions used in the preparation of the pro forma financial
statements and other pro forma financial information included in the
Final Memorandum are reasonable and the adjustments used therein are
appropriate to give effect to the transactions, combinations or
circumstances referred to therein.
Coopers & Xxxxxxx LLP, which has audited certain of such
financial statements and schedules as set forth in their reports
included in the Final Memorandum, is an independent public accounting
firm as required by the Act.
Xxxxxx Xxxxxxxx LLP, which has audited certain of such
financial statements and schedules as set forth in their reports
included in the Final Memorandum, is an independent public accounting
firm as required by the Act.
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(n) Except as described in the Final Memorandum, there is not
pending or, to the best knowledge of the Issuer, Caterair or any of the
Guarantors, threatened in writing any action, suit, proceeding, inquiry
or investigation to which the Issuer, Caterair or any of the
Subsidiaries, or to which the property of the Issuer, Caterair or any
of the Subsidiaries, is subject, before or brought by any court or
governmental agency or body, that, in the aggregate, would have a
Material Adverse Effect.
(o) Each of the Issuer, Caterair and the Subsidiaries has, and
immediately after the Closing Date will have (A) good and marketable
title to all of the real property and good title to all of the personal
property owned by it or purported to be owned by it, and, as of the
Closing Date, such title will be free and clear of all liens, except
for liens which would be permitted under the Indenture, and (B) a valid
leasehold interest in the real and personal property leased by it, or
purported to be leased by it, except for such liens and defects that,
in the aggregate, would not have a Material Adverse Effect. To the best
knowledge of the Issuer and the Guarantors, each of the Issuer,
Caterair and the Issuer Subsidiaries operates all material real and
personal property leased by it under valid and enforceable leases and
has performed in all material respects the obligations required to be
performed by it with respect to each such lease, except for such leases
and obligations which, in the aggregate, would not have a Material
Adverse Effect. To the best knowledge of the Issuer and the Guarantors,
all tangible assets and properties of the Issuer, Caterair and each of
the Issuer Subsidiaries are in good working order (subject to ordinary
wear and tear) and are adequate for the uses to which they are being
put, except as would not have a Material Adverse Effect.
(p) To the best knowledge of the Issuer and the Guarantors,
each of the Issuer, Caterair and the Issuer Subsidiaries owns, or is
licensed under, and has the right to use, all patents, trademarks,
service marks, trade names, copyrights and know-how (collectively,
"Intellectual Property") used in, or necessary for the conduct of, its
business as currently conducted, except for such ownership or licensing
defects which, singly or in the aggregate, would not have a Material
Adverse
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Effect, and the transactions contemplated hereby will not alter or
impair any such rights, except for such alterations or impairments as
would not have a Material Adverse Effect. To the best knowledge of the
Issuer and the Guarantors, no claims have been asserted in writing by
any person to the use of any such Intellectual Property or challenging
or questioning the validity or effectiveness of any license or
agreement related thereto, except for such claims as would not have a
Material Adverse Effect. To the best knowledge of the Issuer, Caterair
and the Guarantors, there is no valid basis for any such claim and the
use of such Intellectual Property by the Issuer, Caterair and the
Subsidiaries does not infringe on the rights of any person, except for
such claim or infringement which would not have a Material Adverse
Effect.
(q) Subsequent to the respective dates as of which information
is given in the Final Memorandum and except as described therein or
contemplated thereby, (A) neither the Issuer nor Caterair has incurred
any material liabilities or obligations, direct or contingent, or
entered into any material transactions, not in the ordinary course of
business and (B) neither the Issuer nor Caterair has purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock.
(r) Each of the Issuer, Caterair and the Subsidiaries has
filed all material federal, state, local and foreign income and
franchise tax returns, except where the failure to so file such returns
would not have a Material Adverse Effect. All taxes, assessments, fees
and other charges (including, without limitation, withholding taxes,
penalties, and interest) due or claimed to be due from the Issuer,
Caterair or any of the Subsidiaries that are due and payable have been
paid, other than those being contested in good faith or those currently
payable without penalty or interest and for which an adequate reserve
or accrual has been established in accordance with generally accepted
accounting principles, and except where the failure so to pay would not
have, singly or in the aggregate, a Material Adverse Effect. The
Issuer, Caterair and the Guarantors know of no actual or proposed
additional tax assessments for any fiscal period against the Issuer,
Caterair or any of the Subsidiaries that, singly or in the aggregate,
would have a Material Adverse Effect.
(s) There are no legal or governmental proceedings involving
or affecting the Issuer, Caterair or any Subsidiary or any of their
respective properties or assets which would be required to be described
in a prospectus
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pursuant to the Act that are not described in the Final Memorandum, nor
are there any material contracts or other documents which would be
required to be described in a prospectus pursuant to the Act that are
not described in the Final Memorandum.
(t) Except as disclosed in the Final Memorandum, there are,
and immediately following consummation of the transactions contemplated
by this Agreement there will be, no consensual encumbrances or
restrictions on the ability of any subsidiary of the Issuer (A) to pay
dividends or make any other distributions on such subsidiary's capital
stock or to pay any indebtedness owed to the Issuer or any subsidiary
of the Issuer; (B) to make any loans or advances to, or investments in,
the Issuer or any of its other subsidiaries; or (C) to transfer any of
its property or assets to the Issuer or any of its other subsidiaries,
other than encumbrances or restrictions (i) of a type described in the
Final Memorandum, (ii) 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, (iii) arising
pursuant to the Existing Credit Agreement or the Senior Bank Financing,
or (iv) which, in the aggregate, would not have a Material Adverse
Effect. Except as disclosed in the Final Memorandum, there are, and
immediately following consummation of the transactions contemplated by
this Agreement there will be, no consensual encumbrances or
restrictions on the ability of any subsidiary of Caterair (A) to pay
dividends or make other distributions on such subsidiary's capital
stock or to pay any indebtedness owed to Caterair or any subsidiary of
Caterair; (B) to make any loans or advances to, or investments in,
Caterair or any of its other subsidiaries; or (C) to transfer any of
its property or assets to Caterair or any of its other subsidiaries,
other than encumbrances or restrictions (i) of a type described in the
Final Memorandum, (ii) 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, (iii) arising
pursuant the Existing Credit Agreement or the Senior Bank Financing, or
(iv) which, in the aggregate, would not have a Material Adverse Effect.
(u) None of the Issuer, Caterair or any of the Subsidiaries,
nor any agent acting on behalf of any of them, has taken or will take
any action that might cause this Agreement or the issuance or sale of
the Securities to
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violate Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System as in effect on the Closing Date.
(v) None of the Issuer, Caterair or any of the Subsidiaries is
now, or after giving effect to the issuance of the Securities and the
consummation of the transactions contemplated by this Agreement will
be, an "investment company" or "promoter" or "principal underwriter"
for an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder.
(w) None of the Issuer, Caterair or any of the Subsidiaries
has taken, nor will any of them take, directly or indirectly, any
action designed to, or that might be reasonably expected to, cause or
result in stabilization or manipulation of the price of the Securities.
(x) The statistical and market-related data included in the
Final Memorandum are based on or derived from sources which the Issuer
and Caterair believe to be reliable and accurate.
(y) There is no strike, labor dispute, slowdown or work
stoppage with the employees of the Issuer, Caterair or the Subsidiaries
or, to the knowledge of the Issuer, the Joint Ventures, which is
pending or, to the knowledge of the Issuer or Caterair, threatened in
writing, which would have a Material Adverse Effect.
(z) Each of the Issuer, Caterair and the Subsidiaries
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific authorization, (B)
transactions are recorded as necessary to permit preparation of
financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
general or specific authorization and (D) the reported accountability
for assets is compared with existing assets at reasonable intervals.
(aa) None of the Issuer, Caterair or any of the Subsidiaries
nor any of their respective Affiliates (as defined in Rule 501(b) of
Regulation D under the Act) has directly, or through any agent, (i)
sold, offered for sale, solicited offers to buy or otherwise negotiated
in
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respect of any "security" (as defined in the Act) which is or could be
integrated with the sale of the Securities in a manner that would
require the registration under the Act of the Securities or (ii)
engaged in any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Act) in connection with
the offering of the Securities or in any manner involving a public
offering within the meaning of Section 4(2) of the Act.
(bb) Assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 8 hereof, it is not
necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers in the manner contemplated by this
Agreement to register any of the Securities under the Act or to qualify
the Indenture under the TIA.
(cc) No securities of the Issuer, Caterair or any Subsidiary
Guarantor are of the same class (within the meaning of Rule 144A under
the Act) as the Securities and listed on a national securities exchange
registered under Section 6 of the Exchange Act, or quoted in a U.S.
automated inter-dealer quotation system.
Any certificate signed by any officer of the Issuer or any
Subsidiary Guarantors and delivered to any Initial Purchaser or to
counsel for the Initial Purchasers shall be deemed a joint and several
representation and warranty by the Issuer and each of the Subsidiaries
to each Initial Purchaser as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Securities. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Issuer agrees to issue
and sell to each of the Initial Purchasers, and each of the Initial Purchasers
severally agrees to purchase from the Issuer, at a purchase price of 97.072% of
their principal amount, the respective principal amounts of the Securities set
forth opposite their names on Exhibit A hereto. The obligations of the Initial
Purchasers under this Agreement are several and not joint. One or more
certificates in definitive form for the Securities that the Initial Purchasers
have agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as each Initial Purchasers requests upon notice
to the Issuer at least 48 hours prior to the Closing Date, shall be delivered by
or on behalf of the Issuer, against pay-
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ment by or on behalf of the Initial Purchasers of the purchase price therefor by
wire transfer of immediately available funds. Such delivery of and payment for
the Securities shall be made at the offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York time, on August 28,
1997, or at such other place, time or date as the Initial Purchasers and the
Issuer may agree upon, such time and date of delivery against payment being
herein referred to as the "Closing Date". The Issuer will make such certificate
or certificates for the Securities available for checking and packaging by the
Initial Purchasers at the offices in New York, New York of BT Securities
Corporation at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchasers. The Initial Purchasers propose
to make an offering of the Securities at the price and upon the terms and in the
manner set forth in the Final Memorandum as soon as practicable after this
Agreement is entered into and as in the sole judgment of the Initial Purchasers
is advisable.
5. Certain Covenants. The Issuer and the Guarantors covenant and agree
with each of the Initial Purchasers that:
(a) The Issuer will not amend or supplement the Final
Memorandum or any amendment or supplement thereto of which the Initial
Purchasers and counsel to the Initial Purchasers shall not previously
have been advised and furnished a copy for a reasonable period of time
prior to the proposed amendment or supplement and as to which the
Initial Purchasers shall not have given their consent, which consent
shall not be unreasonably withheld. The Issuer will promptly, upon the
reasonable request of the Initial Purchasers or counsel for the Initial
Purchasers, make any amendments or supplements to the Preliminary
Memorandum or the Final Memorandum that may be necessary or advisable
in connection with the resale of the Securities by the Initial
Purchasers.
(b) The Issuer and the Guarantors will cooperate with the
Initial Purchasers in arranging for the qualification of the Securities
for offering and sale under the securities or "Blue Sky" laws of such
jurisdictions as the Initial Purchasers may designate and will continue
such qualification in effect for as long as may be necessary to
complete the resale of the Securities by the Initial Purchasers;
provided, however, that in connection therewith none of the Issuer or
any Guarantor shall be required to
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qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction or subject itself to any tax in
any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Notes or the Private
Exchange Notes, any event occurs or information becomes known as a
result of which the Final Memorandum as then amended or supplemented
would include an untrue statement of a material fact, or omit to state
a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
for any other reason it is necessary at any time to amend or supplement
the Final Memorandum in order to comply with applicable law, the Issuer
will promptly notify the Initial Purchasers thereof and will prepare,
at the Issuer's expense, an amendment to the Final Memorandum that
corrects such statement or omission or effects such compliance.
(d) The Issuer will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of
the Preliminary Memorandum and the Final Memorandum or any amendment or
supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuer will apply the net proceeds from the sale of
the Securities substantially as set forth under "Use of Proceeds" in
the Final Memorandum.
(f) For so long as any Securities remain outstanding, the
Issuer will furnish to the Initial Purchasers copies of all reports and
other communications (financial or otherwise) furnished by the Issuer
to the Trustee or the holders of the Securities and, as soon as
available, copies of any reports or financial statements furnished to
or filed by the Issuer with the Commission or any national securities
exchange on which any class of securities of the Issuer may be listed.
(g) None of the Issuer or the Guarantors will engage in any
form of general solicitation or general advertising (as those terms are
used in Regulation D under the Act) in connection with the offering of
the Securities or in any manner involving a public offering of the
Securities within the meaning of Section 4(2) of the Act.
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(h) For so long as any of the Securities remain outstanding,
the Issuer will make available, upon request, to any holder of such
Securities which is subject to transfer restrictions and any
prospective purchasers thereof the information specified in Rule
144A(d)(4) under the Act, unless the Issuer is then subject to Section
13 or 15(d) of the Exchange Act.
(i) The Issuer and each Guarantor will use its reasonable best
efforts to (i) permit the Securities to be designated PORTAL securities
in accordance with the rules and regulations adopted by the NASD
relating to trading in the Private Offerings, Resales and Trading
through Automated Linkages market (the "Portal Market") and (ii) permit
the Securities to be eligible for clearance and settlement through The
Depository Trust Company.
(j) In connection with Securities offered and sold in an
off-shore transaction (as defined in Regulation S) the Issuer will not
register any transfer of such Notes not made in accordance with the
provisions of Regulation S and will not, except in accordance with the
provisions of Regulation S, if applicable, issue any such Notes in the
form of definitive securities.
(k) The Issuer and the Guarantors will promptly (and in any
event, not later than the Closing Date) (i) enter into a Dealer-Manager
Agreement (the "Dealer Manager Agreement") appointing BT Securities
Corporation as Dealer Manager with respect to an Offer to Purchase and
Solicitation of Consents with respect to all outstanding 13% Senior
Subordinated Notes due 2005 (the "Old Notes") of the Issuer and (ii)
commence an Offer to Purchase and Solicitation of Consents pursuant to
the terms thereof; and the Issuer will purchase all Old Notes validly
tendered pursuant thereto.
6. Expenses. The Issuer agrees to pay all costs and expenses incident
to the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 10 hereof, including all costs and expenses incident to (i)
the printing, word processing or other production of documents with respect to
such transactions, including any costs of printing the Preliminary Memorandum
and the Final Memorandum and any amendment or supplement thereto, and any "Blue
Sky" memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchasers of copies of the foregoing
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documents, (iii) the fees and disbursements of counsel, accountants and any
other experts or advisors retained by the Issuer, (iv) the preparation, issuance
and delivery to the Initial Purchasers of any certificates evidencing the
Securities, (v) the qualification of the Securities under state securities and
"Blue Sky" laws, including filing fees and reasonable fees and disbursements of
counsel for the Initial Purchasers relating thereto, (vi) expenses of the Issuer
in connection with any meetings with prospective investors in the Securities,
(vii) fees and expenses of the Trustee including reasonable fees and expenses of
its counsel, and (viii) any fees charged by investment rating agencies for the
rating of the Securities. If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the Initial
Purchasers set forth in Section 7 hereof is not satisfied or because of any
failure, refusal or inability on the part of the Issuer to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder, other than by reason of a default by the Initial Purchasers, the
Issuer will reimburse the Initial Purchasers upon demand for all reasonable
out-of-pocket expenses (including reasonable counsel fees and disbursements)
that shall have been incurred by the Initial Purchasers in connection with the
proposed purchase and sale of the Securities. The Issuer shall not be liable to
the Initial Purchasers for loss of contemplated profits from the transactions
covered by this Agreement.
7. Conditions of the Initial Purchasers' Obligations. The obligation of
the Initial Purchasers to purchase and pay for the Securities shall, in their
sole discretion, be subject to the following conditions:
(a) The Initial Purchasers shall have received an opinion,
dated the Closing Date, of Xxxx, Scholer, Fierman, Xxxx & Handler, LLP,
counsel for the Issuer and the Guarantors, substantially the form of
Exhibit B hereto. References to the Final Memorandum in such opinion
shall include any amendment or supplement thereto prepared in
accordance with the provisions of this Agreement at the Closing Date.
(b) The Issuer shall have received an opinion, dated the
Closing Date, of Xxxx, Scholer, Fierman, Xxxx & Handler, LLP, tax
counsel for the Issuer and Guarantors, with respect to certain tax
matters related to the Issuer and the Guarantors, in the form of
Exhibit C hereto.
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(c) The Initial Purchasers shall have received an opinion,
dated the Closing Date, of Price Waterhouse, LLP, tax advisors to the
Issuer and the Guarantors, with respect to certain tax matters related
to the Issuer and the Guarantors, in the form of Exhibit D hereto.
(d) The Initial Purchasers shall have received an opinion,
dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Initial Purchasers, with respect to the sufficiency of certain
corporate proceedings and other legal matters relating to this
Agreement, and such other related matters as the Initial Purchasers may
require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx shall have
received and may rely upon such certificates and other documents and
information as they may reasonably request to pass upon such matters.
In addition, in rendering their opinion, Xxxxxx Xxxxxx & Xxxxxxx may
state that their opinion is limited to matters of New York, Delaware
corporate and federal law.
(e) The Initial Purchasers shall have received from Coopers &
Xxxxxxx LLP, independent public accountants for the Issuer, letters
dated, respectively, the date hereof and the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers and Xxxxxx
Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers.
(f) The Initial Purchasers shall have received from Xxxxxx
Xxxxxxxx LLP, independent public accountants for Caterair, letters
dated, respectively, the date hereof and the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers and Xxxxxx
Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers.
(g) The issuance and sale of the Securities pursuant to this
Agreement shall not be enjoined (temporarily or permanently) and no
action, suit or proceeding shall have been commenced with respect to
any court or governmental authority.
(h) The Initial Purchasers shall have received a certificate
or certificates, dated the Closing Date, of an officer of the Issuer,
Caterair and each Guarantor to the effect that to the best of such
officers' knowledge after reasonable inquiry:
(A) The representations and warranties of the Issuer,
Caterair and each of the Subsidiary Guaran-
21
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tors in this Agreement, the SCIS Credit Agreement, the
Caterair Credit Agreement and the Dealer Manager Agreement are
true and correct in all material respects as if made on and as
of the Closing Date, and the Issuer, Caterair and each of the
Subsidiary Guarantors have performed in all material respects
all covenants and agreements and satisfied all conditions on
their part to be performed or satisfied hereunder at or prior
to the Closing Date;
(B) At the Closing Date, since the date hereof or
since the date of the most recent financial statements in the
Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), no event or events have
occurred, no information has become known nor does any
condition exist that, individually or in the aggregate, would
have a Material Adverse Effect; and
(C) The sale of the Securities hereunder has not been
enjoined (temporarily or permanently).
(i) On the Closing Date, the Initial Purchasers shall have received the
Registration Rights Agreement executed by the Issuer and the Guarantors and such
agreement shall be in full force and effect.
(j) On or before the Closing Date, the Senior Bank Financing shall have
been consummated and the Existing Credit Agreement shall be fully repaid and
terminated.
(k) The Issuer and Caterair, CII and Sky Chefs, as guarantors, and the
Bank of New York, as trustee, shall have entered into a supplemental indenture
to the indenture dated as of September 15, 1995 (the "Old Indenture") governing
the Old Notes which shall be entered into in accordance with the terms of the
Old Indenture and shall provide for removal of sections 4.10, 4.11, 4.12, 4.13,
4.17, 4.18, 4.19, 4.20, 4.21, 4.22, and 5.01 of the Old Indenture.
(l) Caterair shall have received a waiver and an amendment to each of
its lease agreements with TriNet Essential Facilities X, Inc. and TriNet
Essential Facilities VIII R, Inc. with the effect of eliminating the minimum net
worth maintenance covenants therein.
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On or before the Closing Date, the Initial Purchasers and counsel
for the Initial Purchasers shall have received such further documents, opinions,
certificates and schedules or instruments relating to the business, corporate,
legal and financial affairs of the Issuer, Caterair, the Subsidiary Guarantors
and their respective subsidiaries as they shall have reasonably requested from
the Issuer, Caterair and the Subsidiary Guarantors.
All such opinions, certificates, letters, schedules, documents or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel for the Initial Purchasers. The Issuer, Caterair
and the Subsidiary Guarantors and their respective subsidiaries shall furnish to
the Initial Purchasers such conformed copies of such opinions, certificates,
letters, schedules, documents and instruments in such quantities as the Initial
Purchasers shall reasonably request.
8. Offering of Securities; Restrictions on Transfer. Each of the
Initial Purchasers represents and warrants (as to itself only) that it is a QIB.
Each of the Initial Purchasers agrees with the Issuer (as to itself only) that
(i) it has not and will not solicit offers for, or offer or sell, the Securities
by any form of general solicitation or general advertising (as those terms are
used in Regulation D under the Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Act; and (ii) it has and will solicit
offers for the Securities only from, and will offer the Securities only to (A)
in the case of offers inside the United States, persons whom the Initial
Purchasers reasonably believe to be QIBs or, if any such person is buying for
one or more institutional accounts for which such person is acting as fiduciary
or agent, only when such person has represented to the Initial Purchasers that
each such account is a QIB, to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A, and, in each case, in
transactions under Rule 144A and (B) in the case of offers outside the United
States, to persons other than U.S. persons ("foreign purchasers," which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust)) in reliance upon Regulation S under the Act; provided,
however, that in the case of this clause (B), in purchasing such Securities such
persons are deemed to have represented and agreed as provided under the caption
"Transfer Restrictions" contained in the Final Memorandum.
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Each Initial Purchaser represents and warrants with respect to
offers and sales outside the United States that (i) it has and will comply with
all applicable laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Securities or has in its possession or distributes any
Memorandum or any such other material, in all cases at its own expense; (ii) the
Securities have not been and will not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the Act or pursuant to an exemption from the
registration requirements of the Act; (iii) it has offered the Notes and will
offer and sell the Notes (A) as part of its distribution at any time and (B)
otherwise until 40 days after the later of the commencement of the offering and
the Closing Date, only in accordance with Rule 903 of Regulation S and,
accordingly, neither it nor any persons acting on its behalf have engaged or
will engage in any directed selling efforts (within the meaning of Regulation S)
with respect to the Securities, and any such persons have complied and will
comply with the offering restrictions requirement of Regulation S; and (iv) it
agrees that, at or prior to confirmation of sales of any such Securities, it
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it during
the restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the United
States Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of the distribution of the Securities
at any time or (ii) otherwise until 40 days after the later of the
commencement of the offering and the closing date of the offering, except
in either case in accordance with Regulation S (or Rule 144A if
available), under the Securities Act. Terms used above have the meaning
given to them in Regulation S."
Terms used in this Section 8 and not defined in this Agreement have the meanings
given to them in Regulation S.
9. Indemnification and Contribution. (a) The Issuer and the Guarantors
agree, jointly and severally, to indemnify and hold harmless each Initial
Purchaser, and each person, if any, who controls any Initial Purchaser within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
24
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against any losses, claims, damages or liabilities, joint or several, to which
such Initial Purchaser or such controlling person may become subject under the
Act, the Exchange Act or otherwise, insofar as any such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in (A) any Memorandum or any amendment or
supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Issuer or any
Guarantor or based upon written information furnished by or on behalf
of the Issuer or any Guarantor filed in any jurisdiction in order to
qualify the Securities under the securities or "Blue Sky" laws thereof
or filed with any securities association or securities exchange (each
an "Application"), or
(ii) the omission or alleged omission to state, in any
Memorandum or any amendment or supplement thereto, or any Application,
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading,
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person for any reasonable legal or other expenses incurred by such
Initial Purchaser or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
Issuer and the Guarantors will not be liable (i) in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Memorandum or any amendment or supplement thereto or any Application
in reliance upon and in conformity with written information furnished to the
Issuer by any Initial Purchaser specifically for use therein or (ii) with
respect to the Preliminary Memorandum, to the extent that any such loss, claim,
damage or liability arises solely from the fact that the Initial Purchasers sold
Securities to a person to whom there was not sent or given a copy of the Final
Memorandum (as amended or supplemented) at or prior to the written confirmation
of such sale if the Issuer shall have previously furnished copies thereof to the
Initial Purchasers in accordance with Section 5(d) hereof and the Final
Memorandum (as amended or supplemented) would have corrected any such untrue
statement or
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omission. This indemnity agreement will be in addition to any liability that the
Issuer and the Guarantors may otherwise have to the indemnified parties. The
Issuer and the Guarantors shall not be liable under this paragraph (a) for any
settlement of any claim or action effected without their prior written consent,
which consent shall not be unreasonably withheld or delayed.
The Initial Purchasers shall not, without the prior written consent
of the Issuer and the Guarantors, effect any settlement or compromise of any
pending or threatened proceeding in respect of which the Issuer or any of the
Guarantors is or could have been a party, or indemnity could have been sought
hereunder by the Issuer or the Guarantor, unless such settlement (A) includes an
unconditional written release of the Issuer and the Guarantors, in form and
substance reasonably satisfactory to the Issuer and the Guarantors, from all
liability on claims that are the subject matter of such proceeding and (B) does
not include any statement as to an admission of fault, culpability or failure to
act by or on behalf of the Issuer or the Guarantors.
(b) The Initial Purchasers agree, severally and not jointly, to
indemnify and hold harmless the Issuer and the Guarantors, their respective
directors, employees, agents and representatives and each person, if any, who
controls the Issuer or any Guarantor within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which the Issuer or any Guarantor or any such director, officer,
employee, agent, representative or controlling person may become subject under
the Act, the Exchange Act, or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in any Memorandum or any amendments or supplement thereto or any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in any Memorandum or any amendment or
supplement thereto, or any Application, or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
relating to such Initial Purchaser furnished to the Issuer by any Initial
Purchaser specifically for use therein; and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, the Issuer or
any Guarantor or any such director, officer, employee,
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agent, representative or controlling person for any legal or other expenses
reasonably incurred by any such person in connection with investigating or
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability that such Initial Purchaser may
otherwise have to the indemnified parties. None of the Initial Purchasers shall
be liable under this Section 9 for any settlement of any claim or action
effected without its prior written consent, which shall not be unreasonably
withheld or delayed.
Neither the Issuer nor any Guarantor shall, without the prior
written consent of each Initial Purchaser affected thereby, effect any
settlement or compromise of any pending or threatened proceeding in respect of
which such Initial Purchaser is or could have been a party, or indemnity could
have been sought hereunder by such Initial Purchaser, unless such settlement (A)
includes an unconditional written release of such Initial Purchaser, in form and
substance reasonably satisfactory to such Initial Purchaser, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of such Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action for which such indemnified party is
entitled to indemnification under this Section 9, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section 9, notify the indemnifying party of the commencement thereof in
writing; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party unless and to
the extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying of substantial rights and defenses. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
party to represent the indemnifying party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have
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been advised by counsel that there may be one or more legal defenses available
to it and/or other indemnified parties that are different from or additional to
those available to the indemnifying party, or (iii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party
within a reasonable time after notice of the institution of such action, then,
in each such case, the indemnifying party shall not have the right to direct the
defense of such action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select separate counsel to
defend such action on behalf of such indemnified party or parties. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and reasonable approval by such indemnified party of
counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 9 for any legal or other
expenses, other than reasonable costs of investigation, already incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by the Initial Purchasers in the case of paragraph (a) of this
Section 9 or the Issuer or any Guarantor in the case of paragraph (b) of this
Section 9, representing all indemnified parties under such paragraph (a) or
paragraph (b), as the case may be, who are parties to such action or actions) or
(ii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party. After such
notice from the indemnifying party to such indemnified party, the indemnifying
party will not be liable for the costs and expenses of any settlement of such
action effected by such indemnified party without the consent of the
indemnifying party, unless such indemnifying party waived its rights under this
Section 9, in which case the indemnified party may effect such a settlement
without such consent.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 9 is unavailable or insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall
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contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect (i) the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Issuer and
the Guarantors on the one hand and any Initial Purchaser on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Securities (before deducting expenses other than discounts and
commissions) received by the Issuer bear to the total discounts and commissions
received by the such Initial Purchaser. The relative fault of the parties shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer and the Guarantors
on the one hand, or the Initial Purchasers on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances. The Issuer, the Guarantors and the Initial Purchasers
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Issuer and the
Guarantors on the one hand and the Initial Purchasers on the other hand were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this paragraph (d). Notwithstanding any other provision of
this paragraph (d), no Initial Purchaser shall be obligated to make
contributions hereunder that in the aggregate exceed the total discounts,
commissions and other compensation received by such Initial Purchaser under this
Agreement, less the aggregate amount of any damages that such Initial Purchaser
has otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact, and
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this para-
29
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graph (d), each person, if any, who controls an Initial Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Initial Purchasers, and each director,
officer, employee, representative and agent of the Issuer and the Guarantors and
each person, if any, who controls the Issuer or any Guarantor within the meaning
of Section 15 of the Act of Section 20 of the Exchange Act shall have the same
rights to contribution as the Issuer and the Guarantors.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Issuer, the
Guarantors, their respective officers and the Initial Purchasers set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Issuer and the Guarantors, any of
their respective officers or directors, the Initial Purchasers or any
controlling person referred to in Section 9 hereof and (ii) delivery of and
payment for the Securities, and shall be binding upon, and shall inure to the
benefit of, any successors, assigns, heirs and personal representatives of the
Issuer and the Guarantors, the Initial Purchasers and the indemnified parties
referred to in Section 9 hereof. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 9 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchasers by notice to the Issuer and the Guarantors
in writing given prior to the Closing Date in the event that the Issuer or any
of the Guarantors shall have failed, refused or been unable to perform in all
material respects all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto or if at or prior to the
Closing Date:
(i) the Issuer, Caterair or any of the Subsidiaries shall have
sustained any loss or interference with respect to its businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding, which loss or interference has had or
has a Material Adverse Effect, or there shall have been, in the sole
judgment of the Initial Purchasers, any Material Adverse Change, or any
development involving a prospective Material Adverse Change (including
without
30
-30-
limitation a change in management or control of the Issuer), except in
each case as described in or contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto);
(ii) trading in securities generally on the New York Stock
Exchange, American Stock Exchange or the Nasdaq National Market shall
have been suspended or minimum or maximum prices shall have been
established on any such exchange or market;
(iii) a banking moratorium shall have been declared by New
York or United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency or (c) any material change in the financial
markets of the United States which, in the sole judgment of the Initial
Purchasers, makes it impracticable or inadvisable to proceed with the
offering or the delivery of the Securities as contemplated by the Final
Memorandum; or
(v) any securities of the Issuer shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in Section
10 hereof.
12. Information Supplied by the Initial Purchasers. The statements set
forth in the first paragraph on page (i) of the Final Memorandum and the text
under the heading "Private Placement" in the Final Memorandum constitute the
only information furnished by the Initial Purchasers to the Issuer and the
Guarantors for the purposes of this Agreement. The Initial Purchasers confirm
that such statements are correct in all material respects.
13. Notices. All communications hereunder shall be in writing and, if
sent to the Initial Purchasers, shall be mailed or delivered or telecopied and
confirmed in writing to the Initial Purchasers c/o BT Securities Corporation,
Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
31
-31-
Xxxxxxx, and with a copy to Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx, Esq. If sent to the Issuer or
any Guarantor, shall be mailed, delivered or telegraphed and confirmed in
writing to Issuer or such Guarantor c/o SC International Services, Inc., 000 X.
Xxxxx Xxxx., Xxxxxxxxx, Xxxxx 00000-0000, Attention: Xxxxxxx Xxxxxxx, with a
copy to Xxxx, Scholer, Fierman, Xxxx & Handler, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxxx, Esq.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers, the Issuer, the Guarantors and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Issuer and the Guarantors contained in Section 9 of this
Agreement shall also be for the benefit of any person or persons who control or
any of the Initial Purchasers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and (ii) the indemnities of the Initial
Purchasers contained in Section 9 of this Agreement shall also be for the
benefit of the directors, officers, employees, agents and representatives of the
Issuer and the Guarantors and any person or persons who control the Issuer and
the Guarantors within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act. No purchaser of Securities from the Initial Purchasers will be
deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
32
-32-
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among the Issuer, the
Subsidiary Guarantors and the Initial Purchasers.
Very truly yours,
SC INTERNATIONAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxx
------------------------------------
Name: Xxxxxx X. Xxx
Title: Authorized Signatory
SKY CHEFS, INC.
By: /s/ Xxxxxx X. Xxx
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Authorized Signatory
CATERAIR INTERNATIONAL, INC. (II)
By: /s/ Xxxxxx X. Xxx
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Authorized Signatory
33
CATERAIR INTERNATIONAL
TRANSITION CORPORATION
ONEX OHIO ACCEPTANCE CORPORATION
ONEX OHIO FINANCE CORP.
ONEX OHIO FINANCE CORP. II
ONEX OHIO EQUITY CORP.
ONEX OHIO EQUITY CORP. II
ONEX OHIO CREDIT CORP.
ONEX OHIO CREDIT CORP. II
ONEX OHIO CAPITAL CORP.
ONEX OHIO CAPITAL CORP. II
ONEX OHIO FISCAL CORP.
ONEX OHIO FISCAL CORP. II
ONEX OHIO FUNDS CORP.
ONEX OHIO FUNDS CORP. II
ARLINGTON SERVICES, INC.
ARLINGTON SERVICES HOLDING
CORPORATION
SKY CHEFS INTERNATIONAL CORP.
BETHESDA SERVICES, INC
CATERAIR NEW ZEALAND LIMITED
(FORMERLY KNOWN AS BETHESDA
SERVICES HOLDING CORPORATION)
JFK CATERERS, INC.
CATERAIR CONSULTING SERVICES
CORPORATION
WESTERN AIRE CHEF, INC.
CATERAIR AIRPORT PROPERTIES, INC.
CATERAIR ST. XXXXXX HOLDING
CORPORATION
SKY CHEFS ARGENTINE, INC.
By: /s/ Xxxxxx X. Xxx
------------------------------------
Name: Xxxxxx X. Xxx
Title: Authorized Signatory
34
CATERAIR INTERNATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxx
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Authorized Signatory
35
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BT SECURITIES CORPORATION
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
XXXXXXX, SACHS & CO.
By: /s/ Xxxxxxx, Xxxxx & Co.
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
XXXXX XXXXXX INC.
By: /s/ Xxxxx X.
-------------------------------------
Name: Xxxxx X.
Title: Director
36
BANKERS TRUST INTERNATIONAL PLC
By: /s/ Xxxxxxxxx Xxxxxxxx-Xxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxxxx-Xxxxxx
Title: Vice President
37
Exhibit A
Principal Amount
Initial Purchasers of Notes
------------------ ----------------
BT Securities Corporation....................... $140,000,000
X.X. Xxxxxx Securities Inc...................... $ 60,000,000
Credit Suisse First Boston Corporation.......... $ 30,000,000
Xxxxxxx, Xxxxx & Co............................. $ 30,000,000
Xxxxx Xxxxxx Inc................................ $ 30,000,000
Bankers Trust International PLC................. $ 10,000,000
------------
Total............................ $300,000,000
============
38
Exhibit B
[Form of Opinion of Xxxx, Scholer,
Fierman, Xxxx & Handler, LLP]
39
Exhibit B
[XXXX, SCHOLER, FIERMAN, XXXX & HANDLER LETTERHEAD]
(000) 000-0000
August 28, 1997
BT Securities Corporation
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Sachs & Co.
Xxxxx Xxxxxx Inc.
Bankers Trust International PLC
c/o BT Securities Corporation
One Bankers Trust Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel to SC International Services, Inc., a Delaware
corporation (the "ISSUER"), Sky Chefs, Inc., a Delaware corporation ("SKY
CHEFS"), Caterair International, Inc. (II), a Delaware corporation ("CII"),
Caterair International Corporation, a Delaware corporation ("CATERAIR"), and
each of the indirect domestic subsidiaries of the Issuer identified on the
signature pages of the Purchase Agreement referred to below (collectively, with
Sky Chefs, CII and Caterair, the "GUARANTORS", and each such corporation
individually, a "GUARANTOR"), in connection with the execution and delivery of
the Purchase Agreement, dated as of August 22, 1997 (the "PURCHASE AGREEMENT"),
among the Issuer, the Guarantors, and BT Securities Corporation, X.X. Xxxxxx
Securities Inc., Credit Suisse First Boston Corporation, Xxxxxxx, Xxxxx & Co.,
Xxxxx Xxxxxx Inc. and Bankers Trust International PLC, as initial purchasers
(collectively, the "INITIAL PURCHASERS"), and the transactions contemplated
thereby.
This opinion letter is delivered to the Initial Purchasers pursuant to
Section 7(a) of the Purchase Agreement. Unless otherwise indicated, capitalized
terms used but not defined herein have the meanings set forth in the Purchase
Agreement.
In connection herewith, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of such documents executed on or
before the date hereof as we have deemed necessary or appropriate as a basis for
the opinions set forth herein.
40
BT Securities Corporation
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Sachs & Co.
Xxxxx Xxxxxx Inc.
Bankers Trust International PLC 2 August 28, 1997
We have also examined, and are familiar with, executed originals or
copies, certified or otherwise identified to our satisfaction, of such corporate
documents and records of the Issuer and each Guarantor, such certificates of
public officials and officers of the Issuer and each Guarantor, and such other
agreements, instruments and other documents and records and such laws as we have
deemed necessary or appropriate for the purposes of this opinion. As to various
questions of fact material to our opinion, we have relied to the extent we have
deemed proper upon the representations made by the Issuer, each Guarantor and
the Initial Purchasers in the Purchase Agreement, the Notes, the Indenture and
the Registration Rights Agreement (collectively, the "DOCUMENTS") and assumed
that such parties will comply with the covenants contained in the Documents, and
certificates of public officials, officers of the Issuer and each Guarantor and
other appropriate persons.
In our examination, we have assumed the genuineness of all signatures
(other than as to the Issuer or any Guarantor), the authenticity, accuracy and
completeness of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies (including telecopies) and the authenticity of the originals of such
copies.
The laws covered by the opinions expressed herein are limited to the
United States Federal Securities Laws (including the Securities Act of 1933, the
Securities Exchange Act of 1934, the Trust Indenture Act of 1939, the Investment
Company Act of 1940 and the Investment Advisors Act of 1940), Regulation G, T, U
and X of the Board of Governors of the Federal Reserve System, the law of the
State of New York, and the General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing and the other limitations,
qualifications and assumptions hereinafter set forth, we are of the opinion
that:
1. The Issuer and each Guarantor is validly existing in good
standing as a corporation under the laws of its jurisdiction of incorporation,
has the requisite corporate power and authority to own or lease its properties
and conduct its businesses as described in the Final Memorandum and is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction identified on Schedule 1 hereto.
2. To our knowledge based solely on a review of the minute books
of the Issuer, Sky Chefs, CII and Caterair and the attached certificates of
officers of each of the Issuer,
41
BT Securities Corporation
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Xxxxx Xxxxxx Inc.
Bankers Trust International PLC 3 August 28, 1997
Sky Chefs, CII and Caterair (the "CERTIFICATES"), at the Closing Date, the
issued and outstanding capital stock of (i) the Issuer consists of 100 shares of
Common Stock, $.01 par value per share, (ii) Sky Chefs consists of 100 shares of
Common Stock, $.01 par value per share, (iii) CII consists of 100 shares of
Common Stock, $.01 par value per share, and (iv) Caterair consists of 10,000
shares of Common Stock, $.01 par value per share. At the Closing Date, to our
knowledge based solely on a review of the minute books of the Issuer, Sky Chefs,
CII and Caterair and the Certificates, there are no outstanding subscriptions,
warrants, rights or options to acquire, or instruments convertible into or
exchangeable for, any capital stock or other equity interest in the Issuer, Sky
Chefs, CII or Caterair. The outstanding shares of capital stock of the Issuer,
Sky Chefs, CII and Caterair have been duly authorized and validly issued, are
fully paid and nonassessable and were not issued in violation of any preemptive
or similar rights granted by the Issuer, Sky Chefs, CII or Caterair, as
applicable, pursuant to any agreement identified on Schedule 2 hereto or its
certificate of incorporation. To our knowledge based solely on a review of the
minute books of Sky Chefs and CII and the Certificates, the Issuer is the record
owner of all outstanding shares of capital stock of Sky Chefs and CII. To our
knowledge based solely on a review of the minute books of Caterair and the
Certificates, Caterair Holdings Corporation is the record owner of all
outstanding shares of capital stock of Caterair.
3. The Issuer has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Indenture, the Notes, the
Purchase Agreement and the Registration Rights Agreement. Each Guarantor has the
requisite corporate power and authority to execute, deliver and perform its
obligations under the Indenture, its Guarantee, the Purchase Agreement and the
Registration Rights Agreement.
4. The Indenture has been duly and validly authorized by the
Issuer and each Guarantor and, when executed and delivered by the Issuer and
each Guarantor (assuming the due authorization, execution and delivery thereof
by the Trustee), will constitute a valid and binding obligation of the Issuer
and each Guarantor, enforceable against each of them in accordance with its
terms, subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights (including, without limitation,
fraudulent transfer or conveyance laws), (ii) general equitable principles
(whether considered in a proceeding at law or in equity) and (iii) the Other
Exceptions (as defined herein, and collectively with the matters referred to in
clauses (i) and (ii) of this paragraph, the "EXCEPTIONS"). The Indenture meets
the requirements for qualification under the TIA.
42
BT Securities Corporation
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Sachs & Co.
Xxxxx Xxxxxx Inc.
Bankers Trust International PLC 4 August 28, 1997
5. The Notes have been duly and validly authorized by the Issuer
for issuance. The Notes, when executed by the Issuer and authenticated by the
Trustee in accordance with the provisions of the Indenture, and delivered to and
paid for by the Initial Purchasers in accordance with the terms of the Purchase
Agreement, will have been duly executed and delivered by the Issuer and will
constitute valid and binding obligations of the Issuer enforceable in accordance
with their respective terms, subject to the Exceptions.
6. The Guarantee of each Guarantor endorsed on the Notes has been
duly and validly authorized by such Guarantor and, when executed and delivered
by such Guarantor will, upon the execution, authentication and delivery of the
Notes and payment therefor in accordance with the terms of the Purchase
Agreement, constitute a valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms, subject to the
Exceptions.
7. The Exchange Notes (as defined in the Registration Rights
Agreement) have been duly and validly authorized by the Issuer. The Exchange
Notes when executed and issued by the Issuer and authenticated by the Trustee in
accordance with the terms of the Indenture and the Registration Rights Agreement
upon exchange of the Notes in accordance with the Registration Rights Agreement,
will constitute valid and binding obligations of the Issuer, enforceable in
accordance with their respective terms, subject to the Exceptions.
8. The Purchase Agreement has been duly authorized, executed and
delivered by the Issuer and each Guarantor.
9. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Issuer and each Guarantor and assuming due
authorization, execution and delivery thereof by each other party thereto
constitutes a valid and binding obligation of the Issuer and each Guarantor,
enforceable in accordance with its terms, subject to the Exceptions.
10. Except as described in the Final Memorandum or identified on
Schedule 3 hereto, to our actual knowledge, no consent, approval, order,
authorization or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority of the State of New
York, or any subdivision thereof, or pursuant to the United States Federal
Securities Laws or the General Corporation Law of the State of Delaware is
required for the performance of the Purchase Agreement, the Notes, the
Guarantees of Sky Chefs, CII or Caterair, the Indenture or the Registration
Rights Agreement by the Issuer, Sky Chefs, CII or
43
BT Securities Corporation
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Xxxxx Xxxxxx Inc.
Bankers Trust International PLC 5 August 28, 1997
Caterair (to the extent each such entity is a party thereto), except (i) those
which have been obtained, (ii) those required under state securities or "Blue
Sky" laws in connection with the purchase and distribution of the Securities by
the Initial Purchasers (as to which we express no opinion), (iii) in connection
with the registration under the Act of the Exchange Notes and the Guarantees of
the Guarantors of the Exchange Notes pursuant to the Registration Rights
Agreement and (iv) the qualification of the Indenture or the trustee thereunder
under the TIA in connection with the registration of the Exchange Notes pursuant
to the Registration Rights Agreement.
11. Neither the execution, delivery and performance by the Issuer,
Sky Chefs, CII or Caterair of the Purchase Agreement, the Notes, the Guarantees
of Sky Chefs, CII or Caterair, the Indenture or the Registration Rights
Agreement (to the extent each such entity is a party thereto), nor the
compliance by the Issuer, Sky Chefs, CII or Caterair with the terms and
provisions thereof (after giving effect to all amendments and waivers obtained
on or prior to the Closing Date) (i) will contravene any provision of the
General Corporation Law of the State of Delaware, United States Federal
Securities Laws or laws of the State of New York which in our experience are
normally applicable to general business corporations that are not engaged in
regulated businesses and to transactions of the type contemplated by the
Documents or any order, writ, injunction or decree of any court or governmental
instrumentality that is identified on Schedule 4 hereto, (ii) except as set
forth on Schedule 2 hereto, will conflict or be inconsistent with or result in
any breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, any agreement or instrument identified on Schedule 2
hereto, or (iii) will violate any provision of the certificate of incorporation
or by-laws of the Issuer, Sky Chefs, CII or Caterair; provided, that, we do not
express any opinion as to whether the execution, delivery or performance by the
Issuer or any Guarantor of the Purchase Agreement, the Notes, the Guarantees,
the Indenture or the Registration Rights Agreement or compliance with the terms
thereof will constitute a violation of or a default under any covenant,
restriction or provision with respect to financial ratios or tests or any aspect
of the financial condition or results of operations of the Issuer or any
Guarantor.
12. Assuming (i) the Securities are sold by the Issuer and the
Guarantors to the Initial Purchasers, and initially resold by the Initial
Purchasers, in accordance with the terms of, and in the manner contemplated by
the Purchase Agreement and the Final Memorandum, (ii) the accuracy of the
Issuer's and the Guarantors' representations and warranties set forth in Section
2 of the Purchase Agreement and the due performance by the Issuer and each
Guarantor of the covenants and agreements set forth in Section 5 and (iii) the
accuracy of the Initial Purchasers'
44
BT Securities Corporation
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Sachs & Co.
Xxxxx Xxxxxx Inc.
Bankers Trust International PLC 6 August 28, 1997
representations and warranties set forth in Section 8 of the Purchase Agreement
and the due performance by the Initial Purchasers of the covenants and
agreements set forth in Section 8 of the Purchase Agreement, the offer and sale
of the Securities to the Initial Purchasers in the manner contemplated by the
Purchase Agreement and the Final Memorandum or in connection with the initial
resale of the Securities by the Initial Purchasers in accordance with the
Purchase Agreement and the Final Memorandum does not require registration under
the Act and does not require the qualification of the Indenture under the TIA;
it being understood that no opinion is expressed as to any subsequent resale of
the Securities.
13. The Notes, the Guarantees, the Indenture, the Registration
Rights Agreement and the Purchase Agreement conform in all material respects to
the respective descriptions thereof in the Final Memorandum.
14. The statements made in the "Certain Federal Income Tax
Considerations" section of the Final Memorandum, to the extent they describe
statutes, rules or regulations or legal conclusions with respect to their
application, have been reviewed by us and are correct in all material respects.
15. Neither the consummation of the transactions contemplated by
the Purchase Agreement nor the issuance, sale, execution or delivery of the
Securities will violate Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System.
16. Neither the Issuer nor any Guarantor is now, or after giving
effect to the issuance of the Securities, the transactions contemplated by the
Purchase Agreement and the other transactions contemplated by the Final
Memorandum, will be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
17. The statements in the Final Memorandum under the heading
"Description of Notes" and "Exchange Offer; Registration Rights," insofar as
such statements purport to summarize certain provisions of the Indenture, the
Notes, the Guarantees, the Exchange Notes and the Registration Rights Agreement,
subject to the limitations contained in such statements, provide a fair and
accurate summary in all material respects of such agreements or instruments.
We do not opine upon and do not assume any responsibility for and are
not passing upon the accuracy (except as indicated in clauses 13, 14 and 17
above), completeness and fairness of the statements contained in the Final
Memorandum and we have not made any
45
BT Securities Corporation
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Sachs & Co.
Xxxxx Xxxxxx Inc.
Bankers Trust International PLC 7 August 28, 1997
independent check or verification thereof. However, we have participated in
conferences with officers and other representatives of the Issuer,
representatives of the independent accountants for the Issuer and
representatives of the Initial Purchasers in connection with the preparation of
the Final Memorandum. Based upon these conferences and our review of the
documents referenced above (our determination of materiality is based to the
extent we deem proper upon the opinions, representations and statements of the
officers and other representatives of the Issuer), no facts have come to our
attention which lead us to believe that the Final Memorandum as of the date
thereof or as of the date hereof contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary in order
to make the statements made therein, in light of the circumstances under which
they were made, not misleading (it being understood that we express no opinion
or belief as to the financial statements, schedules and other financial,
accounting and statistical data or information included in the Final Memorandum
or omitted therefrom).
Attached to this opinion is the Certificate which contains statements
to the effect that:
(i) Except as described in the Final Memorandum or set forth on
Schedule 5 hereto, there are no pending or, to the best knowledge of the
signatories of the Certificate, threatened (in writing) actions, suits,
proceedings, inquiries or investigations to which the Issuer, Sky Chefs,
CII or Caterair, or to which the property of the Issuer, Sky Chefs, CII or
Caterair, is subject before any court or before or brought by any
governmental agency or body of the Federal Government of the United States
or any State of the United States.
(ii) Except as described in the Final Memorandum or as set forth in the
documentation relating to the Senior Bank Financing, there are no express
consensual encumbrances or restrictions on the ability of Sky Chefs or CII
to (a) pay dividends or make any other distributions on any of its capital
stock or to pay any indebtedness owed to the Issuer or (b) make any loans
or advances to, or investments in, the Issuer.
Based solely on our actual knowledge and inquiry of certain officers of the
Issuer and the Guarantors, nothing has come to our attention that would give us
reason to doubt the veracity of the statements made in the Certificate.
46
BT Securities Corporation
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Sachs & Co.
Xxxxx Xxxxxx Inc.
Bankers Trust International PLC 8 August 28, 1997
Our opinions set forth above are subject to the following limitations,
qualifications and assumptions:
The opinion expressed in paragraph 2 as to contractual preemptive
rights does not imply an opinion as to any anti-dilution or similar provisions
set forth in any license, agreement, contract, indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument.
The foregoing opinions are subject to the qualification that the
enforceability of certain waivers, rights and remedies provided in the Documents
may be unavailable or limited by certain laws and judicial decisions.
We express no opinion or belief as to the financial statements,
schedules and other financial, accounting and statistical data or information
included in the Final Memorandum or omitted therefrom or with respect to any
necessary qualification under the state securities or "Blue Sky" laws of the
various jurisdictions in which the Securities are being offered by the Initial
Purchasers.
With respect to our opinions set forth in paragraphs 10 and 11 above
with respect to the Issuer's, Sky Chefs', CII's or Caterair's performance of
agreements or obligations, we address performance only of agreements and
obligations which are required to be performed on or prior to the date hereof.
With respect to our opinions set forth above, we also assume that all
of the issued and outstanding shares of capital stock of each Guarantor are
owned beneficially and of record by the persons set forth on Schedule 1 attached
hereto. In addition, we assume that all of the issued and outstanding shares of
the capital stock of each Guarantor have been duly authorized and validly issued
and are fully paid and nonassessable.
We express no opinion as to (i) the provisions of the Purchase
Agreement, the Registration Rights Agreement, the Indenture, or any other
agreement or document providing for the indemnification of or contribution to a
party with respect to a liability arising under Federal or state securities laws
or where such indemnification or contribution is contrary to public policy, (ii)
any purported waiver of rights under stay, extension and usury laws contained in
the Indenture, the Notes or the Exchange Notes or (iii) the effect of any
fraudulent transfer or conveyance laws (collectively, the "OTHER EXCEPTIONS").
47
BT Securities Corporation
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Xxxxx Xxxxxx Inc.
Bankers Trust International PLC 9 August 28, 1997
To the extent that the obligations of the Issuer under the Indenture
may be dependent upon such matters, we assume for purposes of this opinion that
the Trustee under the Indenture is duly organized, validly existing and in good
standing under the laws of its jurisdiction of its organization; that the
Trustee is duly qualified to engage in the activities contemplated by the
Indenture; that the Indenture has been duly authorized, executed and delivered
by the Trustee and constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms; that the
Trustee is in compliance, generally and with respect to acting as trustee under
the Indenture, with all applicable laws and regulations; and that the Trustee
has the requisite organizational and legal power and authority to perform its
obligations under the Indenture.
To the extent that the obligations of the Issuer under the Purchase
Agreement and the Registration Rights Agreement may be dependent upon such
matters, we assume for purposes of this opinion that each Initial Purchaser is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of its organization; that each Initial Purchaser is duly qualified
to engage in the activities contemplated by such agreements; that each of such
agreements has been duly authorized, executed and delivered by each Initial
Purchaser and constitutes a legal, valid and binding obligation of each Initial
Purchaser, enforceable against such Initial Purchaser in accordance with its
terms; that each Initial Purchaser is in compliance, generally and with respect
to acting as Initial Purchaser under such agreements, with all applicable laws
and regulations; and that each Initial Purchaser has the requisite
organizational and legal power and authority to perform its obligations under
such agreements.
Our opinions are rendered solely for your information with respect to
the foregoing, and may not be relied upon by any other person or for any other
purpose without our prior written consent.
Very truly yours,
48
SCHEDULE 1
Jurisdictions in Which Entities Are in Good
Standing
DATE OF QUALIFICATION STATE
SC INTERNATIONAL SERVICES, INC.
July 10, 1995 Delaware
September 28, 1995 Texas
SKY CHEFS, INC.
September 19, 1941 Delaware
April 9, 1981 Alabama
November 2, 1941 Arizona
December 2, 1942 California
December 1, 1949 Colorado
September 28, 1995 Connecticut
May 2, 1977 Florida
September 28, 1995 Georgia
July 9, 1942 Illinois
November 3, 1944 Kentucky
December 1, 1980 Louisiana
March 5, 1970 Maryland
December 28, 1944 Massachusetts
December 2, 1971 Michigan
January 25, 1996 Minnesota
July 29, 1980 Missouri
October 11, 1985 Nebraska
September 28, 1995 Nevada
49
DATE OF QUALIFICATION STATE
June 7, 1979 New Jersey
November 23, 1981 New Mexico
October 31, 1941 New York
May 5, 1986 North Carolina
November 3, 1941 Ohio
July 1, 1942 Oklahoma
October 13, 1966 Oregon
No Date Reported Pennsylvania
September 28, 1995 South Carolina
October 31, 1941 Tennessee
December 8, 1941 Texas
September 28, 1995 Utah
October 18, 1976 Virginia
September 28, 1995 Washington
June 21, 1968 Washington, D.C.
September 10, 1980 Wisconsin
SKY CHEFS INTERNATIONAL CORP.
November 9, 1993 Delaware
CATERAIR INTERNATIONAL, INC. (II)
July 6, 1995 Delaware
September 27, 1995 California
September 27, 1995 Maryland
2
50
DATE OF QUALIFICATION STATE
September 27, 1995 Massachusetts
September 27, 1995 New York
September 29, 1995 Pennsylvania
September 27, 1995 Utah
BETHESDA SERVICES, INC.
September 21, 1995 Delaware
CATERAIR NEW ZEALAND LIMITED
(formerly Bethesda Services Holding Corporation)
September 21, 1995 Delaware
ARLINGTON SERVICES, INC.
December 8, 1992 Delaware
ARLINGTON SERVICES HOLDING CORPORATION
September 15, 1995 Delaware
3
51
DATE OF QUALIFICATION STATE
ONEX OHIO ACCEPTANCE CORPORATION
April 23, 1986 Delaware
ONEX OHIO CREDIT CORP.
April 23, 1986 Delaware
ONEX OHIO EQUITY CORP.
April 27, 1987 Delaware
ONEX OHIO FINANCE CORP.
December 15, 1987 Delaware
ONEX OHIO FINANCE CORP. II
February 16, 1989 Delaware
ONEX OHIO CAPITAL CORP.
September 26, 1988 Delaware
ONEX OHIO FISCAL CORP.
September 26, 1988 Delaware
ONEX OHIO FUNDS CORP.
September 26, 1988 Delaware
4
52
DATE OF QUALIFICATION STATE
ONEX OHIO CREDIT CORP. II
December 29, 1993 Delaware
ONEX OHIO FUNDS CORP. II
December 29, 1993 Delaware
ONEX OHIO FISCAL CORP. II
December 29, 1993 Delaware
ONEX OHIO EQUITY CORP. II
December 29, 1993 Delaware
ONEX OHIO CAPITAL CORP. II
December 29, 1993 Delaware
5
53
DATE OF QUALIFICATION STATE
CATERAIR INTERNATIONAL CORPORATION
June 26, 1989 Delaware
October 18, 1989 Arizona
September 25, 1989 California
September 25, 1989 Connecticut
September 15, 1989 Florida
September 25, 1989 Georgia
September 25, 1989 Louisiana
June 30, 1989 Maryland
September 25, 1989 Massachusetts
September 25, 1989 Michigan
October 31, 1989 Minnesota
October 6, 1989 Missouri
December 8, 1989 Nevada
October 19, 1989 New Mexico
September 26, 1989 New York
September 25, 1989 Oregon
September 25, 1989 Pennsylvania
September 26, 1989 South Carolina
September 25, 1989 Texas
September 25, 1989 Utah
September 25, 1989 Washington
September 27, 1989 Washington, D.C.
CATERAIR AIRPORT PROPERTIES, INC.
(FORMERLY MARRIOTT AIRPORT PROPERTIES, INC.)
6
54
DATE OF QUALIFICATION STATE
September 1, 1972 Delaware
June 26, 1989 California
CATERAIR CONSULTING SERVICES CORPORATION
(formerly KCI Caterers, Inc.)
July 2, 1971 Delaware
October 15, 1971 Missouri
CATERAIR ST. XXXXXX HOLDINGS CORPORATION
November 13, 1992 Delaware
JFK CATERERS, INC.
October 11, 1983 Delaware
October 20, 1983 New York
7
55
DATE OF QUALIFICATION STATE
WESTERN AIRE CHEF, INC.
May 17, 1973 Delaware
June 5, 1973 California
August 3, 1992 Minnesota
SKY CHEFS ARGENTINE, INC.
(formerly Marriott Argentine Airline Catering, Inc.)
June 15, 1990 Delaware
CATERAIR INTERNATIONAL TRANSITION CORPORATION
October 12, 1995 Delaware
January 5, 1996 South Carolina
8
56
SCHEDULE 2
Agreements or Instruments
Capitalized terms used but not defined in this Schedule 2, have the meanings set
forth in the attached opinion letter
Catering Services Agreement, dated as of April 27, 1992, between Sky Chefs and
American Airlines, Inc. ("AMERICAN")
Amendment to Catering Services Agreement, dated as of February 12, 1993, between
Sky Chefs and American
Amendment to Catering Services Agreement, dated as of June 29, 1993, between Sky
Chefs and American
Amendment to Catering Services Agreement, dated as of July 15, 1994, between Sky
Chefs and American
Employment Agreement, dated as of January 1, 1997, between Xxxxxxx X. Xxx and
Sky Chefs
Employment Agreement, dated as of January 1, 1997, between Xxxxxxx X. Xxxxxxx
and Sky Chefs
Employment Agreement, dated as of January 1, 1997, between Xxxxxxx X. Xxxx and
Sky Chefs
Management Shareholders' Agreement, dated as of May 29, 1986, among Onex Food
Services, Inc. and certain other parties
Promissory Note, dated September 29, 1995, by Caterair in favor of the Issuer
Catering Services Agreement, dated February 11, 1992, between Caterair and
American, as amended
Global Catering Agreement, dated July 31, 1996, between Canadian Airlines
International Ltd. and Sky Chefs
Credit Agreement, dated as of September 29, 1995, among Onex Food Services,
Inc., the Issuer, Caterair, Caterair Holdings Corporation and the lenders named
therein, Bankers Trust Company, Xxxxxx Guaranty Trust Company of New York and
Xxxxxxx, Sachs & Co., as documentation agent, Bankers Trust Company of New York,
as syndication agent, and Xxxxxx Guaranty Trust Company of New York, as
administrative agent, and the Bank of New York, as co-agent -- This Agreement
will be satisfied and discharged at the closing of the offering of the Notes.
9
57
The Indenture, dated as of September 15, 1995, among the Issuer, the Sky Chefs,
CII, Caterair and The Bank of New York, as trustee
Those several Lease Agreements, each dated as of May 15, 1993, between Caterair,
on the one hand, and TriNet Essential Facilities VIII B, Inc. or TriNet
Essential Facilities X, Inc., as the case may be, on the other hand, as amended
Agreement concerning Delta Dailyfoods Texas, Inc. between Cabeco Holdings, Inc.
and Sky Chefs and Aaldering Holdings, Inc., dated December 17, 1993
Securityholders' Agreement, dated as of September 29, 1995, among Onex Food
Services, Inc., Onex U.S. LLC and certain other parties
Stockholders' Agreement, dated as of December 6, 1993, among Onex Corporation,
Onex Food Services, Inc., OnCap Holdings U.S., Inc., OMI Quebec Inc., LSG
Lufthansa Service GmbH and LSG Lufthansa Service USA Corporation, as amended
Catering Agreement, effective the 30th day of September 1995, by and between
United Air Lines, Inc. and Sky Chefs relating to various airports
Catering Agreement, dated as of June 1, 1996, between Delta Air Lines, Inc. and
Sky Chefs relating to various airports
Catering Agreement, dated as of September 30, 1996, between Sky Chefs and
Northwest Airlines, Inc.
10
58
SCHEDULE 3
Consent, Waivers, Approvals, Authorizations And Orders
None.
11
59
SCHEDULE 4
Orders, Writs, Injunctions or Decrees
of any Court or Governmental Instrumentality
None.
12
60
SCHEDULE 5
Pending or Threatened Litigations,
Actions, Suits or Proceedings
13
61
Exhibit C
[Form of Opinion of Xxxx, Scholer,
Fierman, Xxxx & Handler, LLP,
with respect to certain tax matters]
62
Exhibit D
[Form of Opinion of Price Waterhouse, LLP]
63
Schedule A
SUBSIDIARIES
SC International Services, Inc.
("SCIS")
------------------------------------ ----------------- ----------------------
OWNERSHIP JURISDICTION
SUBSIDIARY PERCENTAGE OF INCORPORATION
------------------------------------ ----------------- ----------------------
Sky Chefs, Inc.* ("Sky Chefs") SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Caterair International, Inc. (II)* SCIS (100%) Delaware
("CII")
------------------------------------ ----------------- ----------------------
Caterair International SCIS (100%) Delaware
Transition Corporation*
------------------------------------ ----------------- ----------------------
Onex Ohio Acceptance SCIS (100%) Delaware
Corporation*
------------------------------------ ----------------- ----------------------
Onex Ohio Finance Corp.* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Onex Ohio Finance Corp. II* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Onex Ohio Equity Corp.* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Onex Ohio Equity Corp. II* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Onex Ohio Credit Corp.* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Onex Ohio Credit Corp. II* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Onex Ohio Capital Corp.* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Onex Ohio Capital Corp. II* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Onex Ohio Fiscal Corp.* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Onex Ohio Fiscal Corp. II* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Onex Ohio Funds Corp.* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Onex Ohio Funds Corp. II* SCIS (100%) Delaware
------------------------------------ ----------------- ----------------------
Arlington Services, Inc.* ("ASI") Sky Chefs (100%) Delaware
------------------------------------ ----------------- ----------------------
Arlington Services Holding Sky Chefs (100%) Delaware
Corporation* ("ASHC")
------------------------------------ ----------------- ----------------------
Sky Chefs International Corp.* Sky Chefs (100%) Delaware
("SCIC")
------------------------------------ ----------------- ----------------------
Bethesda Services, Inc.* ("BSI") CII (100%) Delaware
------------------------------------ ----------------- ----------------------
A-1
64
------------------------------------ ----------------- ----------------------
OWNERSHIP JURISDICTION
SUBSIDIARY PERCENTAGE OF INCORPORATION
------------------------------------ ----------------- ----------------------
Caterair New Zealand Limited* BSI (100%) Delaware
(formerly known as Bethesda
Services Holding Corporation)
("CNZL")
------------------------------------ ----------------- ----------------------
JFK Caterers, Inc.* ASHC (100%) Delaware
------------------------------------ ----------------- ----------------------
Caterair Consulting Services ASHC (100%) Delaware
Corporation*
------------------------------------ ----------------- ----------------------
Western Aire Chef, Inc.* ("WAC") ASHC (100%) Delaware
------------------------------------ ----------------- ----------------------
Caterair Airport Properties, Inc.* ASHC (100%) Delaware
("CAP")
------------------------------------ ----------------- ----------------------
Caterair St. Xxxxxx Holding ASHC (100%) Delaware
Corporation* ("CSTHC")
------------------------------------ ----------------- ----------------------
Sky Chefs Argentine, Inc.* ASHC (100%) Delaware
------------------------------------ ----------------- ----------------------
LSG Sky Chefs do Brazil SCIC (100%) Brazil
Catering-Refeicoes Ltda. ("LSG do
Brazil")
------------------------------------ ----------------- ----------------------
ServCater International Ltda. LSG do Brazil Brazil
(90%)
------------------------------------ ----------------- ----------------------
Arlington Services Mexico S.A. de ASHC (100%) Mexico
C.V. ("ASM")
------------------------------------ ----------------- ----------------------
Caterair de Mexico S.A. de C.V. ASM (100%) Mexico
------------------------------------ ----------------- ----------------------
Comisariato Gotre S.A. ASM (100%) Mexico
------------------------------------ ----------------- ----------------------
Inmobiliaria Maraca S.A. de C.V. ASM (100%) Mexico
------------------------------------ ----------------- ----------------------
Casa xx Xxxxx xx Xxxx, X.X. ASM (100%) Mexico
("CPL")
------------------------------------ ----------------- ----------------------
Cocina del Aire Provincia S.A. de CPL (100%) Mexico
C.V.
------------------------------------ ----------------- ----------------------
Caterair Inflite Services de CP L(100%) Mexico
Mexico S.A. de C.V.
------------------------------------ ----------------- ----------------------
Cater Suprimento de Refeicoes, ASHC (100%) Brazil
Ltd. ("CSRL")
------------------------------------ ----------------- ----------------------
Caterair Servicos de Bordo e CSRL (100%) Brazil
Hotelaria S.A.
------------------------------------ ----------------- ----------------------
Caterair Chateau Canada ASHC (100%) Canada
Limited ("CCCL")
------------------------------------ ----------------- ----------------------
A-2
65
------------------------------------ ----------------- ----------------------
OWNERSHIP JURISDICTION
SUBSIDIARY PERCENTAGE OF INCORPORATION
------------------------------------ ----------------- ----------------------
SC International Services Ireland CCCL (100%) Ireland
------------------------------------ ----------------- ----------------------
Sky Chefs U.K. Limited ("SCUKL") ASHC (100%) United Kingdom
------------------------------------ ----------------- ----------------------
LSG Lufthansa Service Sky SCUKL (50%) United Kingdom
Chefs/GCC Limited
------------------------------------ ----------------- ----------------------
Arlington Services Panama S.A. de ASHC (100%) Panama
C.V. ("ASP")
------------------------------------ ----------------- ----------------------
Inversiones Turisticas ASP (100%) Panama
Aeropuerto Panama S.A. ("ITAP")
------------------------------------ ----------------- ----------------------
Caterair International de Panama ITAP (100%) Panama
S.A.
------------------------------------ ----------------- ----------------------
Caterair Barcelona S.A. ASHC ([80]%) Spain
------------------------------------ ----------------- ----------------------
Caterair Madrid S.A. ("CM") ASHC (100%) Spain
------------------------------------ ----------------- ----------------------
Caterair Barcelona S.A. CM (20%) Spain
------------------------------------ ----------------- ----------------------
LSG Lufthansa Service Sky Chefs ASHC (100%) France
France S.A.
------------------------------------ ----------------- ----------------------
Caterair International ASHC (100%) Venezuela
Venezuela C.A. ("CIV")
------------------------------------ ----------------- ----------------------
Marriott Export Services, L.A. CIV (100%) Venezuela
------------------------------------ ----------------- ----------------------
Marriott International Trade CIV (100%) Venezuela
Services C.A.
------------------------------------ ----------------- ----------------------
Caterair International Japan Ltd. ASHC (100%) Japan
------------------------------------ ----------------- ----------------------
Caterair In-Flite Services of ASHC (100%) Virgin Islands
V.I., Inc.
------------------------------------ ----------------- ----------------------
Marriott In-Flite Services of ASHC (100%) Korea
Korea, Ltd.-
------------------------------------ ----------------- ----------------------
Caterair Australia Pty. Ltd. ("CAP CAP (100%) Australia
Ltd.")
------------------------------------ ----------------- ----------------------
Caterair Airport Services Pty. CAP Ltd. (51%) Australia
Ltd. ("CASP")
------------------------------------ ----------------- ----------------------
Caterair Airport Services (Sydney) CASP (100%) Australia
Pty. Ltd.
------------------------------------ ----------------- ----------------------
Caterair Taiwan Inflight Services, CNZL (100%) Taiwan
Inc.-
------------------------------------ ----------------- ----------------------
A-3
66
------------------------------------ ----------------- ----------------------
OWNERSHIP JURISDICTION
SUBSIDIARY PERCENTAGE OF INCORPORATION
------------------------------------ ----------------- ----------------------
Caterair Portugal CAP (26%) Portugal
Assistancia A Bordo Limitada
------------------------------------ ----------------- ----------------------
Caterair Chile S.A. ("CC") WAC (99%) Chile
CAP (1%)
------------------------------------ ----------------- ----------------------
Caterair Servicos CC (97%) Chile
Industriales Ltda Xxxxxx
Xxxxxxxx (3%)
-------------------------
* Guarantor of Notes.
- Held pursuant to certain trust arrangements.
A-4
67
Caterair International Corporation
("Caterair")
---------------------------------- ------------------- ----------------------
OWNERSHIP JURISDICTION
SUBSIDIARY PERCENTAGE OF INCORPORATION
---------------------------------- ------------------- ----------------------
Caterair Contracting Caterair (100%) Delaware
Corporation
---------------------------------- ------------------- ----------------------
Caterair Portugal Caterair (74%) Portugal
Assistancia A Bordo
Limitada
---------------------------------- ------------------- ----------------------
A-5
68
JOINT VENTURES
SC International Services, Inc.
("SCIS")
------------------------------------ ----------------- ----------------------
OWNERSHIP JURISDICTION
JOINT VENTURE PERCENTAGE OF INCORPORATION
------------------------------------ ----------------- ----------------------
Aerococina, S.A. de C.V. SCIS (49%) Mexico
------------------------------------ ----------------- ----------------------
LSG Lufthansa Service Sky Chefs SCUKL (50%) United Kingdom
GCC Limited
------------------------------------ ----------------- ----------------------
Caterair Brasil, S.A. ASHC (49%) Brazil
------------------------------------ ----------------- ----------------------
Barbados Flight Kitchen ASHC (49%) Barbados
Limited-(u)
------------------------------------ ----------------- ----------------------
Versair Inflight Services Ltd.-(u) ASHC (24%) Jamaica
------------------------------------ ----------------- ----------------------
St Lucia Catering Services Ltd.-(u) ASHC (49%) St. Lucia
------------------------------------ ----------------- ----------------------
Antigua Catering Services Ltd.(u) ASHC (49%) Antigua
------------------------------------ ----------------- ----------------------
Caterair Lebanon XXX - ASHC (20%) Lebanon
------------------------------------ ----------------- ----------------------
Gulf International Caterers W.L.L. ASHC (49%) Bahrain
------------------------------------ ----------------- ----------------------
St. Xxxxxx Catering CSTHC (37%) Delaware
Corporation(u)
------------------------------------ ----------------- ----------------------
Inflight Holdings (Cayman) Ltd. ASHC (49%) Cayman Islands
("IHCL")-(u)
------------------------------------ ----------------- ----------------------
Ecuador Inflight Services (Cayman) IHCL (100%) Ecuador
Ltd. ("EISCL")(u)
------------------------------------ ----------------- ----------------------
Cateraire del Ecuador(u) EISCL (61%) Ecuador
------------------------------------ ----------------- ----------------------
Industrial Catering Services IHCL (100%) Cayman Islands
(Cayman) Ltd. ("ICSCL")(u)
------------------------------------ ----------------- ----------------------
Godca S.A.(u) ICSCL (100%) El Salvador
------------------------------------ ----------------- ----------------------
Cayman Catering Services Ltd.(u) IHCL (100%) Cayman Islands
------------------------------------ ----------------- ----------------------
Belize Inflight Services (Cayman) IHCL (100%) Cayman Islands
Ltd. ("BISCL")(u)
------------------------------------ ----------------- ----------------------
Belize Inflight Services Limited(u) BISCL (100%) Belize
------------------------------------ ----------------- ----------------------
A-6
69
------------------------------------ ----------------- ----------------------
OWNERSHIP JURISDICTION
JOINT VENTURE PERCENTAGE OF INCORPORATION
------------------------------------ ----------------- ----------------------
Cocina del Aire (Cayman) Ltd. IHCL (100%) Cayman Islands
("CACL")(u)
------------------------------------ ----------------- ----------------------
Cocina del Aire, S.A. de C.V.(u) CACL (100%) Guatemala
------------------------------------ ----------------- ----------------------
Grenada Inflight (Cayman) Ltd. IHCL (100%) Cayman Islands
("GICL")(u)
------------------------------------ ----------------- ----------------------
Inflight Caterers (Grenada) Ltd.(u) GICL (50%) Grenada
------------------------------------ ----------------- ----------------------
St. Maarten In-flight (Cayman) IHCL (100%) Cayman Islands
Ltd. ("SMICL")(u)
------------------------------------ ----------------- ----------------------
St. Maarten In-flight SMICL (100%) St. Maarten
Services N.V.(u)
------------------------------------ ----------------- ----------------------
Cocina de Vuelos S.A. de C.V.-(u) ASHC (49%) El Salvador
------------------------------------ ----------------- ----------------------
Airport Restaurants (1992) Limited ASHC (49%) Barbados
-(u)
------------------------------------ ----------------- ----------------------
Aeromar, Ltd. ("AL") SCUKL (49%) Russia
------------------------------------ ----------------- ----------------------
Huntsman Aeromar AL (25%) Russia
------------------------------------ ----------------- ----------------------
Comisariato de Baja ASM (50%) Mexico
California S.A. de C.V.
------------------------------------ ----------------- ----------------------
Delta Dailyfood Texas, Inc. Sky Chefs (33%) Texas
------------------------------------ ----------------- ----------------------
----------------------------
- Held pursuant to certain trust arrangements.
(u) Related to Xxxxxxx/SCIS Joint Venture
A-7
70
Caterair International Corporation
("Caterair")
[None.]
A-8
