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EXHIBIT 10.5
SC INTERNATIONAL SERVICES, INC.
000 Xxxx Xxxxx Xxxx.
Xxxxxxxxx, Xxxxx 00000
(000) 000-0000
(000) 000-0000 (Facsimile)
December 29, 0000
Xxx Xxxx xx Xxx Xxxx
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: EXCHANGE AGENT AGREEMENT
Ladies and Gentlemen:
SC International Services, Inc., a Delaware corporation (the "Issuer"),
and the Guarantors (the "Guarantors") identified in the Registration Statement
(as defined herein) propose to make an offer (the "Exchange Offer") to exchange
up to $300,000,000 aggregate principal amount of the Issuer's 9 1/4% Senior
Subordinated Notes due 2007, Series B (the "Exchange Notes") (and the related
guarantees of the Guarantors) for a like principal amount of the Issuer's
outstanding 9 1/4% Senior Subordinated Notes due 2007, Series A (the "Private
Notes") (and the related guarantees of the Guarantors). The terms and conditions
of the Exchange Offer are set forth in a prospectus (the "Prospectus") included
in the Issuer's and the Guarantors' registration statement on Form S-4 (File No.
333-37475), as amended (the "Registration Statement"), filed with the Securities
and Exchange Commission (the "Commission"), and proposed to be distributed to
all record holders of the Private Notes. The Private Notes and the Exchange
Notes are collectively referred to herein as the "Notes." Capitalized terms used
herein and not defined shall have the respective meanings ascribed to them in
the Prospectus or the Letter of Transmittal which constitutes part of the
Prospectus.
The Issuer hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Issuer on or
about December 31, 1997. The Letter of Transmittal accompanying the Prospectus
is to be used by the holders of the Private Notes to accept the Exchange Offer,
and contains instructions with respect to the delivery of Private Notes
tendered.
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The Exchange Offer shall expire at 5:00 P.M., New York City time, on
February 4, 1998, or on such later date or time to which the Issuer may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Issuer expressly reserves the right to extend
the Exchange Offer from time to time, and may extend the Exchange Offer by
giving notice (such notice if given orally, to be confirmed in writing) to you
before 9:00 A.M., New York City time, on the next New York Stock Exchange
trading day after the previously scheduled Expiration Date.
The Issuer expressly reserves the right, in its sole discretion, to
amend or terminate the Exchange Offer, and not to accept for exchange any
Private Notes not theretofore accepted for exchange. The Issuer will give notice
(such notice if given orally, to be confirmed in writing) of any amendment,
termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange
Offer," in the Letter of Transmittal accompanying the Prospectus, or as
specifically set forth herein; provided, however, that in no way will
your general duty to act in good faith and without gross negligence or
willful misconduct be limited by the foregoing.
2. You will establish an account with respect to the Private Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two New York Stock Exchange
trading days after the date of the Prospectus, and any financial
institution that is a participant in the Book-Entry Transfer Facility's
systems may make book-entry delivery of the Private Notes by causing
the Book-Entry Transfer Facility to transfer such Private Notes into
your account in accordance with the Book-Entry Transfer Facility's
procedures for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates
for Private Notes (and confirmation of book-entry transfers of Private
Notes into your account at the Book-Entry Transfer Facility) and any
other documents delivered or mailed to you by or for holders of the
Private Notes, to ascertain whether: (i) the Letters of Transmittal,
certificates and any such other documents are duly executed and
properly completed in accordance with instructions set forth therein
and that such book-entry confirmations are in due and proper form and
contain the information required to be set forth therein, and (ii) the
Private Notes have otherwise been properly tendered. In each case where
the Letter of Transmittal or any other document has been improperly
completed or executed, or where book-entry confirmations are not in due
and proper form or omit certain information, or any of the certificates
for Private Notes are not in proper form for transfer or some other
irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for
fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
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4. With the approval of the Chairman, the President, the Executive Vice
President, Senior Vice President or any of the Vice Presidents of the
Issuer (such approval, if given orally, to be confirmed in writing) or
any other person designated by such an officer in writing, you are
authorized to waive any irregularities in connection with any tender of
Private Notes pursuant to the Exchange Offer.
5. Tenders of Private Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The
Exchange Offer--Procedures for Tendering," and Private Notes shall be
considered properly tendered to you only when tendered in accordance
with the procedures set forth therein. Notwithstanding the provisions
of this paragraph 5, Private Notes which the Chairman, the President,
the Executive Vice President, the Senior Vice President or any of the
Vice Presidents of the Issuer or any other officer of the Issuer
designated by any such person shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if
given orally, shall be confirmed in writing).
6. You shall advise the Issuer with respect to any Private Notes received
subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Private Notes.
7. You shall accept tenders:
(a) in cases where the Private Notes are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative
capacity only when proper evidence of his or her authority so
to act is submitted; and
(c) from persons other than the registered holder of Private Notes
provided that customary transfer requirements, including those
regarding any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Private Notes when so indicated and
as permitted in the Letter of Transmittal and deliver certificates for Private
Notes to the transfer agent for split-up and return any untendered Private Notes
to the holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Issuer will notify you (such notice if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Private Notes properly tendered and you, on behalf of the
Issuer, will exchange such Private Notes for Exchange Notes and cause
such Private Notes to be canceled. Delivery of Exchange Notes will be
made on behalf of the Issuer by you at the rate of $1,000 principal
amount of Exchange Notes for each $1,000 principal
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amount of the Private Notes tendered promptly after notice (such notice
if given orally, to be confirmed in writing) of acceptance of said
Private Notes by the Issuer; provided, however, that in all cases,
Private Notes tendered pursuant to the Exchange Offer will be exchanged
only after timely receipt by you of certificates for such Private Notes
(or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed
Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents. Unless otherwise
instructed by the Issuer, you shall issue Exchange Notes only in
denominations of $1,000 or any integral multiple thereof.
9. Tenders, pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Private Notes tendered
pursuant to the Exchange Offer may be withdrawn at any time on or prior
to the Expiration Date in accordance with the terms of the Exchange
Offer.
10. The Issuer shall not be required to exchange any Private Notes tendered
if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Issuer not to exchange any Private Notes
tendered shall be given (and confirmed in writing) by the Issuer to
you.
11. If, pursuant to the Exchange Offer, the Issuer does not accept for
exchange all or part of the Private Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those
certificates for unaccepted Private Notes (or effect appropriate
book-entry transfer), together with any related required documents and
the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them (or effected such
book-entry transfer).
12. All certificates for reissued Private Notes, unaccepted Private Notes
or for Exchange Notes (other than those effected by book-entry
transfer) shall be forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any concessions,
commissions or other solicitation fees to any broker, dealer,
commercial bank, trust company or other nominee or to engage or use any
person to solicit tenders.
14. As Exchange Agent hereunder, you:
(a) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the Letter of
Transmittal or herein, or as may be subsequently agreed to in
writing by you and the Issuer;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates for the Private Notes
deposited with you pursuant to the Exchange Offer, and will
not be required
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to and will make no representation as to the validity, value
or genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or
liability, unless you shall have been furnished with
reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice,
letter, telegram or other document or security delivered to
you and reasonably believed by you to be genuine and to have
been signed by the proper party or parties;
(e) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as
to its due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith
believe to be genuine or to have been signed or represented by
a proper person or persons;
(f) may rely on and shall be protected in acting upon written or
oral instructions from any officer of the Issuer;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities, and the opinion
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
to be taken by you hereunder in good faith and in accordance
with the opinion of such counsel; and
(h) shall not advise any person tendering Private Notes pursuant
to the Exchange Offer as to whether to tender or refrain from
tendering all or any portion of Private Notes or as to the
market value, decline or appreciation in market value of any
Private Notes that may or may not occur as a result of the
Exchange Offer or as to the market value of the Exchange
Notes;
provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the foregoing.
15. You shall take such action as may from time to time be requested by the
Issuer or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal
and the Notice of Guaranteed Delivery (as described in the Prospectus)
or such other forms as may be approved from time to time by the Issuer
to all persons requesting such documents and to accept and comply with
telephone requests for information relating to the Exchange Offer;
provided, that such information shall relate only to the procedures for
accepting (or withdrawing from) the Exchange Offer. The Issuer will
furnish you with copies of such documents at your request.
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16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to Xxxxxx Xxx, Director-Financial
Accounting of the Issuer (telephone number (000) 000-0000, facsimile
number (000) 000-0000) and such other person or persons as the Issuer
may request, daily (and more frequently during the week immediately
preceding the Expiration Date and if otherwise requested), up to and
including the Expiration Date, as to the aggregate principal amount of
Private Notes which have been duly tendered pursuant to the Exchange
Offer and the items received by you pursuant to the Exchange Offer and
this Agreement, separately reporting and giving cumulative totals as to
items properly received and items improperly received. In addition, you
will also inform, and cooperate in making available to, the Issuer or
any such other person or persons upon oral request made from time to
time prior to the Expiration Date of such other information as it or he
or she reasonably requests. Such cooperation shall include, without
limitation, the granting by you to the Issuer and such person as the
Issuer may request of access to those persons on your staff who are
responsible for receiving tenders, in order to ensure that immediately
prior to the Expiration Date the Issuer shall have received information
in sufficient detail to enable it to decide whether to extend the
Exchange Offer. You shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Private Notes
tendered, the aggregate principal amount of Private Notes accepted and
the identity of any broker-dealer if you have knowledge that such
person is a broker-dealer who will receive Exchange Notes for its own
account in exchange for Private Notes and the aggregate principal
amount of Exchange Notes delivered to each, and deliver said list to
the Issuer.
17. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery received by you shall be preserved by you for a
period of time at least equal to the period of time you preserve other
records pertaining to the transfer of securities, or two years,
whichever is longer, and thereafter shall be delivered by you to the
Issuer. You shall dispose of unused Letters of Transmittal and other
surplus materials as instructed by the Issuer.
18. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any,
borrowed by the Issuer, or any of its subsidiaries or affiliates
pursuant to any loan or credit agreement with you or for compensation
owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached
hereto.
20. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of
them. Any inconsistency between this Agreement, on the one hand, and
the Prospectus and the Letter of Transmittal (as they may be amended
from time to time), on the other hand, shall be resolved in favor of
the latter two documents, except with respect to the duties,
liabilities and indemnification of you as Exchange Agent, which shall
be controlled by this Agreement.
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21. The Issuer covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any loss, liability,
cost or expense, including reasonable attorneys' fees and expenses
arising out of or in connection with any act, omission, delay or
refusal made by you in reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other
instrument or document reasonably believed by you to be valid, genuine
and sufficient and in accepting any tender or effecting any transfer of
Private Notes reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Private Notes; provided, however,
that anything in this Agreement to the contrary notwithstanding, the
Issuer shall not be liable for indemnification or otherwise for any
loss, liability, cost or expense to the extent arising out of your
gross negligence or willful misconduct. In no case shall the Issuer be
liable under this indemnity with respect to any claim against you
unless the Issuer shall be notified by you, by letter or cable or by
facsimile which is confirmed by letter, of the written assertion of a
claim against you or of any other action commenced against you,
promptly after you shall have received any such written assertion or
notice of commencement of action. The Issuer shall be entitled to
participate, at its own expense, in the defense of any such claim or
other action, and, if the Issuer so elects, the Issuer may assume the
defense of any pending or threatened action against you in respect of
which indemnification may be sought hereunder, in which case the Issuer
shall not thereafter be responsible for the subsequently incurred fees
and disbursements of legal counsel for you under this paragraph, so
long as the Issuer shall retain counsel reasonably satisfactory to you
to defend such action, and unless the Issuer is also a party to such
proceeding and you have reasonably determined in good faith that joint
representation would be inappropriate. You understand and agree that
the Issuer shall not be liable under this paragraph for the fees and
expenses of more than one legal counsel for you; provided, however,
that this sentence shall not be construed to prohibit you from engaging
successor counsel to continue to represent you in connection with a
proceeding under this paragraph in the event that you have terminated
counsel initially chosen by you or such counsel has terminated its
representation of you.
22. You shall arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the
Internal Revenue Service. The Issuer understands that you are required,
in certain instances, to deduct thirty-one percent (31%) with respect
to interest paid on the Exchange Notes and proceeds from the sale,
exchange, redemption or retirement of the Exchange Notes from holders
who have not supplied their correct Taxpayer Identification Numbers or
required certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
23. You shall notify the Issuer of the amount of any transfer taxes payable
in respect of the exchange of Private Notes and, upon receipt of a
written approval from the Issuer, shall deliver or cause to be
delivered, in a timely manner to each governmental authority to which
any transfer taxes are payable in respect of the exchange of Private
Notes, your check in the amount of all transfer taxes so payable, and
the Issuer shall reimburse you for the amount of
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any and all transfer taxes payable in respect of the exchange of
Private Notes; provided, however, that you shall reimburse the Issuer
for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of
New York applicable to agreements made and to be performed entirely
within such state, and without regard to conflicts of law principles.
25. This Agreement shall be binding upon and inure solely to the benefit of
each party hereto and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
Without limitation of the foregoing, the parties hereto expressly agree
that no holder of Private Notes or Exchange Notes shall have any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
26. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, and all of which taken
together shall constitute one and the same agreement.
27. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
28. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the
party to be charged.
29. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party,
addressed to it, at its address or telecopy number set forth below:
If to the Issuer, to:
SC International Services, Inc.
000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Executive Vice President and
Chief Financial and Administrative Officer
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with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
If to the Exchange Agent, to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Corporate Trust Trustee Administration
30. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraphs 17, 19, 21, 23 and 24 shall survive the
termination of this Agreement. Upon any termination of this Agreement,
you shall promptly deliver to the Issuer any certificates for Notes,
funds or property then held by you as Exchange Agent under this
Agreement.
31. This Agreement shall be binding and effective as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements herein
provided by signing and returning the enclosed copy.
SC INTERNATIONAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxx
-------------------------------------
Name: Xxxxxx X. Xxx
Title: Authorized Signatory
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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SCHEDULE I
FEE SCHEDULE FOR EXCHANGE AGENT SERVICES
$2,500 plus $500 per extension.
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