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Exhibit 10.4
As of August 25, 1997
DEPOSITARY AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
SC International Services Inc. (the "Company") proposes to
make a tender offer (the "Offer") to purchase any and all of its outstanding 13%
Senior Subordinated Notes due 2005 (the "Notes") from any and all registered
holders thereof (the "Holders"). In conjunction with the Offer, the Company is
soliciting (the "Solicitation") consents (the "Consents") of Holders to certain
proposed amendments to the Indenture, dated as of September 15, 1995 (the
"Indenture"), between the Company, the Guarantors (as defined in the Indenture)
and The Bank of New York, as trustee, pursuant to which the Notes were issued.
The terms and conditions of the Offer and Solicitation as currently contemplated
are set forth in an Offer to Purchase and Consent Solicitation, dated August 25,
1997 (the "Offer to Purchase"), proposed to be distributed to all Holders.
The Company hereby appoints The Bank of New York to act as
depositary (the "Depositary") in connection with the Offer and Solicitation.
References hereinafter to "you" shall refer to The Bank of New York.
The Offer and Solicitation are expected to be commenced by the
Company on or about August 25, 1997. The Consent and Letter of Transmittal
accompanying the Offer to Purchase (or in the case of book entry securities, the
ATOP system) is to be used by the Holders to tender the Notes, and deliver the
Consents, and contains instructions with respect to the delivery of certificates
for Notes.
The Offer and Solicitation shall expire at 5:00 p.m., New York
City time, on September 24, 1997, unless extended (the "Expiration Date").
Subject to the terms and conditions set forth in the Offer to Purchase, the
Company expressly reserves the right to extend the Offer and Solicitation from
time to time and may extend the Offer and Solicitation by giving oral (confirmed
in writing) or written notice to you before 9:00 A.M., New York City time, on
the business day following the previously scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate
the Offer and Solicitation, and not to accept any Notes not theretofore
accepted, upon the occurrence of any of the conditions, or, in other cases, the
failure to occur of certain of the conditions of the Offer
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specified in the Offer to Purchase under the caption "Principal Terms of the
Tender Offer and Consent Solicitation -- Conditions to the Offer." The Company
will give oral (confirmed in writing) or written notice of any amendment,
termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Depositary, 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 Offer to Purchase and the related Consent and
Letter of Transmittal or as specifically set forth herein; provided however,
that in no way will your general duty to act in good faith be discharged by the
foregoing.
2. You will establish an account with respect to the Notes at
The Depositary Trust Company (the "Book-Entry Transfer Facility") for purposes
of the Offer and Solicitation within two business days after the date of the
Offer to Purchase, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Notes
by causing the Book-Entry Transfer Facility to transfer such Notes into your
account in accordance with the Book-Entry Transfer Facility's procedure for such
transfer.
3. You are to examine each of the Consents and Letters of
Transmittal and certificates for Notes (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for Holders to ascertain whether: (i) the
Consents and Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein and (ii) the Notes have otherwise been properly tendered and the
Consents delivered. In each case where the Letter of Transmittal or any other
document has been improperly completed or executed or any of the certificates
for Notes are not in proper form for transfer or some other irregularity in
connection with the acceptance of the Offer or delivery of a Consent 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.
4. With the approval of the President, Senior Vice President,
Executive Vice President, or any Vice President of the Company or any other
authorized employee of the Company (such approval, if given orally, to be
confirmed in writing) or any other party designated by such an officer in
writing, you are authorized to waive any irregularities in connection with any
tender of Notes pursuant to the Offer or delivery of Consents pursuant to the
Solicitation.
5. Tenders of Notes and deliveries of Consents may be made
only as set forth in the Consent and Letter of Transmittal and in the section of
the Offer to Purchase captioned "Principal Terms of the Tender Offer and the
Consent Solicitation -- Procedures for Tendering Notes and Delivering Consents,"
and Notes shall be considered properly tendered to you, and
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Consents properly delivered, only when tendered or delivered in accordance with
the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Notes or
Consents which the President, Senior Vice President, Executive Vice President,
or any Vice President of the Company or any other authorized employee of the
Company shall approve as having been properly tendered or delivered shall be
considered to be properly tendered or delivered (such approval, if given orally,
shall be confirmed in writing).
6. You shall advise the Company with respect to any Consents
received after the Expiration Date and any Notes received subsequent to the
Expiration Date and accept its instructions with respect to disposition of such
Consents and Notes.
7. You shall accept tenders of Notes and deliveries of
Consents:
(a) in cases where the 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
Consent and 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 Notes
provided that customary transfer requirements, including any applicable transfer
taxes, are fulfilled.
You shall accept partial tenders of Notes where so
indicated and as permitted in the Consent and Letter of Transmittal and deliver
certificates for Notes to the transfer agent for split-up and return any
untendered 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 Offer.
8. Upon satisfaction or waiver by the Company of all of the
conditions to the Offer, the Company will notify you (such notice if given
orally, to be confirmed in writing) of its acceptance for payment, at any time
or from time to time, of any or all Notes properly tendered. Upon receipt of
payment from the Company, you shall promptly thereafter make payment of the
Consent Payment and Tender Offer Consideration (as such terms are defined in the
Offer to Purchase); provided, however, that in all cases, such payment with
respect to Notes tendered pursuant to the Offer will be made only after timely
receipt by you of certificates for such Notes (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility), a properly
completed and duly executed Consent and Letter of Transmittal (or facsimile
thereof) with any required signature guarantees and any other required
documents.
9. Tenders of Notes and deliveries of Consents pursuant to the
Offer and Solicitation are irrevocable.
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10. The Company shall not be required to purchase any Notes
tendered if any of the conditions set forth in the Offer to Purchase are not
met. Notice of any decision by the Company not to accept any Notes tendered
shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Offer, the Company does not accept all
or part of the Notes tendered because of an invalid tender, the occurrence of
certain other events set forth in the Offer to Purchase under the caption
"Principal Terms and Conditions of the Tender Offer and Consent Solicitation --
Conditions of the Tender Offer and Consent Solicitation" or otherwise, you shall
as soon as practicable after the expiration or termination of the Offer return
those certificates for unaccepted Notes (or effect appropriate book-entry
transfer), together with any related required documents and the Consents and
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them.
12. All certificates for reissued Notes or unaccepted Notes
shall be forwarded by first-class certified mail, return receipt requested.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other persons or to engage or utilize any person to solicit tenders.
14. As Depositary hereunder you:
(a) shall have no duties or obligations other than
those specifically set forth therein or as may be subsequently agreed to in
writing by you and the Company;
(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 or the Notes represented thereby deposited with you
pursuant to the Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Offer or
Solicitation;
(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 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
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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 Company;
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the advice or 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 advice or opinion of such counsel; and
(h) shall not advise any person tendering Notes or
delivering Consents pursuant to the Offer or Solicitation as to the wisdom of
making such tender or delivery or as to the market value or decline or
appreciation in market value of any Notes.
15. You shall take such action as may from time to time be
requested by the Company or its counsel (and such other action as you may
reasonably deem appropriate) to furnish copies of the Offer to Purchase, Consent
and Letter of Transmittal and the Notice of Guaranteed Delivery (as defined in
the Offer to Purchase) or such other forms as may be approved from time to time
by the Company, to all persons requesting such documents and to accept and
comply with telephone requests for information relating to the Offer and
Solicitation; provided that such information shall relate only to the procedures
for accepting (or withdrawing from) the Offer or Solicitation. The Company will
furnish you with copies of such documents at your request. All other requests
for information relating to the Offer shall be directed to the Dealer Manager
(as defined in the Offer to Purchase).
16. You shall advise by facsimile transmission or telephone,
and promptly thereafter confirm in writing to the Treasurer of the Company and
such other person or persons as he or she 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 number
of Consents received and Notes tendered pursuant to the Offer and Solicitation
and the items received by you pursuant to 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 Company 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 Company and such persons as the Company may request
of access to those persons on your staff who are responsible for receiving
Consents and Notes, in order to ensure that immediately prior to the Consent
Date and the Expiration Date the Company shall have received information in
sufficient detail to enable it to decide whether to extend such dates. You shall
prepare a final list of all persons whose Consents are received and Notes were
accepted for payment, the aggregate principal amount of Notes tendered, the
aggregate principal amount of Notes accepted and deliver said list to the
Company.
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17. Consents and Letters of Transmittal and Notices of
Guaranteed Delivery shall be stamped by you as to the date and the time of
receipt thereof and 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. You shall dispose of unused Consents and Letters of
Transmittal and other surplus materials by returning them to the Company.
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
in relation to the Offer and Solicitation by reasons of amounts, if any,
borrowed by the Company, 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 Depositary hereunder, you shall
be entitled to $2,500 plus $500 per extension of the Offer.
20. You hereby acknowledge receipt of the Offer to Purchase
and the Consent and Letter of Transmittal and further acknowledge that you have
examined each of them. Any inconsistency between this Agreement, on the one
hand, and the Offer to Purchase and the Consent and 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 Depositary, which shall be controlled
by this Agreement.
21. The Company covenants and agrees to indemnify and hold you
harmless in your capacity as Depositary 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
Consent or effecting any transfer of Notes reasonably believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept any
tenders or Consents or effect any transfer of Notes; provided, however, that the
Company shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your negligence or
willful misconduct. In no case shall the Company be liable unless the Company
shall be notified by you, by letter or by facsimile 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 Company shall be entitled to
participate at its own expense in the defense of any such claim or other action,
and, if the Company so elects, the Company shall assume the defense of any suit
brought to enforce any such claim. In the event that the Company shall assume
the defense of any such suit, the Company shall not be liable for the fees and
expense of any additional counsel thereafter retained by you so long as the
Company shall retain counsel reasonably satisfactory to you to defend such suit.
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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 Company understands that you are required to deduct 31% on
payments to holders who have not supplied their correct Taxpayer Identification
Number or required certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
23. You 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 tender of Notes, your check in the amount of all transfer taxes
so payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the tender of Notes; provided, however,
that you shall reimburse the Company 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 Depositary
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, and shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
25. 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.
26. 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.
27. 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. This Agreement may not be modified orally.
28. 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:
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If to the Company:
SC International Services, Inc.
000 X. Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Executive Vice President and Chief
Financial and Administrative Officer
Copies to:
Xxxx, Scholer, Fierman,
Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
If to the Depositary:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 19, 21 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for Notes, funds or property then held by you as
Depositary under this Agreement.
30. This Agreement shall be binding and effective as of the
date hereof.
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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 Depositary
By: /s/ Xxxxxx Xxxxxx
-------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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