FIRST SUPPLEMENTAL
INDENTURE
SUPPLEMENTAL
INDENTURE (this “ Supplemental Indenture ”),
dated as of January 23 2009, among Centerplate, Inc. (the “
Company ”), a Delaware corporation formerly known as
Volume Services America Holdings, Inc., the subsidiaries of the
Company listed on the signature pages hereto (the “
Guarantors ”) and The Bank of New York Mellon, a New
York banking corporation, as trustee (the “ Trustee
”).
WHEREAS, the
Company, the Guarantors and the Trustee are parties to an Indenture
dated December 10, 2003 (as amended, supplemented, waived or
otherwise modified, the “ Indenture ”) providing
for the issuance of an aggregate original principal amount of
$95,677,065 of 13.5% Subordinated Notes due 2013 (the “
Notes ”);
WHEREAS, the
Company and the Guarantors propose to amend the Indenture and the
Notes (the “ Proposed Amendments ”) as
contemplated hereby;
WHEREAS, the
Company has solicited the consent of the Holders of the Notes
pursuant to the Offer to Purchase and Consent Solicitation
Statement, dated December 23, 2008, as amended, supplemented
or modified (the “ Consent Solicitation Statement
”) to the Proposed Amendments upon the terms and subject to
the conditions set forth therein;
WHEREAS, the
Company has received and delivered to the Trustee evidence of the
consent of the Holders of at least a majority in aggregate
principal amount of the Notes to the Proposed
Amendments;
WHEREAS, the
consent of the Holders of at least a majority in aggregate
principal amount of the Notes is sufficient under the Indenture to
effect the Proposed Amendments;
WHEREAS, the
Supplemental Indenture does not adversely affect the rights under
Articles 10 or 12 of the Indenture of any holder of Senior
Indebtedness, as defined in the Indenture;
WHEREAS, all other
acts and proceedings required by law, by the Indenture, and by the
organizational documents of the Company and the Guarantors to make
this Supplemental Indenture a valid and binding agreement for the
purposes expressed herein, in accordance with its terms, have been
duly done and performed;
WHEREAS, while
this Supplemental Indenture will become effective when executed,
the terms hereof will not become operative until the Notes are
accepted for purchase by the Company pursuant to the tender offer
contemplated by the Consent Solicitation Statement (such acceptance
date, the “ Operative Date ”); and
WHEREAS, pursuant
to Section 9.02 of the Indenture, the Company and the
Guarantors may amend or supplement the Indenture and the Notes as
contemplated hereby provided that the
Holders of at
least a majority in aggregate principal amount of the Notes then
outstanding have consented.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, in
order to effect the Proposed Amendments pursuant to
Section 9.02 of the Indenture, the Company and the Guarantors
agree with the Trustee as follows:
AMENDMENT OF INDENTURE AND
NOTES
1.01. Effective as
of the Operative Date, pursuant to Section 9.02 of the
Indenture, this Supplemental Indenture amends the Indenture and
Notes as provided for herein.
1.02. Amendment
of Section 1.01. Section 1.01 of the Indenture is
hereby amended as follows:
(a) the
definitions listed in Schedule 1.01 hereto are hereby deleted
in their entirety;
(b) the
definitions listed in Schedule 1.01(A) hereto are hereby
amended and restated as described in
Schedule 1.01A;
1.03. Amendment
of Section 1.02. Section 1.02 of the Indenture is
hereby amended by deleting in their entirety the references listed
in Schedule 1.02 hereto;
1.04. Amendment
of Section 2.15. Section 2.15 of the Indenture is
hereby amended and restated as follows:
Section 2.15.
Extension of Maturity . The Company may irrevocably extend
the maturity date of the Securities for two additional successive
five-year terms to December 10, 2018 and December 10,
2023, respectively, if the following conditions are satisfied as of
the date the Company delivers to the Trustee the Officer’s
Certificate described below:
(1) during
the twelve month period ending on the last day of the fiscal
quarter ending at least 45 days prior to the date such
Officer’s Certificate is furnished to the Trustee, the ratio
of Net Debt to Adjusted EBITDA is less than 5.00 to
1.00;
(2) no Event
of Default (including certain events of bankruptcy, insolvency or
reorganization of the Company or a Significant Subsidiary) has
occurred and is continuing with respect to the
Securities;
(3) no Event
of Default has occurred and is continuing with respect to any other
Indebtedness of the Company, or could occur as a result of such
extension, including under any Designated Senior Indebtedness;
and
-2-
(4) there is
no interest due but unpaid on the Securities or any other
Indebtedness of the Company, other than trade payables in an
immaterial amount.
If the Company
determines to extend the maturity of the Securities, the Company,
or the Trustee at the Company’s direction, shall mail a
notice of such extension, which notice shall include the new
maturity date, by first-class mail to each Holder at such
Holder’s registered address, at least 30 and not more than
200 days prior to the previous maturity date; provided that in
each such case, the Company shall deliver to the Trustee, at least
10 and not more than 15 days prior to the proposed date for
giving such notice, an Officer’s Certificate requesting that
the Trustee give such notice (or informing the Trustee that the
Company is giving such notice, as applicable) and setting forth the
information required above. The extension of the maturity date of
the Securities shall become effective automatically upon delivery
of such Officer’s Certificate to the Trustee and, once
effective, may not be revoked.
1.05. Amendment
of Section 4.02. Section 4.02 is hereby amended and
restated as follows:
SECTION 4.02.
[INTENTIONALLY OMITTED]
1.06. Amendment
of Section 4.03. Section 4.03 is hereby amended and
restated as follows:
SECTION 4.03.
[INTENTIONALLY OMITTED]
1.07. Amendment
of Section 4.04. Section 4.04 is hereby
amended
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