EXHIBIT 10.(d)
AGREEMENT
This Agreement (the "Agreement"), dated as of September __, 1996, by and
among Jerry's, Inc., a Florida corporation ("Jerry's"), Jerry's Caterers, Inc.,
a Florida corporation ("Jerry's Caterers"), Meiner's Catering Service, Inc., a
Florida corporation ("Meiner's" and together with Jerry's and Jerry's Caterers,
the "Sellers"), Xxxxxx X. Xxxxxxxxxx, Xx. ("Xxxxxxxxxx"), Xxxxx Xxxxxxxxxx
("PP"), Xxxxx X. Xxxxxx ("KR"), Xxxxx Xxxxxxxxxx ("LP"), Xxxxxxxx Xxxxxxxxxx
("Xxx X."), ALPHA Flight Services, Inc., a Delaware corporation ("AFS"), ALPHA
Flight Services Florida, Inc., a Delaware corporation (the "Buyer"), and ALPHA
Overseas Holdings Limited, a United Kingdom corporation (the "Guarantor").
WHEREAS, the Sellers, Pendergast, AFS and the Buyer are parties to an
Asset Purchase Agreement, dated as of February 2, 1995 (the "APA"), pursuant to
which, among other things, the Buyer purchased from the Sellers all of the
property and assets which were owned by the Sellers in connection with the
airline catering business of the Sellers at the Miami International Airport and
the Orlando International Airport.
WHEREAS, the Buyer and Xxxxxxxxxx are parties to a Management Agreement,
dated February 2, 1995 (the "Management Agreement"), pursuant to which, among
other things, Xxxxxxxxxx agreed to provide certain services to the Buyer.
WHEREAS, the Buyer, the Sellers, Pendergast, PP, KR, LP and Xxx X.
(collectively, the Sellers, Pendergast, PP, KR, LP and Xxx X., the "Selling
Group") are parties to a Non-Competition Agreement dated February 2, 1995 (the
"Non-Compete Agreement") pursuant to which, among other things, the Selling
Group and their Affiliates (as defined in the Non-Compete Agreement), agreed
not to compete with the Buyer in certain geographical territories.
WHEREAS, Guarantor has executed and delivered a certain Guaranty
Agreement, dated February 2, 1995 (the "Guaranty") in favor of Sellers with
respect to certain obligations of Buyer under the APA.
WHEREAS, AFS and the Buyer may enter into an asset purchase agreement with
Flying Food Fair Inc., its affiliates or a company or companies controlled,
directly or indirectly, by Xxx Xxx Gin (collectively, "FFF"), pursuant to which
Buyer, among other things, may sell its airline catering business at the Miami
International Airport and the Orlando International Airport to FFF (such
transaction, the "Sale of the Business").
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements hereinafter set forth, and intending to be legally
bound hereby, the parties hereto agree, subject to the conditions herein
contained, as follows:
1. DEFINITIONS. Unless otherwise specified, capitalized terms not herein
defined shall have the meanings ascribed to such terms in the APA.
2. APA. Effective on the closing of the Sale of the Business, the APA shall
be amended as follows:
a. Section 1.1 of the APA is amended by adding the following
definitions in their proper alphabetical order:
"FFF" shall mean Flying Food Fair Inc., its affiliates or a
company or companies controlled, directly or indirectly, by Xxx Xxx Gin.
"SALE OF THE BUSINESS" shall mean the sale by the Buyer of its
airline catering business at the Miami International Airport and the Orlando
International Airport to FFF.
b. Section 1.1 of the APA is further amended by amending and
restating the following definitions in the manner set forth below:
"MIAMI FACILITY" shall mean the airline catering operations
of the Sellers at the Miami International Airport, in Miami, Florida. With
respect to Section 2.5 only, the "Miami Facility" shall mean the airline
catering operations acquired by FFF from the Buyer pursuant to the Sale of the
Business at the Miami International Airport in Miami, Florida.
"ORLANDO FACILITY" shall mean the airline catering
operations of the Sellers at the Orlando International Airport in Orlando,
Florida. With respect to Section 2.5 only, the "Orlando Facility" shall mean
the airline catering operations acquired by FFF from the Buyer pursuant to the
Sale of the Business at the Orlando International Airport in Orlando, Florida.
c. Section 2.5 of the APA is deleted in its entirety, and a new
Section 2.5 shall be inserted in its place as follows:
"Section 2.5 ADDITIONAL PAYMENTS.
(a) Immediately after the closing of the Sale of the Business,
the Buyer will pay or cause to be paid to the Sellers $1,000,000.
(b) Within 28 days following the end of the Measuring Period (as
defined below), the Buyer will pay or cause to be paid to the Sellers up to
$1,000,000 (the "Second Payment"), which amount shall be based on the aggregate
gross revenues (excluding sales tax revenues and airport fees) derived from the
Miami Facility and the Orlando Facility (as conclusively determined from the
books of account and records of FFF) ("Sales") from
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the date of the closing of the Sale of the Business to such sixth month
anniversary (or such other date shortly thereafter as may be necessary for
accounting purposes since FFF keeps its records on a monthly basis) (the
"Measuring Period"), all as set forth below:
SALES DURING MEASURING PERIOD SECOND PAYMENT AMOUNT
----------------------------- ---------------------
$3,650,000 or greater $1,000,000
$3,400,000 to $3,649,999 $900,000
$3,150,000 to $3,399,999 $800,000
$2,900,000 to $3,149,999 $650,000
$2,899,999 or less $500,000
For Sales that fall between a range, the Second Payment Amount will be
calculated based on a linear interpolation. For example, if Sales are
$3,524,999.50, the Sellers will receive $950,000. In no event shall the second
payment be less than $500,000. Buyer shall arrange for Sellers to receive
monthly reports regarding sales during the six month period.
Notwithstanding the above, to the extent that Sales during the Measuring
Period are less than $3,650,000 because of (i) an increase in the prices
charged to Customers that is not attributable to an increase in costs incurred
by FFF with respect to the provision of such Airline Catering Services or (ii)
a material deterioration in service levels provided by FFF during the Measuring
Period in comparison to the service levels provided by the Buyer immediately
prior to such period (each of (i) and (ii), a "Controllable Event"), then the
Sales during the Measuring Period shall be upwardly adjusted to compensate for
Sales lost as a result of such Controllable Event. To the extent that Sales
during the Measuring Period at the Orlando Facility that are attributable to
any existing airline customer (other than Leisure International) at the Orlando
Facility in any month (in the Measuring Period) are less than their currently
anticipated levels due to the fact that such airlines have transferred flights
from the Orlando International Airport to the Xxxxxxx Xxxxxxx International
Airport, such transferred Sales (at Xxxxxxx Xxxxxxx International Airport) will
be credited back in calculating Sales pursuant to this Section 2(b). Any
dispute with respect to the calculation of Sales shall be finally determined
by Price Waterhouse LLP.
(c) On March 2, 1998, the Buyer will pay or cause to be paid to
the Sellers $1,000,000.
(d) The maximum amount payable to the Sellers pursuant to this
Section 2.5 shall be $3,000,000."
3. REASONABLE BEST EFFORTS: SALE OF THE BUSINESS. From and after the date
hereof, Xxxxxxxxxx shall use reasonable efforts to obtain as soon as possible
consents for the Sale of the Business from all current Customers at the Miami
Facility and the Orlando Facility. The parties hereto agree that nothing
contained in this Agreement obligates AFS or the Buyer to
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pursue any Sale of the Business and AFS and the Buyer may abandon or not
proceed with any transaction with respect to the Sale of the Business.
4. MANAGEMENT AGREEMENT. As of the closing of the Sale of the Business, the
Management Agreement shall terminate and all obligations of either party
thereunder shall terminate, except for the obligations under Sections 9, 10 and
11. Effective upon such termination, Xxxxxxxxxx shall be deemed to have resigned
(without compensation) all appointments he holds as an officer, employee or
agent of the Buyer.
5. NON-COMPETE AGREEMENT. As of the close of the Sale of the Business, the
Non-Compete Agreement will remain in full force and effect and enforceable by
the Buyer. Notwithstanding any provision contained in the Non-Compete Agreement
to the contrary, as of the close of the Sale of the Business, the parties hereto
agree that the benefits of the Non-Compete Agreement with respect to the Airline
Catering Services at the Miami International Airport and the Orlando
International Airport shall be enforceable by both FFF and the Buyer. In
addition, both the Buyer and any subsequent purchaser of the Buyer's business
with respect to its operations at Xxxxxxx shall have the right to enforce the
Non-Compete Agreement with respect to Xxxxxxx.
6. GUARANTY. As of the close of the Sale of the Business, the Guaranty
shall be modified so that the Obligations (as defined in the Guaranty) shall
include the obligations of Buyer under Section 2.5 of the APA as modified by
this Agreement. All other provisions of the Guaranty will remain in full force
and effect and enforceable by Sellers.
7. REPRESENTATIONS AND WARRANTIES OF THE SELLING GROUP.
Each of the Selling Group, as to itself, represents and warrants to
AFS, the Buyer and the Guarantor, and agrees, as follows:
a. ORGANIZATION AND CORPORATE POWER. Each of the Sellers is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Florida. Each Seller has all requisite legal and corporate
power to execute and deliver this Agreement and to carry out and perform its
obligations under the terms of this Agreement.
b. AUTHORIZATION. All corporate action on the part of each of the
Sellers necessary for the authorization, execution, delivery and performance of
this Agreement have been taken. This Agreement has been duly and validly
executed and delivered by each Seller, Xxxxxxxxxx, PP, KR, LP and Xxx X., and
constitutes a valid and binding agreement of such person enforceable against it
in accordance with its terms. The execution of this Agreement and the
performance by each such person of its obligations hereunder do not conflict
with or violate any agreement to which such person is a party or is bound or any
law applicable to such person. No consent of or filing with any third party
(including
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governmental authorities) is required for such person to execute and deliver
this Agreement and effect the transactions contemplated by this Agreement.
8. REPRESENTATIONS AND AGREEMENTS OF AFS AND THE BUYER. Each of AFS, the
Buyer and the Guarantor, as for itself, represents and warrants to the Selling
Group as follows:
a. ORGANIZATION AND POWER. Each of AFS, the Buyer and the Guarantor is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation. Each of AFS, the Buyer and the Guarantor has
all requisite legal and corporate power to execute and deliver this Agreement,
and to carry out and perform its obligations under the terms of this Agreement.
b. AUTHORIZATION. All corporate action on the part of each of AFS, the
Buyer and the Guarantor necessary for the authorization, execution, delivery and
performance of this Agreement have been taken. This Agreement has been duly and
validly executed and delivered by each of AFS, the Buyer and the Guarantor,
and constitutes a valid and binding agreement of such person enforceable
against it in accordance with its terms. The execution of this Agreement and
the performance by each of AFS, the Buyer and the Guarantor of its obligations
hereunder do not conflict with or violate any agreement to which such person is
a party or is bound or any law applicable to it. No consent of or filing with
any third party (including governmental authorities) is required for each of
AFS, the Buyer and the Guarantor to execute and deliver this Agreement and
effect the transactions contemplated by this Agreement.
9. EFFECTIVENESS: INCONSISTENCIES. Until the closing of the Sale of the
Business, the APA, the Management Agreement and the Non-Compete Agreement shall
remain in full force and effect. After the closing of the Sale of the Business,
the APA, the Management Agreement and the Non-Compete Agreement shall remain in
full force and effect, except as modified herein. After the closing of the Sale
of Business, to the extent any existing provision of the APA, the Management
Agreement or the Non-Compete Agreement is inconsistent herewith, such provision
is hereby amended to be consistent herewith; provided, that no actions
inconsistent with the provisions of this Agreement shall be undertaken pursuant
to the provisions of the APA, the Management Agreement and the Non-Compete
Agreement by any party hereto.
10. WAIVER OF CERTAIN CLAIMS. In consideration of this Agreement, the
Selling Group waives any claims it may have that the execution of the definitive
agreement for the Sale of the Business and the consummation of the transactions
contemplated thereby violate, or constitute a breach under the provisions of the
APA, the Management Agreement or the Non-Compete Agreement. The foregoing waiver
shall not be construed to be a consent to any sale by the Buyer of its Miami and
Orlando airline catering business other than a Sale of the Business to FFF in
accordance with the terms of this Agreement. Nothing contained herein shall be
considered as evidence or an admission that any such waiver is required.
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11. TERMINATION. This Agreement shall terminate if AFS or the Buyer shall
notify the Seller Group (by notice given to Xxxxxxxxxx or Jerry's) in writing
that the closing of the Sale of the Business has been abandoned, or, in any
event, the closing of the Sale of the Business has not occurred on or prior to
December 31, 1996. Upon such termination of this Agreement, the APA, the
Management Agreement and the Non-Compete Agreement shall remain in full force
and effect pursuant to the terms under each such agreement, without giving
effect to the provisions contained in Sections 2, 4 or 5 herein. If this
Agreement terminates, nothing contained herein shall be used as evidence
against any party hereto or their affiliates in any dispute that may arise
under the APA, the Management Agreement, the Non-Compete Agreement or any
related agreements or arrangements.
12. BINDING EFFECT: ASSIGNMENT. This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the parties
hereto and their successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties; provided, however, that FFF shall be a direct beneficiary of, and shall
be entitled to enforce, the provisions of Section 5 herein.
13. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Delaware (regardless of the laws that might otherwise govern under
applicable principles of conflicts of law) as to all matters, including but not
limited to matters of validity, construction, effect, performance and remedies.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
JERRY'S, INC.
By: /s/ [ILLEGIBLE]
--------------------------------
Name:
Title:
JERRY'S CATERERS, INC.
By: /s/ [ILLEGIBLE]
--------------------------------
Name:
Title:
MEINER'S CATERING SERVICE, INC.
By: /s/ [ILLEGIBLE]
--------------------------------
Name:
Title:
/s/ [ILLEGIBLE]
--------------------------------
Xxxxxx X. Xxxxxxxxxx, Xx.
ALPHA FLIGHT SERVICES FLORIDA, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: XXXX XXXXXXXX
Title:
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ALPHA FLIGHT SERVICES, INC.
By: /s/ XXXX XXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxx
Title:
ALPHA OVERSEAS HOLDINGS LIMITED
By: /s/ [ILLEGIBLE]
--------------------------------
Name: [ILLEGIBLE]
Title:
/s/ XXXXX XXXXXXXXXX
------------------------------------
Xxxxx Xxxxxxxxxx
/s/ XXXXX X. XXXXXX
------------------------------------
Xxxxx X. Xxxxxx
/s/ XXXXX XXXXXXXXXX
------------------------------------
Xxxxx Xxxxxxxxxx
/s/ XXXXXXXX XXXXXXXXXX
------------------------------------
Xxxxxxxx Xxxxxxxxxx
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