EX-10.1



 






Exhibit 10.1




EXECUTION COPY




FIRST AMENDMENT TO CREDIT AGREEMENT




     THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), is made and entered into as of
April 15, 2005 (the “Effective Date”), by and among VOLUME SERVICES AMERICA, INC. (“VSA”), VOLUME
SERVICES, INC. (“VS”), and SERVICE AMERICA CORPORATION (“SAC”) (VSA, VS and SAC are sometimes
collectively referred to herein as the “Borrowers” and individually as a “Borrower”), CENTERPLATE,
INC. (“Holdings”), the Lenders party to the Credit Agreement, WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender and Syndication Agent, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation, for itself, as a Lender, and as Administrative Agent for the Lenders parties from time
to time to the Credit Agreement described below.



W I T N E S S E T H:




     WHEREAS, the Borrowers, Holdings, the Lenders and the Administrative Agent are parties to that
certain Credit Agreement, dated as of April 1, 2005 (the “Credit Agreement”; capitalized terms used
herein and not otherwise defined herein shall have the meanings given such terms in the Credit
Agreement), pursuant to which the Lenders have agreed to make certain loans and other extensions of
credit to Borrowers upon the terms and conditions set forth therein; and



     WHEREAS, Borrowers, the Lenders and the Administrative Agent desire to make certain amendments
to the Credit Agreement in accordance with, and subject to the terms and conditions set forth in,
this Amendment.



     NOW, THEREFORE, in consideration of the premises, the covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree, subject to Section 6, as follows.



     1. Amendments to the Credit Agreement. Subject to the terms and conditions of this
Amendment, the Credit Agreement shall be amended as follows:




     (a) The cover page of the Credit Agreement shall be deleted in its entirety and shall
be replaced in its entirety by the cover page attached as Exhibit A to this
Amendment.




     (b) Section 1.1 of the Credit Agreement, Defined Terms, shall be
amended by deleting each of the definitions of “Activation Event,” “Activation
Notice,” “CapEx Funding Account,” “Qualified Assignee,” and “Related
Person,” and substituting in lieu thereof the following:




     “Activation Event” has the meaning ascribed to it in Section
5.17(d).




     “Activation Notice” has the meaning ascribed to it in Section
5.17(d).



 









 






     “CapEx Funding Account” shall mean a segregated deposit or brokerage
account established by the Borrower Representative with Keybank National Association
or any other bank acceptable to the Administrative Agent, in which the
Administrative Agent has a first priority perfected security interest on behalf of
the Secured Parties pursuant to a Control Agreement to which the Borrower
Representative, the Administrative Agent and Keybank National Association (or such
other bank) are a party, and from which funds may be deposited and withdrawn in
accordance with Section 2.22.




     “Qualified Assignee” shall mean (a) any Lender, any Affiliate of any
Lender and, with respect to any Lender that is an investment fund that invests in
commercial loans, any other investment fund that invests in commercial loans and
that is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor, and (b) any commercial bank, savings and loan
association or savings bank or any other entity which is an
“accredited investor”(as
defined in Regulation D under the Securities Act of 1933) which extends credit or
buys loans as one of its businesses, including insurance companies, mutual funds,
lease financing companies and commercial finance companies, in each case, if such
Person is to have a Revolving Credit Commitment which has a rating of BBB or higher
from S&P and a rating of Baa2 or higher from Moody’s at the date that it becomes a
Lender and which, through its applicable lending office, is capable of lending to
the Borrowers without the imposition of any withholding or similar taxes; provided
that no Person determined by Administrative Agent to be acting in the capacity of a
vulture fund or distressed debt purchaser shall be a Qualified Assignee, and no
Person or Affiliate of such Person (other than a Person that is already a Lender)
holding any of the IDS Securities or Subordinated Debt or Capital Stock issued by
any Loan Party shall be a Qualified Assignee (other than GECC or any Affiliate of
GECC).




     “Related Person” has the meaning ascribed to it in Section
5.17(h).”




     (c) Any instances of “Subordinated Notes Indenture” or “Holdings Subordinated Notes
Indenture” appearing in the Credit Agreement shall be amended by deleting such references
and substituting in lieu thereof “Holdings Subordinated Note Indenture” in each such
instance.




     (d) Section 1.1 of the Credit Agreement, Defined Terms, shall be
further amended by inserting the following new definition of “Securitization” in
appropriate alphabetical order:




     “Securitization” means a public or private offering by a Lender or any
of its direct or indirect Affiliates or their respective successors and assigns, of
securities which represent an interest in, or which are collateralized, in whole or
in part, by the Loans and Loan Documents.”



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     (e) Section 2.10(f) of the Credit Agreement, Mandatory Payments, shall
be amended by deleting the first sentence and part of the second sentence and substituting
in lieu thereof the following:




     “Upon delivery of the annual audited financial statements of Holdings and its
Subsidiaries pursuant to Section 5.4(c) for each Annual Fiscal Period,
commencing with the Annual Fiscal Period 2005, the Borrowers shall prepay the
Obligations by an amount equal to 50% of the Annual Excess Cash Flow for such Annual
Fiscal Period;”




     (f) Section 2.12(a)(ii) of the Credit Agreement, Change in Legality,
shall be amended by deleting the reference to “such Revolving Lender” in such sentence and
substituting in lieu thereof “such Lender.”




     (g) Section 2.14(a) of the Credit Agreement, Application and Allocation of
Payments, shall be amended by deleting the fourth sentence of such section and
substituting in lieu thereof the following:




     “Upon the occurrence and during the continuation of an Event of Default,
payments shall be applied to amounts then due and payable in the following order:
first, to Fees (excluding the Commitment Fee and Letter of Credit
Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder;
second, to interest on the Swingline Loan; third, to principal
payments on the Swingline Loan; fourth, to the Commitment Fee, the Letter of
Credit Participation Fee and interest on the other Loans, ratably in proportion to
the interest accrued as to each Loan; fifth, to principal payments on the
other Loans and to provide cash collateral for Letter of Credit Obligations in the
manner described in Section 2.18, ratably to the aggregate, combined principal
balance of the other Loans and outstanding Letter of Credit Obligations;
sixth, to all other Obligations, including expenses of Lenders to the extent
reimbursable under Section 9.4; and seventh, the remaining balance thereof,
if any, shall be returned to the Borrower Representative, except in the case where
the maturity date of the Obligations have been accelerated pursuant to Article VII
or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any
Obligations remain outstanding.”




     (h) Section 8.1(a) of the Credit Agreement, Assignment and
Participations, shall be amended by deleting the first two sentences of such Section and
substituting in lieu thereof the following:




     “Subject to the terms of this Section 8.1, any Lender may make an assignment to
a Qualified Assignee of, or sell participations in, at any time or times, the Loan
Documents, Loans, Letter of Credit Obligations and any Commitment or any portion
thereof or interest therein, including any Lender’s rights, title, interests,
remedies, powers or duties thereunder. Any assignment by a Lender shall: (i)
require the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed with respect to a Qualified Assignee and which
consent shall not be required with respect to a Lender or an



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assignment to an Affiliate of a Lender) and the execution of an assignment
agreement (an “Assignment and Acceptance Agreement”) substantially in the
form attached hereto as Exhibit B and otherwise in form and substance reasonably
satisfactory to, and acknowledged by, the Administrative Agent; (ii) be conditioned
on such assignee Lender representing to the assigning Lender and the Administrative
Agent that it is purchasing the applicable Loans to be assigned to it for its own
account, for investment purposes and not with a view to the distribution thereof;
(iii) after giving effect to any such partial assignment, the assignee Lender shall
have Commitments in an amount at least equal to $2,000,000 in the case of Revolving
Credit Commitments and, with respect to Term Loans, $1,000,000 (or such lesser
amounts as approved by the Administrative Agent and the Borrower Representative) and
the assigning Lender shall have retained Commitments in an amount at least equal to
$2,000,000 in the case of Revolving Credit Commitments and, with respect to Term
Loans, $1,000,000 (or such lesser amounts as approved by the Administrative Agent
and the Borrower Representative); (iv) include a payment to the Administrative Agent
of an assignment fee of $3,500 (which assignment fee shall not be payable in
connection with an assignment to an Affiliate of a Lender); and (v) so long as no
Event of Default has occurred and is continuing, require the consent of Borrower
Representative, which shall not be unreasonably withheld or delayed and which
consent shall not be required with respect to assignments to a Lender or an
assignment to an Affiliate of a Lender; provided, that, notwithstanding the
foregoing in this clause (v), the consent of Borrower Representative (not to be
unreasonably withheld or delayed and solely prior to an Event of Default) shall be
required for any assignment of Revolving Credit Commitments to a Lender or an
Affiliate of a Lender which holds only Term Loans prior to giving effect to such
assignment.”




     (i) Section 9.9 of the Credit Agreement, Confidentiality, shall be
amended by relettering “(f)” as “(i)” and inserting the following between the “;” at the end
of Section 9.9(e) and “or”:




     “(f) to an investor or prospective investor in a Securitization that agrees
that its access to information regarding the Loan Parties, the Loans and Loan
Documents is solely for purposes of evaluating an investment in a Securitization and
that has agreed to comply with the covenant set forth in this Section 9.9;
(g) to a trustee, collateral manager, servicer, backup servicer, noteholder or
secured party in a Securitization in connection with the administration, servicing
and reporting on the assets serving as collateral for a Securitization that has
agreed that has agreed to comply with the covenant set forth in this Section
9.9; (h) to a nationally recognized rating agency that requires access to
information regarding the Loan Parties, the Loans and Loan Documents in connection
with rating issued with respect to a Securitization that has agreed to comply with
the covenant set forth in this Section 9.9;”




     (j) Disclosure Schedules 1.1(b), (c) and (d) to the Credit Agreement shall be
amended by deleting each such Schedule in its entirety and replacing it with the revised



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Disclosure Schedules 1.1(b), (c) and (d) in each case in the form attached
hereto as Disclosure Schedules 1.1(b), (c) and (d).



     2. No Other Amendments. Except for the amendments expressly set forth and referred to
in Section 1 hereof, the Credit Agreement shall remain unchanged and in full force and
effect. Nothing in this Amendment is intended or shall be construed to be a novation of any
Obligations or any part of the Credit Agreement or any of the other Loan Documents or to affect,
modify or impair the continuity or perfection of the Administrative Agent’s Liens under the
Collateral Documents.



     3. Representations and Warranties. To induce the Lenders and the Administrative Agent
to enter into this Amendment, each of the Borrowers hereby warrants, represents and covenants to
and with to the Lenders and the Administrative Agent that: (a) this Amendment has been duly
authorized, executed and delivered by such Borrower; (b) after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing as of this date; and (c) after giving
effect to this Amendment, all of the representations and warranties made by such Borrower in the
Credit Agreement are true and correct in all material respects on and as of the date of this
Amendment (except to the extent that any such representations or warranties expressly referred to a
specific prior date and except for changes therein expressly permitted or expressly contemplated by
the Credit Agreement or the other Loan Documents). Any breach in any material respect by any
Borrower of any of its representations, warranties and covenants contained in this Section
3 shall be an Event of Default under the Credit Agreement.



     4. Ratification and Acknowledgment. Each of the Borrowers hereby ratifies and
reaffirms each and every term, covenant and condition set forth in the Credit Agreement and all
other Loan Documents executed or delivered by such Borrower.



     5. Waiver, Release and Disclaimer. To induce the Lenders and the Administrative Agent
to enter into this Amendment, each of the Borrowers hereby waives and releases any claim, defense,
demand, action or suit of any kind or nature whatsoever against the Lenders or the Administrative
Agent arising on or prior to the date of this Amendment in connection with the Credit Agreement or
any of the other Loan Documents, or any of the transactions contemplated thereunder, except that
this Section 5 shall not waive or release any of the Lenders’ or Administrative Agent’s
contractual obligations under the Credit Agreement or any of the other Loan Documents.



     6. Conditions to Effectiveness. The amendments of the Credit Agreement set forth in
Section 1 of this Amendment shall not become effective unless and until the Administrative
Agent has received one or more counterparts of this Amendment, duly executed, completed and
delivered by Borrowers, the Required Lenders and the Administrative Agent.



     7. Reimbursement of Expenses. The Borrowers hereby jointly and severally agree to
reimburse the Administrative Agent on demand for all reasonable fees and reasonable out-of-pocket
costs and expenses (including without limitation the reasonable and actual fees and expenses of its
counsel) incurred by the Administrative Agent in connection with the negotiation, documentation and
consummation of this Amendment and the other documents executed in connection herewith and the
transactions contemplated hereby.



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     8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SAID STATE
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.



     9. Severability of Provisions. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other jurisdiction. To the
extent permitted by applicable law, each Borrower hereby waives any provision of law that renders
any provision hereof prohibited or unenforceable in any respect.



     10. Counterparts. This Amendment may be executed in any number of several
counterparts, all of which shall be deemed to constitute but one original and shall be binding upon
all parties, their successors and permitted assigns.



     11. Entire Agreement. The Credit Agreement as amended through this Amendment embodies
the entire agreement between the parties hereto relating to the subject matter thereof and
supersedes all prior agreements, representations and understandings, if any, relating to the
subject matter thereof.



     12. No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Amendment. In the event an ambiguity or question of intent or
interpretation arises, this Amendment shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Amendment.



[Remainder of page intentionally blank; next page is signature page]




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     IN WITNESS WHEREOF, the parties have caused this First Amendment to Credit Agreement to
be duly executed by their respective officers or representatives thereunto duly authorized, as of
the date first above written.



	 	 	 	 	 
	 	 	VOLUME SERVICES AMERICA, INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Kenneth R. Frick
	

	 	 	 	 
	

	 	Name:
	 	Kenneth R. Frick
	

	 	 	 	 
	

	 	Title:
	 	Executive Vice President and CFO
	

	 	 	 	 
	 
	 	 	 	 
	 	 	VOLUME SERVICES, INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Kenneth R. Frick
	

	 	 	 	 
	

	 	Name:
	 	Kenneth R. Frick
	

	 	 	 	 
	

	 	Title:
	 	Executive Vice President and CFO
	

	 	 	 	 
	 
	 	 	 	 
	 	 	SERVICE AMERICA CORPORATION
	 
	 	 	 	 
	

	 	By:
	 	/s/ Kenneth R. Frick
	

	 	 	 	 
	

	 	Name:
	 	Kenneth R. Frick
	

	 	 	 	 
	

	 	Title:
	 	Executive Vice President and CFO
	

	 	 	 	 
	 
	 	 	 	 
	 	 	CENTERPLATE, INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Kenneth R. Frick
	

	 	 	 	 
	

	 	Name:
	 	Kenneth R. Frick
	

	 	 	 	 
	

	 	Title:
	 	Executive Vice President and CFO
	

	 	 	 	 






 









 






	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender
and as Administrative Agent
	 
	 	 	 	 
	 
	 	 	 	 
	

	 	By:
	 	  /s/ Brian E. Miner 
	

	 	 	 	 
	

	 	Name:
	 	  Brian E. Miner
	

	 	 	 	 
	

	 	Title:
	 	  Senior Risk Manager
	

	 	 	 	 






 









 






	 	 	 	 	 
	 	 	WACHOVIA BANK,
NATIONAL ASSOCIATION, as a Lender and and Syndication Agent
	 
	 	 	 	 
	

	 	By:
	 	 /s/  Stephen C. Koelsch
	

	 	 	 	 
	

	 	Name:
	 	  Stephen C. Koelsch
	

	 	 	 	 
	

	 	Title:
	 	  Vice President
	

	 	 	 	 






 









 






EXHIBIT A





 









 








CREDIT AGREEMENT




dated as of April 1, 2005




among




VOLUME SERVICES AMERICA, INC.,




VOLUME SERVICES, INC. and SERVICE AMERICA CORPORATION,




as Borrowers,




CENTERPLATE, INC.,




as a Guarantor,




THE LENDERS SIGNATORY HERETO




FROM TIME TO TIME,




as Lenders,




GECC CAPITAL MARKETS GROUP, INC.,




as Lead Arranger and Book Runner,




GENERAL ELECTRIC CAPITAL CORPORATION,




as Administrative Agent and Lender




and




WACHOVIA BANK, NATIONAL ASSOCIATION,




as Syndication Agent










$215,000,000 Senior Secured Credit Facilities