Exhibit (d)(6)
SODEXHO GUARANTY
Dated as of March 27, 1998
From
SODEXHO ALLIANCE, S.A.
as Guarantor
in favor of
THE LENDER PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
TABLE OF CONTENTS
PAGE
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SECTION 1. Guaranty....................................................................2
SECTION 2. Purchase Option.............................................................2
SECTION 3. Guaranty Absolute...........................................................2
SECTION 4. Waivers and Acknowledgments.................................................3
SECTION 5. Subrogation and Subordination...............................................4
SECTION 6. Payments Free and Clear of Taxes, Etc.......................................5
SECTION 7. Representations and Warranties..............................................8
SECTION 8. Financial Reporting Obligations............................................10
SECTION 9. Financial Covenants........................................................11
SECTION 10. Negative Covenants.......................................................14
SECTION 11. Events of Default........................................................17
SECTION 12. Amendments, Etc..........................................................19
SECTION 13. Notices, Etc.............................................................20
SECTION 14. No Waiver; Remedies......................................................20
SECTION 15. Right of Set-off.........................................................20
SECTION 16. Indemnification..........................................................21
SECTION 17. Continuing Guaranty; Assignments Under the Credit Agreement..............21
SECTION 18. Judgment.................................................................21
SECTION 19. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc...................22
Exhibit 99.(d)(6)
SODEXHO GUARANTY
GUARANTY dated as of March 27, 1998 (the "Guaranty") made by SODEXHO
ALLIANCE, S.A., a societe anonyme organized under the laws of France (the
"Guarantor"), in favor of the Administrative Agent and the Lenders (as defined
in the Credit Agreement referred to below) (the Administrative Agent and the
Lenders being the "Lender").
PRELIMINARY STATEMENT
(1) The Lenders and Societe Generale, as Administrative Agent for
the Lenders, are parties to a Credit Agreement dated as of January 30, 1998
(said Agreement, as it may hereafter be amended, supplemented or otherwise
modified from time to time, being the "Credit Agreement", the terms defined
therein and not otherwise defined herein being used herein as therein defined,
except that for all purposes hereof, the term "Subsidiaries" of the Guarantor
shall include at all times the Borrower and Sodexho Marriott Operations, Inc., a
Delaware corporation ("Sodexho Operations"), and each of their Subsidiaries;
provided that neither New Marriott nor any Person that will become a Subsidiary
of New Marriott upon consummation of the Transaction shall be a Subsidiary of
the Guarantor, the Borrower or Sodexho Operations for any purpose under this
Agreement) with Marriott International, Inc. (which will be renamed Sodexho
Marriott Services, Inc. on the Funding Date), a Delaware corporation (the
"Borrower").
(2) It is a condition precedent to the making of Advances under
the Credit Agreement that the Guarantor, which is to be, upon consummation of
the Transaction, the owner of between 40.01% and 49.9% of the outstanding shares
of capital stock of the Borrower, shall have executed and delivered this
Guaranty.
(3) The Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents.
(4) The aggregate principal amount of the Advances guaranteed
hereunder is U.S. $620,000,000. The interest rate applicable thereto shall be at
(i) the Base Bate, or (ii) an Applicable Margin above the Eurodollar Bate for
Interest Periods of 1, 2, 3, 6, 9 or 12 months, varying from 0.35% to 1.125% per
annum, in each case, as specified in the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Advances under the Credit Agreement, the Guarantor hereby
agrees as follows:
SECTION 1. Guaranty. The Guarantor hereby unconditionally and
irrevocably guarantees (a) the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all Obligations of the Borrower now
or hereafter existing under the Loan Documents, for principal plus all other
amounts due thereunder upon acceleration of the Borrower's Obligations under the
Credit Agreement and (b) the payment of interest, fees and other amounts (other
than principal) which remain unpaid five (5) Business Days after such interest,
fees and other amounts become due under the Loan Documents (such Obligations
under (a) and (b) above being the "Guaranteed Obligations"), and agrees to pay
any and all reasonable expenses (including counsel fees and expenses) incurred
by the Administrative Agent or any other Lender Party in enforcing any rights
under this Guaranty. Without limiting the generality of the foregoing, the
Guarantor's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Borrower to the Administrative
Agent or any other Lender Party under the Loan Documents but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower.
SECTION 2. Purchase Option. At any time in which payment is required
from the Guarantor pursuant to Section 1 above, the Guarantor may, in lieu of
making payment pursuant thereto, purchase within two Business Days after the
same becomes due, by payment in same day funds to the Administrative Agent's
Account, the amount of the Obligations of the Borrower, whether for principal,
interest, expenses, fees or otherwise then due and payable under the Loan
Documents and not otherwise then paid. Upon such payment the Guarantor shall
have been deemed to have purchased without recourse to or representation or
warranty from any of the Lenders such Obligations, subject to Section 5 hereof.
If payment is made of the purchase price of the full amount of all Obligations
of the Borrower, the Lender Parties shall execute the documents referred to in
Section 5.
SECTION 3. Guaranty Absolute. The Guarantor guarantees, to the fullest
extent permitted under applicable law, that the Guaranteed Obligations will be
paid strictly in accordance with the terms of the Loan Documents, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Administrative Agent or any
other Lender Party with respect thereto. The Obligations of the Guarantor under
this Guaranty are independent of the Guaranteed Obligations or any other
Obligations of any other Loan Party under the Loan Documents, and a separate
action or actions may be brought and prosecuted against the Guarantor to enforce
this Guaranty, irrespective of whether any action is brought against the
Borrower or any other Loan Party or whether the Borrower or any other Loan Party
is joined in any such action or actions. The liability of the Guarantor under
this Guaranty shall be irrevocable, absolute and unconditional irrespective of,
and the Guarantor hereby irrevocably waives any defenses it may now or hereafter
have in any way relating to, any or all of the following:
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(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto as against any other Loan Party;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other Obligations
of any other Loan Party under the Loan Documents, or any other amendment or
waiver of or any consent to departure from any Loan Document, including, without
limitation, any increase in the Guaranteed Obligations resulting from the
extension of additional credit to the Borrower or any of its Subsidiaries or
otherwise;
(c) any change, restructuring or termination of the corporate
structure or existence of the Borrower or any of its Subsidiaries;
(d) any failure of any Lender Party to disclose to the Borrower or the
Guarantor any information relating to the business, financial condition, results
of operations or prospects of any other Loan Party now or in the future known to
any Lender Party (the Guarantor waiving any duty on the part of the Lender
Parties to disclose such information); or
(e) any other circumstance (including, without limitation, to the
maximum extent permitted under applicable law, any statute of limitations) or
any existence of or reliance on any representation by the Administrative Agent
or any other Secured Party that might otherwise constitute a defense available
to, or a discharge of, the Borrower, the Guarantor or any other guarantor or
surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Lender Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
SECTION 4. Waivers and Acknowledgments. (a) The Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any other Lender Party protect, secure, perfect or
insure any lien or any property subject thereto or exhaust any right or take any
action against the Borrower or any other Person or any collateral security.
(b) The Guarantor hereby waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
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(c) The Guarantor acknowledges that the waivers set forth in this
Section 4 are knowingly made in contemplation of the benefits to be received by
it as referred to in Preliminary Statement (3).
SECTION 5. Subrogation and Subordination. The Guarantor will not
exercise any rights that it may now or hereafter acquire against the Borrower or
any other insider guarantor that arise from the existence, payment, performance
or enforcement of the Guarantor's Obligations under this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Administrative Agent or any other
Lender Party against the Borrower or any other insider guarantor or any
collateral security, whether or not such claim, remedy or right arises in equity
or under contract, statute or common law, including, without limitation, the
right to take or receive from the Borrower or any other insider guarantor,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right, and all
such rights shall be subordinated, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash or purchased by the Guarantor in full for cash. If any
amount shall be paid to the Guarantor in violation of the preceding sentence at
any time prior to the payment in full in cash of the Guaranteed Obligations or
the purchase in full by the Guarantor for cash of the Guaranteed Obligations and
the payment in full in cash of all other amounts payable under this Guaranty
such amount shall be held in trust for the benefit of the Administrative Agent
and the other Lender Parties and shall forthwith be paid to the Administrative
Agent to be credited and applied to the Guaranteed Obligations and all other
amounts payable under this Guaranty, whether matured or unmatured, in accordance
with the terms of the Loan Documents, or to be held as collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty thereafter
arising. If (i) the Guarantor shall make payment to the Administrative Agent or
any other Lender Party of all or any part of the Guaranteed Obligations, or
shall purchase all or any part of the Guaranteed Obligations, pursuant to
Section 1, Section 2 or Section 11 hereof, and (ii) all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall be purchased
or paid in full in cash, the Administrative Agent and the other Lender Parties
will, at the Guarantor's request and expense, execute and deliver to the
Guarantor appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation or purchase, as the
case may be, to the Guarantor of an interest in, all or such part of, the
Guaranteed Obligations resulting from such payment or purchase by the Guarantor.
SECTION 6. Payments Free and Clear of Taxes, Etc. (a) Any and all
payments by the Guarantor hereunder shall be made, in accordance with Section
2.10 of the Credit Agreement, free and clear of and without deduction for any
and all present or future Taxes. If the Guarantor shall be required by law to
deduct any
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Taxes from or in respect of any sum payable hereunder to any Lender Party or the
Administrative Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) such Lender Party or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Guarantor shall
make such deductions and (iii) the Guarantor shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Guarantor agrees to pay any present or future
Other Taxes.
(c) The Guarantor shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes, and for the full amount of Taxes and Other Taxes on amounts
payable under this Section, imposed on or paid by such Lender Party or the
Administrative Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Lender Party or the Administrative Agent (as the case may be) makes written
demand therefor, accompanied by a certificate of such Lender Party setting forth
the amount thereof, the basis therefor and the calculation thereof; provided,
however, that the Guarantor shall not be obligated to make payment to such
Lender Party or the Administrative Agent (as the case may be) pursuant to this
Section in respect of penalties, additions to tax, interest, expenses and other
liabilities attributable to any Taxes or Other Taxes, if (i) written demand
therefor has not been made by such Lender Party or the Administrative Agent
within 30 Business Days from the date on which such Lender Party or the
Administrative Agent received written notice of an imposition of Taxes or Other
Taxes by the relevant taxing or governmental authority (but only to the extent
that the Guarantor is materially damaged as a result of such failure), (ii) such
penalties, additions to tax, interest, expenses and other liabilities have
accrued as a result of the failure of such Lender Party to remit the amount of
any indemnity payment it receives from the Guarantor pursuant to this Section to
a taxing authority or (iii) such penalties, additions to tax, interest, expenses
and other liabilities are attributable to the gross negligence or willful
misconduct of such Lender Party or the Administrative Agent. After a Lender
Party or the Administrative Agent (as the case may be) receives notice of an
assessment of Taxes or Other Taxes, such Lender Party or Administrative Agent
will act in good faith to promptly notify the Guarantor of its obligations
hereunder.
(d) Within 30 days after the date of any payment of Taxes, the
Guarantor shall furnish to the Administrative Agent, at its address referred to
in Section 13, the original or a certified copy of a receipt evidencing such
payment, except to the
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extent such receipt or other document is not legally available, in which case
the Guarantor will furnish other satisfactory evidence of such payment.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of the Credit Agreement in the case of each Initial Lender and on the
date of the Assignment and Acceptance pursuant to which it becomes a Lender
Party in the case of each other Lender Party, and from time to time thereafter
as requested in writing by the Guarantor (but only so long thereafter as such
Lender Party remains lawfully able to do so), provide each of the Administrative
Agent and the Guarantor with two original Internal Revenue Service forms 1001 or
4224, as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender Party is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to the Credit
Agreement, the Notes or this Guaranty. If the forms provided by a Lender Party
at the time such Lender Party first becomes a party to the Credit Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender Party provides the appropriate form certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender Party assignee becomes a party to the Credit Agreement, the Lender
Party assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includible in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender Party assignee on such date.
(f) For any period with respect to which a Lender Party has failed to
provide the Guarantor with the appropriate form described in subsection (e)
above (other than if such failure is due to a change in law occurring after the
date on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e) above), such Lender Party shall
not be entitled to indemnification under subsection (a) or (c) with respect to
Taxes imposed by the United States by reason of such failure; provided, however
that should a Lender Party become subject to Taxes because of its failure to
deliver a form required hereunder, the Guarantor shall take such steps as such
Lender Party shall reasonably request to assist such Lender Party to recover
such Taxes at such Lender Party's expense.
(g) If a Lender Party shall become aware that it is entitled to
receive a refund from a relevant taxing or governmental authority in respect of
Taxes or Other Taxes as to which it has been indemnified by the Guarantor
pursuant to this Section, it shall promptly notify the Guarantor of the
availability of such refund
6
and shall, within 30 days after receipt of a request by the Guarantor (whether
as a result of notification that it has made to the Guarantor or otherwise) make
a claim to such taxing or governmental authority for such refund at the
Guarantor's expense; provided that the Guarantor agrees to indemnify such Lender
Party for any adverse tax consequences resulting from the making of such claim
for refund. If such Lender Party finally and irrevocably receives a refund of
any Taxes or Other Taxes (including penalties, additions to tax, and interest)
for which it has been indemnified by the Guarantor pursuant to this Section, or
which the Guarantor has paid pursuant to this Section, then, to the extent such
Lender Party may do so without jeopardizing the right to such refund or the
right to benefit from any other refunds, credits, reliefs, remissions or
repayments to which it may be entitled, it shall promptly notify the Guarantor
of such refund and shall within 30 days from the date of receipt of such refund
pay to the Guarantor the portion of such refund (including the after-tax amount
of any interest paid by the relevant taxing or governmental authority with
respect to such refund) that the Lender Party determines would leave such Lender
Party in no worse position than if no Taxes or Other Taxes had been imposed (but
in no case shall such portion exceed the amount of the indemnity payments made,
or Taxes or Other Taxes (including penalties, additions to tax, and interest)
paid, by the Guarantor under this Section that gave rise to such refund), net of
all out-of-pocket expenses of such Lender Party and without interest, provided,
however, that the Guarantor, upon the request of such Lender Party agrees to
repay the amount paid over to the Guarantor (plus penalties, interest or other
charges due to the appropriate authorities in connection therewith) to such
Lender party in the event such Lender Party is required to repay such refund to
such relevant authority.
(h) Any Lender Party claiming any additional amounts payable pursuant
to this Section agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office or take such other actions as may be reasonably
requested by the Guarantor, if the making of such a change or the taking of such
an action would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the reasonable judgment of
such Lender Party, be disadvantageous to such Lender Party; provided, that the
mere existence of quantifiable fees, charges, costs and expenses that the
Guarantor has offered and agreed to pay on behalf of such Lender Party shall not
be deemed to be disadvantageous to such Lender Party.
SECTION 7. Representations and Warranties. The Guarantor hereby
represents and warrants as follows:
(a) The Guarantor (i) is a societe anonyme duly organized and validly
existing under the laws of France and (ii) has all requisite corporate power and
authority (including, without limitation, all governmental licenses, permits and
7
other approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by the Guarantor of this
Guaranty and the other transactions contemplated hereby (excluding for the
avoidance of doubt the transactions under the Senior Debt Credit Agreement (as
hereinafter defined) and the Collateral Documents as defined therein), are
within the Guarantor's corporate powers, have been duly authorized by all
necessary corporation action, and do not (i) contravene the Guarantor's
constitutive documents, (ii) violate any law, rule, regulation (including,
without limitation, Regulation X of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree, determination or
award applicable to it the violation of which would reasonably be expected to
have a Material Adverse Effect, (iii) conflict with or result in the breach of,
or constitute a default under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instruments binding on or affecting the
Guarantor or any of its Subsidiaries or any of their properties, which conflict,
default or breach would reasonably be expected to have a Material Adverse
Effect, or (iv) result in or require the creation or imposition of any Lien upon
or with respect to any material portion of the properties of the Guarantor or
any of its Subsidiaries. Neither the Guarantor nor any of its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument, the
violation or breach of which would reasonably be expected to have a Material
Adverse Effect.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other third
party is required for the due execution, delivery, recordation, filing or
performance by the Guarantor of this Guaranty, or for the consummation of the
other transactions contemplated hereby (excluding for the avoidance of doubt the
transactions under the Senior Debt Credit Agreement and the Collateral Documents
as defined therein), except for authorizations, approvals, actions, notices and
filings the absence of which would not reasonably be expected to have a Material
Adverse Effect.
(d) This Guaranty has been duly executed and delivered by the
Guarantor. This Guaranty is the legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles.
(e) There is no action, suit, investigation, litigation or proceeding
affecting the Guarantor or any of its Subsidiaries, including any Environmental
8
Action, pending or threatened before any court, governmental agency or
arbitrator that would reasonably be expected to have a Material Adverse Effect.
(f) The audited Consolidated balance sheet of the Guarantor and its
Subsidiaries as at August 31, 1997, and the related Consolidated statements of
income and cash flows of the Guarantor and its Subsidiaries for the fiscal year
then ended, accompanied by an opinion of an internationally recognized firm of
independent public accountants, the originals of which, in each case, have been
produced in French and accompanied by an English translation thereof, copies of
which have been furnished to each Lender Party, have been properly prepared and
give a [true and] fair view of the assets, liabilities, financial position and
results of the Group in accordance with accounting principles and practices
generally accepted and adopted in France under the "Plan Compatible General" and
"Code de Commerce" ("French GAAP") and since August 31, 1997, there has been no
material adverse change in the business, assets or financial condition of the
Guarantor and its Subsidiaries taken as a whole.
(g) The information, exhibits and reports furnished by the Guarantor
to any Lender Party in connection with the negotiation of this Guaranty or
pursuant to the terms of the Loan Documents, taken as a whole, did not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made therein not misleading.
(h) The Guarantor is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended. Neither the making of
this Guaranty, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation or order
of the Securities and Exchange Commission thereunder.
(i) Except to the extent that the same would not reasonably be
expected to have a Material Adverse Effect, the operations and properties of the
Guarantor and each of its Substantial Subsidiaries comply in all material
respects with all applicable Environmental Laws and Environmental Permits, all
past non-compliance with such Environmental Laws and Environmental Permits has
been resolved without ongoing obligations or costs, and no circumstances exist
that could reasonably be expected to (i) form the basis of an Environmental
Action against the Guarantor or any of its Subsidiaries or any of their
properties or (ii) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental Law.
(j) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
As used in this Guaranty, the term "Material Adverse Effect" means a
material adverse effect on (a) the business, financial condition or results of
9
operations of the Guarantor and its Subsidiaries taken as a whole, (b) the
rights and remedies of the Administrative Agent and the Lenders under the
Guaranty or (c) the ability of the Guarantor to perform its Obligations under
the Guaranty, and the term "Substantial Subsidiary" means, on any date, any
Subsidiary of the Guarantor (i) whose revenues for the four fiscal quarters of
the Guarantor most recently ended on or prior to such date equaled or exceeded
5% of the Consolidated revenues of the Guarantor and its Subsidiaries for such
period or (ii) whose assets as of such date equaled or exceeded 5% of the
Consolidated assets of the Guarantor and its Subsidiaries as of such date.
SECTION 8. Financial Reporting Obligations. The Guarantor covenants
and agrees that, so long as any part of the Guaranteed Obligations shall remain
unpaid or any Lender Party shall have any Commitment, the Guarantor will, unless
the Required Lenders shall otherwise consent in writing:
(a) Semi-Annual Financials. Furnish to the Lenders, as soon as
available and in any event within 120 days after the end of each semi-annual
period, a Consolidated balance sheet of the Guarantor as of the end of such
period and unaudited Consolidated statements of income and cash flows of the
Guarantor for such semi-annual period, all in reasonable detail and duly
certified (subject to year-end adjustments) by the Chief Financial Officer of
the Guarantor as having been prepared in accordance with French GAAP, together
with (i) a certificate of said officer stating that no Default in respect of a
Guarantor Event of Default has occurred and is continuing or, if such a Default
has occurred and is continuing, a statement as to the nature thereof and the
action that the Guarantor has taken or proposes to take with respect thereto and
(ii) a schedule in form satisfactory to the Administrative Agent of the
computations used by the Guarantor in determining compliance with the covenants
contained in Section 9.
(b) Annual Financials. Furnish to the Lenders, as soon as available
and in any event within 120 days after the end of each Fiscal Year, a copy of
the annual audit report for such year for the Guarantor, including therein a
Consolidated balance sheet of the Guarantor as of the end of such Fiscal Year
and Consolidated statements of income and cash flows of the Guarantor for such
Fiscal Year, in each case accompanied by an opinion, and an English translation
thereof, of an internationally recognized independent public accounting firm to
the effect that such financial statements have been properly prepared and give a
[true and] fair view of the assets, liabilities, financial position and results
of the Group in accordance with French GAAP, together with (i) a certificate of
the Chief Financial Officer of the Guarantor stating that no Default in respect
of a Guarantor Event of Default has occurred and is continuing, or if such a
Default has occurred and is continuing, a statement as to the nature thereof and
the action the Guarantor has taken or proposes to take with respect thereto and
(ii) a schedule in form satisfactory to the Administrative Agent of the
computations
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used by the Guarantor in determining compliance with the covenants contained in
Section 9.
(c) Default Notice. As soon as possible and in any event within five
Business Days after a Responsible Officer of the Guarantor has knowledge of the
occurrence of a Guarantor Event of Default, furnish to the Lenders a statement
setting forth details of such Guarantor Event of Default and the action that the
Guarantor has taken or proposes to take with respect thereto.
(d) Other Information. Provide such other information respecting the
business, financial condition, results of operations or prospects of the
Guarantor and its Subsidiaries as any Lender (through the Administrative Agent)
may from time to time reasonably request.
SECTION 9. Financial Covenants. The Guarantor covenants and agrees
that, so long as any part of the Guaranteed Obligations shall remain unpaid or
any Lender Party shall have any Commitment, the Guarantor will, unless the
Required Lenders shall otherwise consent in writing:
(a) Leverage Ratio. Maintain at the end of each six-month fiscal
period of the Guarantor and its Subsidiaries ending on a date set forth below, a
ratio of Net Consolidated Financial Indebtedness to Adjusted Net Worth of not
more than the ratio set forth below for such date:
Date Ratio
---- -----
August 31, 1998 and February 28, 1999........................ 1.25
August 31, 1999 and February 29, 2000........................ 1.10
August 31, 2000 and February 28, 2001........................ 0.85
The last day of each August and February thereafter.......... 0.75
where:
"Adjusted Net Worth" means, at any time, the sum of:
(i) the amount of shareholders' funds ("capitaux propres") as
shown in the Group's then most recent consolidated balance
sheet;
(ii) the amount of minority interests ("interets minoritaires")
as shown in the Group's then most recent consolidated
balance sheet; and
(iii) the amount of goodwill arising on acquisitions ("ecarts de
premiere consolidation") which has been written off against
reserves, minority interests or amortized (but only to the
extent that such write-off or amortization has been deducted
in computing profit, reserves or
11
minority interests), such amount to be calculated on a
cumulative basis since August 31, 1994.
"Financial Indebtedness" means, in relation to any person at any time,
any indebtedness of that person, whether actual or contingent, present or
future, in respect of:
(i) total financial debt ("dettes financieres") including moneys
borrowed, debit balances at banks and any debenture, bond,
note, loan stock or other debt security;
(ii) receivables sold or discounted (otherwise than on a
non-recourse basis), acceptance credits and other
arrangements required to be given similar treatment under
French GAAP;
(iii) the obligations under capital and operating leases
("credit-bail") or other contracts required to be given
similar treatment under French GAAP;
(iv) any guarantee of any person in respect of any of the above,
excluding Financial Indebtedness in respect of Guaranteed Investments, but no
particular Financial Indebtedness shall be taken into account more than once (so
that, for example, a guaranty shall be excluded to the extent the Financial
Indebtedness guaranteed thereby is already taken into account) (and, in the case
of Financial Indebtedness of any member of the Group, there shall also be
excluded (i) any Financial Indebtedness owing to any member of the Group (ii)
(for avoidance of doubt) any performance guaranty issued in favor of Spirit
Marine (as referred to in the AFA (as hereinafter after defined)) in respect of
the contractual arrangements entered into by Spirit Cruises (as referred to in
the AFA) and (iii) (for avoidance of doubt) the Financial Indebtedness of any
person guaranteed by a member of the Group if that person is not a member of the
Group).
"Group" means, at any time, the Guarantor, its Subsidiaries at such
time and any other entity the accounts of which would be fully consolidated with
those of the Guarantor in its Consolidated financial statements if such
statements were prepared as of such time but, for avoidance of doubt, excluding
any holding company of the Guarantor or any Subsidiary of such holding company
not being a Subsidiary of the Guarantor.
"Guaranteed Investments" means, in relation to any member of the
Group, amounts invested by that member of the Group in order to finance on
behalf of a customer, whether by "credit-bail" or leasing transaction or other
means, the construction and/or installation of a facility to be utilized in
connection with an operating contract awarded to it or any other member of the
Group on
12
terms which provide that the financing costs of the relevant investment is not
to be borne by the relevant member of the Group,
"Net Consolidated Financial Indebtedness" means, at any time, the
Financial Indebtedness of the Group less the amount of cash at hand and
marketable securities ("disponibilites et valeurs mobilieres de placement") as
shown in the Group's consolidated accounts excluding for the avoidance of doubt
reserved funds relating to the vouchers activity ("fonds reserves").
(b) Interest Expense Coverage Ratio. Maintain at the end of each
six-month fiscal period ending on a date set forth below, a ratio of EBIT to Net
Consolidated Interest Expense of not less than the ratio set forth below in
respect of such date for the period of two consecutive semi-annual fiscal
periods ending on such date:
Date Ratio
---- -----
February 28, 1999.............................................. 3.00
August 31, 1999 and February 29, 2000.......................... 3.25
August 31, 2000 and February 28, 2001.......................... 3.75
The last day of each August and February thereafter............ 4.00
where:
"EBIT" means, in relation to any period, the "resultat d'exploitation
consolide" (as determined in accordance with French GAAP) as shown in the
consolidated accounts of the Group for that period excluding for the avoidance
of doubt any charge for (a) amortization of goodwill ("amortissement d'ecarts
d'aquisition") and (b) Integration Costs in respect of the Transaction in an
amount not to exceed, in aggregate for all such deductions taken over the term
of the Facility, $45,000,000 less the amount of such costs classified by the
Guarantor's independent public accountants, and recorded, as capitalized
expenses, in each case, to the extent deducted in computing "resultat
d'exploitation".
"Integration Costs" means costs incurred in connection with the
combination of the businesses of MMS, ICC, Sodexho Canada, MMS Canada and their
respective Subsidiaries and Affiliates.
"Net Consolidated Interest Expense" means, for any period, the
"resultat financier consolide" (as determined in accordance with French GAAP) as
shown in the Group's consolidated accounts for that period after excluding any
foreign exchange gains or losses and any amortization provision ("dotations et
reprises aux amortissements et provisions") made, to the extent included within
the "resultat financier consolide" during that period.
13
SECTION 10. Negative Covenants. The Guarantor covenants and agrees
that, so long as any part of the Guarauteed Obligations shall remain unpaid or
any Lender Party shall have any Commitment, the Guarantor will not, without the
prior written consent of the Required Lenders:
(a) Debt. Allow the aggregate U.S. dollar amount of any (i) Debt
incurred by or assumed by the Borrower or any of its Subsidiaries (other than
current accounts) from the Guarantor or any of its Subsidiaries (other than the
Borrower or any of its Subsidiaries); and (ii) equity invested by the Guarantor
or any of its Subsidiaries (other than the Borrower or any of its Subsidiaries)
in the Borrower or any of its Subsidiaries to exceed $25,000,000 per annum;
provided that this Section 10(a) shall not apply to any Investment made by the
Guarantor or any of its Subsidiaries (i) to cure or prevent a payment Event of
Default under the Credit Agreement or (ii) pursuant to the Cash Payment.
(b) Negative Pledge. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien upon or with respect to any of its properties of any character (including,
without limitation, accounts) or assign, or permit any of its Subsidiaries to
assign, any accounts or other right to receive income other than:
(i) any Lien permitted under Section 5.02(a) of the Senior
Debt Credit Agreement (excluding Liens permitted under clause
5.02(a)(x) therein);
(ii) any Lien permitted under Section 5.02(a) the Credit
Agreement (excluding Liens permitted under clause 5.02(a)(x) therein);
(iii) any Lien in effect on the date hereof under the AFA
and RWCFA facilities;
(iv) other Liens in effect on November 1, 1997;
(v) any Lien constituted or evidenced by a Security Document
(as defined in the AFA) or a RWC Security Document (as defined in the
AFA);
(vi) liens arising by operation of law or in the ordinary
course of business, including in respect of any client money held in
trust by a Group member or rights of set-off arising by operation of
law or bankers' rights of set-off,
14
(vii) group account netting and pooling arrangements entered
into between members of the Group and any bankers to the Group;
(viii) any Lien on any asset of a member of the Group
arising in respect of any escrow arrangements put into place for the
purpose of a disposal or acquisition by a member of the Group
permitted by the AFA;
(ix) any Lien on any asset acquired by a member of the Group
which exists at the time of, and is not created in contemplation of,
such acquisition, provided that the same does not secure any
obligation which is not secured thereby at the time of such
acquisition;
(x) any Lien on any asset which secures only Financial
Indebtedness (as such term is defined in Section 9) incurred to
refinance any other Financial Indebtedness secured by the same asset
by any such Lien as is referred to in paragraph (ix) above, provided
that the aggregate amount secured by such asset is not thereby
increased;
(xi) any Lien created by any member of the Group to secure
any Guaranteed Investments (as such term is defined in Section 9) made
or to be made by it;
(xii) the Lien created by the AFA Borrower subject to the
deed of deposit and security dated 2lst January 1995 between the AFA
Borrower and Societe Generale in relation to the guarantee given by
Societe Generale of the Loan Notes (as defined in the AFA);
(xiii) any Lien pursuant to any order of attachment,
distraint or similar legal process arising in connection with court
proceedings provided that the execution or other enforcement thereof
is effectively stayed and the claims served thereby are being
contested at the time in good faith by appropriate proceedings and
proper provision has been made for any adverse judgments;
(xiv) any Lien on any sum payable under any contract (or on
any security representing such sum or otherwise issued pursuant to
such contract) in respect of which the major part of the price
receivable by a member of the Group is guaranteed or insured by,
15
or is part of a scheme operated by, a national export credit
institution or other similar institution;
(xv) any Lien created on the assets of any member of the
Group in the course of margin trading entered into by such member as
part of its normal treasury operations; and
(xvi) other Liens securing Debt in an amount not to exceed
the higher of $100,000,000 or 5% of Adjusted Net Worth (as such term
is defined in Section 9),
where:
"AFA" means the Acquisition Facility Agreement dated 1 March 1995 (as
amended), between the AFA Borrower, the banks party thereto and Societe
Generale, as agent (as the same has been or may be further amended, supplemented
or otherwise modified from time to time).
"AFA Borrower" means Sodexho Gardner Merchant Alliance Limited, a
company incorporated under the laws of England, ICC and the Guarantor.
"GMSG" means Gardner Merchant Services Group Limited, a company
incorporated under the laws of England.
"RWCFA" means the Refinancing and Working Capital Facility Agreement
dated 1 March 1995 between the Guarantor, GMSG and certain of its subsidiaries
and Societe Generale (as the same has been or may be further amended,
supplemented or otherwise modified from time to time).
"Senior Debt Credit Agreement" means the Credit Agreement, dated as of
January 30, 1998 among Sodexho Operations, the lenders party thereto, Sodexho
Marriott Services, Inc. (currently called Marriott International, Inc.), as
parent guarantor, and Morgan Guaranty Trust Company of New York, as
documentation agent and administrative agent for the lender parties thereto (as
the same may be amended, supplemented or otherwise modified from time to time).
SECTION 11. Events of Default. If any of the following events
("Guarantor Events of Default") shall occur and be continuing:
(a) the Guarantor shall fail to pay (i) any of the Guaranteed
Obligations set forth in clause (a) of Section 1 when the same shall become due
and payable under the Loan Documents, or (ii) any of the Guaranteed Obligations
set forth in clause (b) of Section 1 within seven (7) Business Days after the
same shall become due and payable under the Loan Documents; or
16
(b) any representation or warranty made by the Guarantor (or any of
its officers) under or in connection with this Guaranty shall prove to have been
incorrect in any material respect when made; or
(c) the Guarantor shall fail to perform or observe any term, covenant
or agreement contained in Sections 8 or 10 herein if such failure shall remain
unremedied for 30 days after written notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender Party; or
(d) the Guarantor shall fail to perform or observe any term, covenant
or agreement contained in Section 9 herein; or
(e) the Guarantor or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect of
any Debt of the Guarantor or such Subsidiary (as the case may be), that is
outstanding in a principal amount of at least FRF 200 million either
individually or in the aggregate when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to any such Debt; or any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the maturity of
such Debt or otherwise to cause, or permit the holder thereof to cause, such
Debt to mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption or prepayments required to be made from the proceeds of
certain cash generation events or the results of operations of the Guarantor or
such Subsidiary), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
(f) the Guarantor or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Guarantor or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period of 30
days or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief
17
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or any substantial part of its property) shall occur; or the
Guarantor or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess of FRF
200 million shall be rendered against the Guarantor or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against the
Guarantor or any of its Subsidiaries that would reasonably be expected to have a
Material Adverse Effect, and there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(i) a material adverse change shall occur in (i) the ability of the
Guarantor to perform its payment obligations under this Guaranty or (ii) the
business, assets or financial condition of the Guarantor and its Subsidiaries
taken as a whole,
then, upon written demand by the Administrative Agent, given at the request or
with the consent of the Required Lenders, the Guarantor shall forthwith purchase
from the Lenders without recourse to or representation or warranty from any of
the Lenders, and the Lenders shall sell and assign to the Guarantor, all
Obligations of the Borrower, whether for principal, interest, expenses, fees or
otherwise under the Loan Documents. The Guarantor shall effect such purchase,
sale and assignment by making available to the Administrative Agent's Account,
as specified in such written demand by the Administrative Agent, in same day
funds an amount equal to all such Obligations. If and to the extent that the
Guarantor shall not have so made the amount of its purchase price with respect
to such Obligations available to the Administrative Agent, the Guarantor agrees
to pay to the Administrative Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by the Administrative
Agent to the date such amount is paid to the Administrative Agent, at a rate of
2% per annum. The Guarantor acknowledges and agrees that, notwithstanding
anything in this Guaranty to the contrary, its obligation to purchase the
Obligations hereunder is, to the fullest extent permitted under applicable law,
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, (i) the occurrence and continuance of
any Default or Event of Default (except to the extent any such incurrence is a
condition to the Guarantor's obligations hereunder), (ii) the existence of any
claim, set-off, defense or other right that the Guarantor may have at any time
against the Lenders, any other
18
Lender Party, the Borrower or any other Person, whether in connection with the
transactions contemplated by this Guaranty or any unrelated transaction
(provided that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim) or (iii) any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Guarantor.
SECTION 12. Amendments, Etc. No amendment or waiver of any provision
of this Guaranty and no consent to any departure by the Guarantor therefrom
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent and the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all of the Lender Parties (other than any
Lender Party that is, at such time, a Defaulting Lender), (a) limit the
liability of the Guarantor hereunder, (b) postpone any date fixed for payment
hereunder or (c) change the number of Lender Parties required to take any action
hereunder.
SECTION 13. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopy communication)
and mailed, telecopied, or delivered to it, if to the Guarantor, addressed to it
at 3 Avenue Newton, 78180 Montigny-le-Bretonneux, France (telecopy number:
33-1-3085-5005), Attention: Rapael Dubrule, Corporate Secretary, with a copy to
Sian Herbert-Jones, 33-1-3085-5088, if to the Administrative Agent or any Lender
Party, at its address specified in the Credit Agreement, or as to any party at
such other address as shall be designated by such party in a written notice to
each other party. All such notices and other communications shall be effective,
(i) if given by telecopy, when transmitted to the telecopy number referred to in
this Section and confirmation of receipt is received, (ii) if given by mail, 120
hours after such communication is deposited in the mails with the postage
prepaid, addressed as aforesaid or (iii) if given by any other means, when
delivered at the address referred to in this Section.
SECTION 14. No Waiver; Remedies. No failure on the part of the
Administrative Agent or any other Lender Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 15. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 of the Credit Agreement to
authorize the Administrative Agent to declare the Notes due aud payable pursuant
to the provisions of said Section 6.01, each Lender Party and each of its
respective
19
affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender Party or such affiliate to
or for the credit or the account of the Guarantor against any and all of the
Obligations of the Guarantor now or hereafter existing under this Guaranty,
whether or not such Lender Party shall have made any demand under this Guaranty
and although such Obligations may be unmatured. Each Lender Party agrees
promptly to notify the Guarantor after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender Party and
its respective affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender Party and its respective affiliates may have.
SECTION 16. Indemnification. Without limitation on any other
Obligations of the Guarantor or remedies of the Lender Parties under this
Guaranty, the Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Lender Party from and against,
and shall pay on demand, any and all losses, liabilities, damages, costs,
expenses and charges (including the reasonable fees and disbursements of such
Lender Party's legal counsel) suffered or incurred by such Lender Party as a
result of any failure of any Guaranteed Obligations to be the legal, valid and
binding obligations of any Loan Party intended to be obligated therefor,
enforceable against such Loan Party in accordance with their terms.
SECTION 17. Continuing Guaranty; Assignments Under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of the purchase or payment in full in cash of
the Guaranteed Obligations and all other amounts payable under this Guaranty and
the Termination Date, (b) be binding upon the Guarantor, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Administrative
Agent and the other Lender Parties and their successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any Lender
Party may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitment, the Advances owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender Party
herein or otherwise, in each case as and to the extent provided in Section 8.07
of the Credit Agreement.
SECTION 18. Judgment. To the fullest extent permitted under applicable
law, the obligation of the Guarantor in respect of any sum due from it in any
currency (the "Primary Currency") to any Lender hereunder shall, notwithstanding
any judgment in any other currency, be discharged only to the
20
extent that on the Business Day of receipt by such Lender of any sum adjudged to
be so due in such other currency, such Lender may in accordance with normal
banking procedures purchase the applicable Primary Currency with such other
currency; if the amount of the applicable Primary Currency so purchased is less
than such sum due to such Lender in the applicable Primary Currency, the
Guarantor agrees, to the fullest extent permitted under applicable law, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender against such loss, and if the amount of the applicable Primary Currency
so purchased exceeds such sum due to any Lender in the applicable Primary
Currency, such Lender agrees to remit to the Guarantor such excess.
SECTION 19. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
(a) This Guaranty shall be governed by, and construed in accordance with, the
laws of the State of New York.
(b) The Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty or any of the other Loan Documents to which
it is or is to be a party, or for recognition or enforcement of any judgment,
and the Guarantor hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the extent permitted by law, in such federal
court. The Guarantor hereby further irrevocably appoints and empowers
Corporation Service Company (the "Process Agent") as its agent in the State of
New York pursuant to the designation of agent for service delivered (or to be
delivered) pursuant to Section 3.02(k)(xxii) of the Credit Agreement to receive
on behalf of the Guarantor and its property service of copies of the summons and
complaint and any other process that may be served in any action or proceeding
arising out of or relating to this Guaranty, aud the Guarantor hereby
irrevocably authorizes the Administrative Agent to file such designation of
agent for service with any appropriate authority at such time and from time to
time as the Administrative Agent, in its sole discretion, shall elect. The
Guarantor hereby further irrevocably consents to the service of process in any
such action or proceeding in such courts by the mailing thereof by any parties
to any of the Loan Documents by registered or certified mail, postage prepaid,
to the Process Agent, and hereby further agrees that the failure of the Process
Agent to give any notice of any such service to the Guarantor shall not impair
or affect the validity of such service or of any judgment rendered in any action
or proceeding based thereon. As an alternative method of service, the Guarantor
hereby also irrevocably consents to the service of any and all process in any
such action or proceeding in such courts by delivering copies of such process by
mail (using a method requiring evidence of receipt) to the Guarantor at its
address specified in Section 13. The Guarantor agrees that a final judgment in
any such action or proceeding shall be conclusive
21
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Guaranty shall affect any right
that any party may otherwise have to bring any action or proceeding relating to
this Guaranty or any of the other Loan Documents to which it is or is to be a
party in the courts of any jurisdiction.
(c) To the extent that the Guarantor has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Guarantor hereby irrevocably waives such immunity in respect of its obligations
under this Guaranty.
(d) The Guarantor irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guaranty or any of the other Loan Documents
to which it is or is to be a party in any such New York State or federal court.
The Guarantor hereby irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(e) The Guarantor hereby irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the
transactions contemplated thereby or the actions of the Administrative Agent or
any other Lender Party in the negotiation, administration, performance or
enforcement thereof.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
SODEXHO ALLIANCE, S.A.
By /s/ Bernard Carton
--------------------------------
Title: Senior Vice President and Chief
Financial Officer
22
ACKNOWLEDGMENT OF THE BORROWER
The undersigned, as Borrower under the Credit Agreement dated as of
January 30, 1998 (the "Credit Agreement", the terms defined therein are used
herein as therein defined), among the undersigned, the Guarantor, the Lenders
party thereto, Societe Generale, as Administrative Agent, and Morgan Guaranty
Trust Company of New York, as Documentation Agent, hereby acknowledges the
subrogation and subordination provisions set forth in Section 5 of the Guaranty
and agrees not to make any payment to the Guarantor which the Guarantor is not
entitled to receive pursuant to the terms of the Guaranty.
MARRIOTT INTERNATIONAL, INC.
(to be renamed Sodexho Marriott
Services, Inc. on the Funding Date)
By /s/ Lawrence E. Hyatt
---------------------------------------
Title: Senior Vice President and Chief
Financial Officer
23