Bridge Loan Agreement - ARAMARK Services Inc., ARAMARK Corp. and JPMorgan Chase Bank
EXECUTION COPY
$600,000,000
BRIDGE LOAN AGREEMENT
dated as of
November 30, 2001
among
ARAMARK SERVICES, INC.,
ARAMARK CORPORATION,
as Parent Guarantor
THE LENDERS LISTED HEREIN
and
JPMORGAN CHASE BANK,
as Administrative Agent
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ARTICLE 1
Definitions
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Section 1.01. Definitions.................................................. 1
Section 1.02. Accounting Terms and Determinations.......................... 14
ARTICLE 2
The Loans
Section 2.01. Commitments to Lend.......................................... 14
Section 2.02. Notice of Borrowing; Funding of Loans........................ 14
Section 2.03. Maturity of Loans; Mandatory Prepayments..................... 15
Section 2.04. Notes........................................................ 16
Section 2.05. Interest Rates............................................... 17
Section 2.06. Optional Prepayments......................................... 18
Section 2.07. General Provisions as to Payments............................ 18
Section 2.08. Funding Losses............................................... 19
Section 2.09. Computation of Interest and Fees............................. 19
Section 2.10. Regulation D Compensation.................................... 19
Section 2.11. Method of Electing Interest Rates............................ 20
ARTICLE 3
Conditions To Borrowing
Section 3.01. Conditions To Borrowing...................................... 21
ARTICLE 4
Representations And Warranties
Section 4.01. Corporate Existence and Power................................ 22
Section 4.02. Corporate and Governmental Authorization; No Contravention... 23
Section 4.03. Binding Effect............................................... 23
Section 4.04. Financial Information........................................ 23
Section 4.05. Litigation................................................... 23
Section 4.06. Compliance with ERISA........................................ 24
Section 4.07. Environmental Matters........................................ 24
Section 4.08. Taxes........................................................ 24
Section 4.09. Compliance with Laws......................................... 24
Section 4.10. Not an Investment Company.................................... 25
Section 4.11. Full Disclosure.............................................. 25
ARTICLE 5
Covenants
Section 5.01. Information.................................................. 25
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Section 5.02. Payment of Obligations....................................... 27
Section 5.03. Maintenance of Property; Insurance........................... 27
Section 5.04. Conduct of Business and Maintenance of Existence............. 28
Section 5.05. Inspection of Property, Books and Records.................... 28
Section 5.06. Maintenance of Stock of Borrower............................. 28
Section 5.07. Negative Pledge.............................................. 29
Section 5.08. Consolidations, Mergers and Sales of Assets.................. 30
Section 5.09. Fixed Charge Coverage........................................ 30
Section 5.10. Debt Coverage................................................ 30
Section 5.11. Minimum Consolidated Net Worth............................... 31
Section 5.12. Transactions with Affiliates................................. 31
Section 5.13. Use of Proceeds.............................................. 31
Section 5.14. Restricted Payments.......................................... 31
ARTICLE 6
Defaults
Section 6.01. Events of Default........................................... 32
Section 6.02. Notice of Default............................................ 34
ARTICLE 7
The Administrative Agent
Section 7.01. Appointment and Authorization................................ 34
Section 7.02. Administrative Agent and Affiliates.......................... 34
Section 7.03. Action by Administrative Agent............................... 35
Section 7.04. Consultation With Experts.................................... 35
Section 7.05. Liability of Administrative Agent............................ 35
Section 7.06. Indemnification.............................................. 35
Section 7.07. Credit Decision.............................................. 35
Section 7.08. Agency Fees.................................................. 36
Section 7.09. Successor Administrative Agent............................... 36
ARTICLE 8
Changes In Circumstances Affecting Euro-dollar Loans
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair..... 36
Section 8.02. Illegality................................................... 37
Section 8.03. Increased Cost............................................... 37
Section 8.04. Taxes........................................................ 38
Section 8.05. Base Rate Loans Substituted for Affected Loans............... 40
ARTICLE 9
Guarantee
Section 9.01. The Guarantee................................................ 40
Section 9.02. Guarantee Unconditional...................................... 41
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Section 9.03. Discharge Only Upon Payment In Full; Reinstatement In
Certain Circumstances....................................... 41
Section 9.04. Waiver....................................................... 42
Section 9.05. Subrogation and Contribution................................. 42
Section 9.06. Stay of Acceleration......................................... 42
ARTICLE 10
Judicial Proceedings
Section 10.01. Consent To Jurisdiction..................................... 42
Section 10.02. Enforcement of Judgments.................................... 42
Section 10.03. Service of Process.......................................... 43
Section 10.04. No Limitation on Service or Suit............................ 43
ARTICLE 11
Miscellaneous
Section 11.01. Notices..................................................... 43
Section 11.02. No Waiver................................................... 43
Section 11.03. Expenses; Indemnification for Litigation.................... 44
Section 11.04. Amendments and Waivers...................................... 44
Section 11.05. Sharing of Set-offs......................................... 45
Section 11.06. New York Law................................................ 45
Section 11.07. Successors and Assigns...................................... 45
Section 11.08. Collateral.................................................. 47
Section 11.09. Counterparts; Effectiveness................................. 47
Section 11.10. WAIVER OF JURY TRIAL........................................ 47
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Commitment Schedule
Pricing Schedule
Exhibit A - Note
Exhibit B - Opinion of Counsel of the
Borrower and the Parent Guarantor
Exhibit C - Opinion of Special Counsel for the Administrative Agent
Exhibit D - Subsidiary Guaranty Agreement
Exhibit E - Management Equity Note
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BRIDGE LOAN AGREEMENT
AGREEMENT dated as of November 30, 2001 (the "Agreement") among ARAMARK
SERVICES, INC., ARAMARK CORPORATION, as the Parent Guarantor, the LENDERS party
hereto and JPMORGAN CHASE BANK, as Administrative Agent.
ARTICLE 1
Definitions
Section 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"Acquisition" means the acquisition by the Parent Guarantor and its Wholly
Owned Subsidiaries of the Target on substantially the terms heretofore disclosed
by the Parent Guarantor to the Lenders.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders hereunder, and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form requested by the Administrative Agent
that is submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Lender.
"Affiliate" means any Person (other than the Parent Guarantor or a
Subsidiary) which controls, is controlled by or is under common control with the
Parent Guarantor. As used herein, the term "control" means possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Applicable Lending Office" means, with respect to any Lender, (i) in the
case of its Base Rate Loans, its Domestic Lending Office and (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Approved Fund" means any Fund that is administered or managed by (i) a
Lender, (ii) an affiliate of a Lender or (iii) an entity or an affiliate of any
entity that administers or manages a Lender.
"AWC Merger" means the merger of the Parent Guarantor with and into ARAMARK
Worldwide Corporation, a Delaware corporation and a wholly-owned subsidiary of
the Parent Guarantor, which would substantially simultaneously therewith change
its name to ARAMARK Corporation.
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"Base Rate" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of 2 of 1% plus the Federal Funds
Rate for such day.
"Base Rate Loan" means a Loan which bears interest at the Base Rate
pursuant to the Notice of Borrowing or a Notice of Interest Rate Election or the
provisions of Article 8.
"Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means ARAMARK Services, Inc., a Delaware corporation, and its
successors.
"Borrowing Date" means the date designated by the Borrower in the Notice of
Borrowing as the date on which the initial Loans are to be made. The Borrowing
Date shall be no later than December 14, 2001.
"Capital Lease" means a lease that would be capitalized on a balance sheet
of the lessee prepared in accordance with generally accepted accounting
principles.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
"Commitment" means (i) with respect to each Lender listed on the Commitment
Schedule, the amount set forth opposite the name of such Lender on the
Commitment Schedule and (ii) with respect to any assignee, the amount of the
transferor Lender's Commitment assigned to it pursuant to Section 11.07, in each
case as such amount may be changed from time to time pursuant to Section 11.07.
"Commitment Schedule" means the Commitment Schedule attached hereto.
"Common Stock" means the Common Stock, par value $.01 per share, of the
Parent Guarantor.
"Consolidated Cash Flow Available for Fixed Charges" means for any period
EBITDA for such period, plus the excess (if any) of (x) the aggregate amounts
deducted in determining Consolidated Net Income for such period in respect of
rental expense over (y) the aggregate amounts included in determining such
Consolidated Net Income in respect of rental income (excluding any portion of
such rental expense or rental income in respect of leases having a term of one
year or less or in respect of Capital Leases).
"Consolidated Fixed Charges" means for any period (the "Applicable Period")
the sum of, without duplication, (i) the Consolidated Interest Charges accrued
in the Applicable Period, (ii) the excess (if any) of (x) the aggregate amounts
deducted in determining Consolidated Net Income for the Applicable Period in
respect of rental
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expense over (y) the aggregate amounts included in determining such Consolidated
Net Income in respect of rental income (excluding any portion of such rental
expense or rental income in respect of leases having a term of one year or less
or in respect of Capital Leases) and (iii) the aggregate amount of dividends
accrued in the Applicable Period in respect of Series Preferred Stock.
"Consolidated Interest Charges" means for any period the aggregate interest
expense (net of interest income) of the Parent Guarantor and its Consolidated
Subsidiaries for such period including, without limitation, (i) the portion of
any obligation under Capital Leases allocable to interest expense in accordance
with generally accepted accounting principles, and (ii) the portion of any debt
discount or premium arising at issuance of such debt that shall be amortized in
such period.
"Consolidated Net Income" means for any period the consolidated net income
of the Parent Guarantor and its Consolidated Subsidiaries for such period.
"Consolidated Net Worth" means at any date (the "Date of Determination")
without duplication (i) the consolidated shareholders' equity (exclusive of the
cumulative foreign currency translation adjustment as determined in accordance
with generally accepted accounting principles) of the Parent Guarantor and its
Consolidated Subsidiaries as of the Date of Determination plus (ii) the
principal amount of all Management Equity Notes outstanding on the Date of
Determination. For purposes of this definition, consolidated shareholders'
equity includes Common Stock subject to potential repurchase pursuant to the
Stockholders' Agreement, as reflected in the consolidated financial statements
of the Parent Guarantor and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means, at any date with respect to any Person,
any Subsidiary or other entity the accounts of which would be consolidated with
those of such Person in the consolidated financial statements of such Person as
of such date.
"Consolidated Tangible Assets" means at any date the consolidated assets of
the Parent Guarantor and its Consolidated Subsidiaries determined as of such
date less their consolidated goodwill, all determined as of such date.
"Contingent Liability" means any quantifiable obligation or liability which
is of a type required to be disclosed as a contingent liability in the
consolidated financial statements of the Parent Guarantor and its Consolidated
Subsidiaries in accordance with generally accepted accounting principles;
provided that Guarantees constitute Debt and not Contingent Liabilities.
"Credit Agreement" means the Credit and Guaranty Agreement dated as of
January 7, 1998, as heretofore or hereafter amended and/or restated, among
ARAMARK Uniform & Career Apparel Group, Inc. and ARAMARK Services, Inc., as
borrowers, ARAMARK Corporation, as guarantor, the banks from time to time party
thereto and The Chase Manhattan Bank and Morgan Guaranty Trust Company of New
York, as agents.
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"Credit Exposure" means, with respect to any Lender at any time, (i) the
amount of its Commitment at such time or (ii) if the Commitments have
terminated, the aggregate outstanding principal amount of its Loans at such
time.
"Debt" of any Person means, without duplication, (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services, except
trade accounts payable arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under Capital Leases, (v) all obligations
of such Person to purchase securities which arise out of or in connection with
the sale of the same or substantially similar securities, (vi) all noncontingent
obligations (and, for purposes of Section 5.07, all contingent obligations) of
such Person to reimburse any other Person for amounts which have been drawn
under a letter of credit or similar instrument, (vii) all Debt of others secured
by a Lien on any asset of such Person, whether or not such Debt is assumed by
such Person (such Debt to have a principal amount, for purposes of
determinations under this Agreement, not exceeding the net unencumbered carrying
value of such asset under generally accepted accounting principles), and (viii)
all Debt of others Guaranteed by such Person (such Debt to have a principal
amount, for purposes of determinations under this Agreement, not exceeding the
portion of such Debt Guaranteed by such Person).
"Default" means any condition or event that constitutes an Event of Default
or that with the giving of notice or lapse of time or both would, unless cured
or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Disposition" means the sale, assignment, transfer or other disposition by
any Person of any asset or assets in a transaction or series of related
transactions.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close.
"Domestic Lending Office" means, as to each Lender, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
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"EBITDA" means for any period Consolidated Net Income for such period,
excluding therefrom any extraordinary items of gain or loss, plus the aggregate
amounts deducted in determining Consolidated Net Income for such period in
respect of (i) income taxes, (ii) Consolidated Interest Charges and (iii)
depreciation, amortization and other similar non-cash charges. If the period
for which EBITDA is calculated includes a date on which the Parent Guarantor or
any of its Consolidated Subsidiaries made a Major Asset Acquisition or Major
Asset Sale, then EBITDA for such period shall be calculated on a pro forma basis
as if such acquisition or sale had occurred on the first day thereof.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 11.09.
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of a Lender;
(iii) an Approved Fund; and (iv) any other Person (other than a natural Person)
approved by the Administrative Agent and, unless (x) such Person is taking
delivery of an assignment in connection with physical settlement of a credit
derivatives transaction to which the Borrower has previously given its consent
(not to be unreasonably withheld) or (y) an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed). If the consent of the Borrower to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment thresholds specified in paragraph (b)(i) of
Section 11.07), the Borrower shall be deemed to have given its consent five
Domestic Business Days after the date notice thereof has been delivered by the
assigning Lender (through the Administrative Agent) unless such consent is
expressly refused by the Borrower prior to such fifth Domestic Business Day.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Parent Guarantor, any Subsidiary and all members of
a controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Parent Guarantor or
any Subsidiary, are treated as a single employer under Section 414 of the
Internal Revenue Code.
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"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Lender
as it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Administrative Agent.
"Euro-Dollar Loan" means any Loan in respect of which interest is to be
computed on the basis of a Euro-Dollar Rate.
"Euro-Dollar Margin" has the meaning set forth in Section 2.05(b).
"Euro-Dollar Rate" means a rate of interest determined pursuant to Section
2.05 on the basis of a London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor), for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents).
"Events of Default" has the meaning set forth in Section 6.01.
"Excess Contingent Liabilities" means at any time all Contingent
Liabilities of the Parent Guarantor and its Subsidiaries other than:
(a) surety or fidelity bonds or letters of credit issued on behalf of the
Parent Guarantor or any of its Subsidiaries issued in the normal course of
business of the Parent Guarantor or such Subsidiary, as the case may be; and
(b) other Contingent Liabilities in an aggregate amount not exceeding
$100,000,000.
"Excess Secured Debt" means secured Debt other than Debt secured by Liens
permitted pursuant to clauses (a) through (g) of Section 5.07.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided
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that (i) if such day is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if no such rate is so published on such next succeeding Domestic Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to
JPMorgan Chase Bank on such day on such transactions as determined by the
Administrative Agent.
"Financing Documents" means this Agreement, the Notes and the Subsidiary
Guaranty Agreement.
"Fiscal Year" means a fiscal year of the Parent Guarantor.
"Fund" means any Person (other than a natural Person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Group" means at any time a group of Loans consisting of (i) all Loans
which are Base Rate Loans at such time or (ii) all Euro-Dollar Loans having the
same Interest Period at such time, provided that, if a Loan of any particular
Lender is converted to or made as a Base Rate Loan pursuant to Article 8, such
Loan shall be included in the same Group or Groups of Loans from time to time as
it would have been in if it had not been so converted or made.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hazardous Substances" means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent elements displaying any of
the foregoing characteristics.
"Interest Period" means, with respect to each Euro-Dollar Loan, the period
commencing on the Borrowing Date or on the date specified in the applicable
Notice of Interest Rate Election and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable notice; provided that:
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(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to the further proviso below, end on the last Euro-Dollar
Business Day of a calendar month; and
(c) no Interest Period may end after the maturity date of the Loans.
"JPMorgan Chase Bank" means JPMorgan Chase Bank and its successors.
"Lender" means each financial institution listed on the signature pages
hereof, and (subject to Section 11.07) its successors and assigns, and "Lenders"
means all of the foregoing.
"Leverage Ratio" means on any date (the "Date of Determination") the ratio
of (A) EBITDA for the four most recent fiscal quarters of the Parent Guarantor
ended on or prior to the Date of Determination to (B) Total Borrowed Funds as of
the last day of the most recent fiscal quarter of the Parent Guarantor ended on
or prior to the Date of Determination.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purpose of this Agreement, the Parent Guarantor or any of its
Subsidiaries shall be deemed to own subject to a Lien any asset that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement or other title retention agreement relating to such
asset or any Capital Lease.
"Loan" means a loan made by a Bank pursuant to Section 2.01; provided that,
if any such loan or loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term Loan shall refer to the
combined principal amount resulting from such combination or to each of the
separate principal amounts resulting from such subdivision, as the case may be.
"London Interbank Offered Rate" has the meaning set forth in Section
2.05(b).
"Major Asset Acquisition" means any acquisition for cash or other
consideration by the Parent Guarantor or any of its Subsidiaries, or any series
of such acquisitions of (a) any asset, (b) any group of related assets or (c)
any shares of capital stock or any other ownership interest in any Person;
provided that in the case of any such acquisition, or such series of
acquisitions, the aggregate of all consideration (including cash and the fair
market value (as certified by a Principal Officer of the Parent Guarantor) of
all other con-
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sideration paid by the Parent Guarantor or any of its Subsidiaries) for or in
respect of such acquisition, or such series of acquisitions, exceeds
$25,000,000; and provided further that no such acquisition or series of
acquisitions from the Parent Guarantor or any Subsidiary of the Parent Guarantor
shall constitute a Major Asset Acquisition.
"Major Asset Sale" means any Disposition by the Parent Guarantor or any of
its Subsidiaries of a Single Asset; provided that in the case of any such
Disposition the aggregate of all cash and the fair market value (as certified by
a Principal Officer of the Parent Guarantor) of all property received by the
Parent Guarantor or any of its Subsidiaries from or in respect of such
Disposition exceeds $25,000,000; and provided further that (i) no such
Disposition by any Wholly Owned Subsidiary of the Parent Guarantor to any other
Wholly Owned Subsidiary of the Parent Guarantor shall constitute a Major Asset
Sale and (ii) no Sale and Leaseback Transaction shall constitute a Major Asset
Sale.
"Management Equity Note" means a subordinated promissory note of the Parent
Guarantor carrying an interest rate no higher than the market interest rate
payable in respect of debt with comparable terms issued by comparable issuers,
substantially in the form of Exhibit E hereto, issued to management or former
management (including directors) of the Parent Guarantor in exchange for shares
of Common Stock pursuant to the Stockholders' Agreement or in exchange for
Series Preferred Stock.
"Margin Stock" means "margin stock" as such term is defined in Regulation U
of the Board of Governors of the Federal Reserve System, as the same may be
amended, supplemented or modified from time to time.
"Material Financial Obligations" means a principal or face amount of Debt
and/or payment or collateralization obligations in respect of Derivatives
Obligations of the Parent Guarantor and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions, exceeding in the
aggregate $25,000,000.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five-year period.
"Net Cash Proceeds" means, with respect to any event (a) the cash proceeds
received in respect of such event including any cash received in respect of any
non-cash proceeds, but only as and when received, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by the Parent Guarantor and its
Subsidiaries to third parties in connection with such event, (ii) in the case of
a sale, transfer or other disposition of an asset (including pursuant to a sale
and leaseback transaction or a casualty or a condemnation or similar
proceeding), the amount of all payments required to be made by the Parent
Guarantor and its Subsidiaries as a result of such event to repay Debt (other
than Loans) secured by such asset or otherwise subject to mandatory prepayment
as a result of such event, (iii) the amount of all taxes paid (or reasonably
estimated to be
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payable) by the Parent Guarantor and its Subsidiaries, and the amount of any
reserves established by the Parent Guarantor and its Subsidiaries to fund
contingent liabilities reasonably estimated to be payable, in each case during
the year that such event occurred or the next succeeding year and that are
directly attributable to such event (as determined reasonably and in good faith
by the chief financial officer of the Parent Guarantor), and (iv) in the case of
a public offering by the Parent Guarantor of any Common Stock, the amount
expended by the Parent Guarantor for repurchases of Common Stock on or after the
date of pricing of the initial such public offering and on or prior to the 75th
day following the consummation of the initial such public offering (or such
earlier time as the Borrower shall designate by notice to the Administrative
Agent) and not theretofore taken into account in the calculation of Net Cash
Proceeds.
"Notes" means promissory notes of the Borrower, substantially in the form
of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.02(a).
"Notice of Interest Rate Election" has the meaning set forth in Section
2.11(a)(ii).
"Obligors" means the Borrower, the Parent Guarantor and each Subsidiary
from time to time party to the Subsidiary Guaranty Agreement.
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Parent Guarantor" means ARAMARK Corporation, a Delaware corporation and
its successors.
"Participant" has the meaning set forth in Section 11.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title I or IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Prepayment Event" means:
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(a) any sale, lease or other disposition (including any such transaction
effected by way of merger or consolidation) by the Parent Guarantor or any of
its Subsidiaries of any asset, including without limitation any sale-leaseback
transaction, whether or not involving a capital lease, but excluding (i)
dispositions of temporary cash investments, inventory and used, surplus or worn
out equipment in the ordinary course of business, (ii) dispositions to the
Parent Guarantor or a Subsidiary of the Parent Guarantor, (iii) any disposition
of assets in one or more related transactions of Target for Net Cash Proceeds
not exceeding $25,000,000 in the aggregate, and (iv) any disposition of assets
in one or more related transactions of the Parent Guarantor or a Subsidiary
(other than assets of Target) for Net Cash Proceeds not exceeding $75,000,000 in
the aggregate; or
(b) the issuance by the Parent Guarantor or any Subsidiary of any equity
securities, or the receipt by the Parent Guarantor or any Subsidiary of any
capital contribution, other than (i) any such issuance of equity securities to,
or receipt of any such capital contribution from, the Parent Guarantor or a
Subsidiary and (ii) the issuance by the Parent Guarantor of Common Stock
pursuant to employee benefit or employee stock option plans in the ordinary
course of business ; provided that in the case of a public offering by the
Parent Guarantor of its Common Stock, the related Prepayment Event shall be
deemed to occur on the date 75 days after the pricing of the initial such public
offering (or such earlier date as the Borrower may designate by notice to the
Administrative Agent); or
(c) the issuance by the Parent Guarantor or any Subsidiary of any debt
securities; or
(d) the establishment by the Parent Guarantor or any Subsidiary of any new
committed loan facility, or an increase in the amount available under any
existing committed loan facility of the Parent Guarantor or any Subsidiary
(which shall be deemed for purposes of Section 2.03 to produce gross cash
proceeds to the Parent Guarantor or such Subsidiary equal to the incremental
amount available as a consequence of such establishment or increase, whether or
not borrowed at the time).
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means the rate of interest publicly announced from time to
time by JPMorgan Chase Bank at its main offices in New York City as its prime
rate.
"Principal Officer" means the chief executive officer, chief operating
officer, chief financial officer, chief accounting officer, any executive vice
president, treasurer or general counsel of the Parent Guarantor or a Borrower.
"Qualification" means, with respect to any report of independent public
accountants covering financial statements of a Person, (a) an explanatory
paragraph with respect to the continued existence of such Person, as
contemplated by Statement on Auditing Standards No. 59, or (b) a qualification
to such report (such as an "except for" statement therein) (i) resulting from a
limitation on the scope of audit of such financial statements or the underlying
data, (ii) resulting from a change in accounting principles to
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which such independent public accountants take exception or (iii) which could be
eliminated by changes in financial statements or notes thereto covered by such
report (such as, by the creation of or increase in a reserve or a decrease in
the carrying value of assets) and which if so eliminated by the making of any
such change and after giving effect thereto would occasion a Default, provided
that neither of the following shall constitute a Qualification: (x) an
explanatory paragraph relating to a change in accounting principles to which
such independent public accountants take no exception or (y) an explanatory
paragraph relating to the outcome or disposition of any uncertainty, including
but not limited to threatened litigation, pending litigation being contested in
good faith, pending or threatened claims or other contingencies, the impact of
which litigation, claims, contingencies or uncertainties cannot be determined
with sufficient certainty to permit quantification in such financial statements.
"Quarterly Date" means each March 31, June 30, September 30 and December
31.
"Reference Banks" means the principal London offices of Citibank, N.A. and
JPMorgan Chase Bank. "Reference Bank" means any one of such Reference Banks.
"Regulation U" has the meaning set forth in Section 5.13.
"Required Lenders" means at any time Lenders having at least 51% of the
aggregate amount of the Credit Exposures.
"Sale and Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Parent Guarantor or any Subsidiary of any
property that, or of any property similar to and used for substantially the same
purposes as any other property that, has been or is to be sold, assigned,
transferred or otherwise disposed of by the Parent Guarantor or any of its
Subsidiaries to such Person with the intention of entering into such a lease.
"Series Preferred Stock" means any series of Series Preferred Stock issued
by the Parent Guarantor from time to time.
"Single Asset" means, in the case of any Disposition by the Parent
Guarantor or any of its Subsidiaries, (a) any asset, (b) any group of assets
used in connection with the same line of business of the Parent Guarantor or
such Subsidiary prior to such sale, assignment, transfer or other disposition or
(c) any shares of capital stock or any other ownership interest in any Person.
"Stockholders' Agreement" means the Amended and Restated Stockholders'
Agreement dated as of December 14, 1994 among the Parent Guarantor and the
investors listed therein, as the same may be amended from time to time.
"Subsidiary" means, with respect to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the
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time directly or indirectly owned by such Person. As used herein, the term
"Subsidiary" shall be deemed to refer to a Subsidiary of the Parent Guarantor
unless otherwise specified.
"Subsidiary Guaranty Agreement" means the Subsidiary Guaranty Agreement
dated as of the date hereof among the Borrower, the Parent Guarantor and certain
Subsidiaries, in the form of Exhibit D hereto.
"Target" means the Management Services Division of The ServiceMaster
Company.
"Total Borrowed Funds" means at any date the sum of (i) all Debt of the
Parent Guarantor and its Consolidated Subsidiaries that would be required to be
reflected on or referred to in a consolidated balance sheet of the Parent
Guarantor and its Consolidated Subsidiaries at such date (including without
limitation all Capital Leases of and, except as set forth below, all Debt
Guaranteed by the Parent Guarantor and its Consolidated Subsidiaries but
excluding (x) Debt Guaranteed by the Parent Guarantor and its Consolidated
Subsidiaries outstanding on January 7, 1998 in an aggregate principal amount not
exceeding $10,000,000 and (y) the Management Equity Notes) and (ii) Excess
Contingent Liabilities.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Wholly Owned Domestic Material Subsidiary" means, with respect to any
Person, a Wholly Owned Subsidiary that (i) is organized under the laws of the
United States, any state thereof or any political subdivision thereof or therein
and (ii) whose total assets (or in the case of any Subsidiary which itself has
Subsidiaries, the consolidated total assets of such Subsidiary and its
Consolidated Subsidiaries) are at least 5% of the consolidated total assets of
the Parent Guarantor and its Consolidated Subsidiaries, as shown by the
financial statements then most recently delivered pursuant to Section 5.01
provided that if the Parent Guarantor determines in good faith that a Subsidiary
does not have consolidated assets of at least 5% of the consolidated total
assets of the Parent Guarantor and its Consolidated Subsidiaries as at any
fiscal year-end, such determination shall be conclusive for purposes of this
Agreement and the Subsidiary Guaranty Agreement for a period of 270 days
following such fiscal year-end.
"Wholly Owned Subsidiary" means, with respect to any Person, any Subsidiary
all of the shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
such Person.
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Section 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles applied on a basis consistent with the
audited consolidated financial statements of the Parent Guarantor and its
Consolidated Subsidiaries for the fiscal year ended September 29, 2000 referred
to in paragraph (a) of Section 4.04 (except for changes to which independent
public accountants for the Parent Guarantor take no exception) provided that, if
the Borrower notifies the Administrative Agent that the Borrower wishes to amend
any covenant in Article 5 to eliminate the effect of any change in generally
accepted accounting principles on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to
amend Article 5 for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Parent
Guarantor, the Borrower and the Required Lenders..
ARTICLE 2
The Loans
Section 2.01. Commitments to Lend. On the Borrowing Date, each Lender
severally agrees, on the terms and conditions set forth in this Agreement, to
make a single loan to the Borrower in a principal amount which shall not exceed
the amount of such Lender's Commitment. The borrowing under this Section shall
be in an aggregate principal amount of $200,000,000 or any larger multiple of
$5,000,000 and shall be made from the Lenders ratably in proportion to their
respective Commitments. The Commitments are not revolving in nature, and shall
terminate at the close of business on the earlier of the Borrowing Date and
December 14, 2001.
Section 2.02. Notice of Borrowing; Funding of Loans. The Borrower shall
give the Administrative Agent notice (the "Notice of Borrowing") of its
intention to borrow the Loans at least one Domestic Business Day prior to the
Borrowing Date, if the Loans are initially to be Base Rate Loans, or at least
three Euro-Dollar Business Days prior to the Borrowing Date, if the Loans are
initially to be Euro-Dollar Loans, in each case specifying:
(i) the proposed Borrowing Date, which shall be a Domestic Business
Day if the Loans are initially to be Base Rate Loans or a Euro-Dollar
Business Day if the Loans are initially to be Euro-Dollar Loans,
(ii) the aggregate amount of the Loans to be borrowed,
(iii) whether the Loans are initially to be Base Rate Loans or Euro-
Dollar Loans, and
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(iv) in the case of Euro-Dollar Loans, the duration of the initial
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of the Notice of Borrowing, the Administrative Agent
shall promptly notify each Lender of the contents thereof and of the amount of
such Lender's Loan and the Notice of Borrowing shall not thereafter be revocable
by the Borrower.
(c) Not later than 12:00 Noon (New York City time) on the Borrowing Date,
each Lender shall make available the amount of its Loan, in Federal or other
funds immediately available in New York City, to the Administrative Agent at its
address specified in or pursuant to Section 11.01. Unless the Administrative
Agent determines that any applicable condition specified in Article 3 has not
been satisfied, the Administrative Agent will make the funds so received from
the Lenders available to the Borrower on such date at the Administrative Agent's
aforesaid address.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the Borrowing Date that such Lender will not make available to
the Administrative Agent the amount of its Loan, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent on the Borrowing Date in accordance with subsection (c) of this Section
2.02 and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such amount available to the
Administrative Agent, such Lender and the Borrower severally agree to repay to
the Administrative Agent forthwith on demand (or within one Domestic Business
Day, in the case of the Borrower) such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Administrative Agent,
at in the case of the Borrower, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable thereto pursuant to Section
2.05 and in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
so repaid shall constitute such Lender's Loan for purposes of this Agreement.
Section 2.03. Maturity of Loans; Mandatory Prepayments. (a) Scheduled
Maturity. Each Loan shall mature, and the principal amount thereof shall be due
and payable, on the first anniversary of the Borrowing Date.
(b) Prepayment Events. In addition, the Loans shall be prepaid by an
amount equal to the Net Cash Proceeds that the Parent Guarantor or any of its
Subsidiaries shall at any time or from time to time after the date hereof
receive in connection with a Prepayment Event. Each such prepayment shall be
made within five Euro-Dollar Business Days of receipt by the Parent Guarantor or
any of its Subsidiaries, as the case may be, of such Net Cash Proceeds, provided
that
(i) if the Net Cash Proceeds in respect of any Prepayment Event are
less than $5,000,000, such prepayment shall be effective upon receipt of
proceeds
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such that, together with all other such amounts not previously applied such
Net Cash Proceeds is equal to at least $5,000,000; and
(ii) if any prepayment would otherwise require prepayment of Euro-
Dollar Loans or portions thereof prior to the last day of the then current
Interest Period, then such prepayment shall, unless the Administrative
Agent otherwise notifies the Borrower upon the instructions of the Required
Lenders, be deferred to the last day of such Interest Period.
The Borrower shall give the Administrative Agent at least three Euro-Dollar
Business Days' notice of each prepayment required to be made pursuant to this
subsection (b).
(c) Applications of Prepayments.
(i) Each prepayment shall be applied ratably to the respective
Loans of all of the Lenders.
(ii) Each payment of principal of the Loans shall be made together
with interest accrued on the amount repaid to the date of payment.
(iii) Each prepayment of the Loans shall be applied to such Group or
Groups of Loans as the Borrower may designate (or, failing such
designation, as determined by the Administrative Agent).
Section 2.04. Notes. (a) The Loan(s) of each Lender shall be evidenced by
a single Note payable to the order of such Lender for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Lender's Loans.
(b) Each Lender may, by notice to a Borrower and the Administrative Agent,
request that its Loans of a particular type be evidenced by a separate Note in
an amount equal to the aggregate unpaid principal amount of such Loans. Each
such Note shall be in substantially the form of Exhibit A hereto with
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type. Each reference in this Agreement to the "Note" of such Lender
shall be deemed to refer to and include either or both of such Notes, as the
context may require.
(c) Upon receipt of each Lender's Note pursuant to Section 3.01, the
Administrative Agent shall deliver, by hand or overnight courier, such Note to
such Lender. Each Lender shall record the date, amount and type of each Loan to
be evidenced by its Note and the date and amount of each payment of principal
made by the Borrower with respect thereto and may, if a Lender so elects in
connection with any transfer or enforcement of its Note, and is hereby
irrevocably authorized by the Borrower to, endorse on the schedules forming a
part thereof appropriate notations to evidence such information and attach to
and make a part of any Note a continuation of any such schedule as and when
required. Notwithstanding the foregoing provisions of this paragraph (c),
neither the obligations of any Obligor nor the rights of any Lender shall be
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affected by the failure of any Lender to appropriately record such information
on any Note.
Section 2.05. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable at maturity, quarterly in
arrears on each Quarterly Date prior to maturity and, with respect to the
principal amount of any Base Rate Loan converted to a Euro-Dollar Loan, on the
date of such conversion. Any overdue principal of or interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the rate otherwise applicable to Base Rate
Loans for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Euro-Dollar Margin for such day plus
the London Interbank Offered Rate applicable to such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum determined in accordance with
the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest Period means
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars are offered to each of
the Reference Banks in the London interbank market at approximately 11:00 A.M.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for such
day plus the London Interbank Offered Rate applicable to the Interest Period for
such Loan immediately before such payment was due and (ii) the sum of 2% plus
the Euro-Dollar Margin for such day plus the quotient obtained (rounded upward,
if necessary, to the next higher 1/100 of 1%) by dividing (x) the average
(rounded upward, if necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which one day (or, if such amount due remains unpaid more
than three Euro-Dollar Business Days, then for such other period of time not
longer than six months as the Administrative Agent may select) deposits in
dollars in an amount approximately equal to such overdue payment due to each of
the Reference Banks are offered to such Reference Bank in the London interbank
market for the applicable period determined as provided above by (y) 1.00 minus
the Euro-Dollar Reserve Percentage (or, if the circumstances described in clause
(a) or (b) of
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Section 8.01 shall exist, at a rate per annum equal to the sum of 2% plus the
rate applicable to Base Rate Loans for such day).
(d) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder. The Administrative Agent shall give prompt notice to the
Borrower of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
(e) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
Section 2.06. Optional Prepayments. (a) Subject in the case of Euro-
Dollar Loans to Section 2.08, the Borrower may, upon at least one Domestic
Business Day's notice to the Administrative Agent, prepay any Group of Base Rate
Loans or upon at least three Euro-Dollar Business Days' notice to the
Administrative Agent, prepay any Group of Euro-Dollar Loans, in each case in
whole at any time, or from time to time in part in amounts aggregating
$5,000,000 or any larger multiple of $5,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such prepayment shall be applied to prepay ratably the Loans of the several
Lenders included in such Group.
(b) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of such Lender's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
Section 2.07. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans, not later than
12:00 Noon (New York City time) on the date when due, in Federal or other funds
immediately available in New York City, to the Administrative Agent at its
address referred to in Section 11.01. The Administrative Agent will promptly
distribute to each Lender its ratable share of each such payment received by the
Administrative Agent for the account of the Lenders. Whenever any payment of
principal of, or interest on, the Base Rate Loans shall be due on a day which is
not a Domestic Business Day, the date for payment thereof shall be extended to
the next succeeding Domestic Business Day. Whenever any payment of principal
of, or interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
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(b) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due from the Borrower to the
Lenders hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment, each Lender shall
repay to the Administrative Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate.
Section 2.08. Funding Losses. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted (pursuant to Article 2, 6 or 8 or otherwise) on any day other than the
last day of an Interest Period applicable thereto, or the last day of an
applicable period fixed pursuant to Section 2.05(c), or if the Borrower fails to
borrow, prepay, convert or continue any Euro-Dollar Loans after notice has been
given to any Lender in accordance with Section 2.02, 2.06 or 2.11, the Borrower
shall reimburse each Lender on demand for any resulting loss or expense incurred
by it (or by any existing or prospective Participant in the related Loan),
including (without limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of margin for the
period after any such payment or conversion or failure to borrow, prepay,
convert or continue, provided that such Lender shall have delivered to the
Borrower a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error.
Section 2.09. Computation of Interest and Fees.. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest shall
be computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
Section 2.10. Regulation D Compensation. Each Lender may require the
Borrower to pay, contemporaneously with each payment of interest on the Euro-
Dollar Loans, additional interest on the related Euro-Dollar Loan of such Lender
at a rate per annum determined by such Lender up to but not exceeding the excess
of (i) (A) the applicable London Interbank Offered Rate divided by (B) one minus
the Euro-Dollar Reserve Percentage over (ii) the applicable London Interbank
Offered Rate. Any Lender wishing to require payment of such additional interest
(x) shall so notify the Borrower and the Administrative Agent, in which case
such additional interest on the Euro-Dollar Loans of such Lender shall be
payable to such Lender at the place indicated in such notice with respect to
each Interest Period commencing at least three Euro-Dollar Business Days after
the giving of such notice, and (y) shall notify the Borrower at least three
Euro-Dollar Business Days prior to each date on which interest is payable on the
Euro-Dollar Loans of the amount then due it under this Section.
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Section 2.11. Method of Electing Interest Rates. (a) The Loans shall bear
interest initially at the type of rate specified by the Borrower in the Notice
of Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group (subject in each case to
the provisions of Article 8 and the last sentence of this subsection(a)), as
follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect
to convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day; and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, effective on the last
day of the then current Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of
Interest Rate Election") to the Administrative Agent not later than 11:00 A.M.
(New York City time) on the third Euro-Dollar Business Day before the conversion
or continuation selected in such notice is to be effective. A Notice of
Interest Rate Election may, if it so specifies, apply to only a portion of the
aggregate principal amount of the relevant Group; provided that (i) such portion
is allocated ratably among the Loans comprising such Group and (ii) the portion
to which such Notice applies, and the remaining portion to which it does not
apply, are each $20,000,000 or any larger multiple of $5,000,000. If no such
notice is timely received prior to the end of an Interest Period, the Borrower
shall be deemed to have elected that all Loans having such Interest Period be
converted to Base Rate Loans at the end of such Interest Period.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted,
the new type of Loans and, if the Loans being converted are to be Euro-
Dollar Loans, the duration of the next succeeding Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the Borrower
pursuant to subsection (a) above, the Administrative Agent shall promptly notify
each
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Lender of the contents thereof and such notice shall not thereafter be revocable
by the Borrower.
ARTICLE 3
Conditions To Borrowing
Section 3.01. Conditions To Borrowing. The obligation of each Lender to
make a Loan on the Borrowing Date is subject to the satisfaction of such of the
following conditions as shall not have been expressly waived in writing by the
Required Lenders;
(a) receipt by the Administrative Agent of the Notice of Borrowing as
required by Section 2.02;
(b) the fact that, prior to or substantially simultaneously with the
making of the Loans, the Acquisition shall have been consummated;
(c) the fact that, immediately before and after the making of the Loans,
no Default shall have occurred and be continuing;
(d) the fact that each of the representations and warranties made by the
Obligors in or pursuant to the Financing Documents shall be true and correct in
all material respects on and as of the Borrowing Date;
(e) the fact that the making of the Loans will not violate any provision
of law or regulation applicable to any Lender (including, without limiting the
generality of the foregoing, Regulations U and X of the Board of Governors of
the Federal Reserve System) as then in effect;
(f) receipt by the Administrative Agent for the account of each Lender of
a duly executed Note dated on or before the Effective Date complying with the
provisions of Section 2.04;
(g) receipt by the Administrative Agent of counterparts of all other
Financing Documents signed by each of the parties thereto (or, in the case of
any party as to which an executed counterpart shall not have been received,
receipt by the Administrative Agent in form satisfactory to it of telegraphic,
telex or other written confirmation from such party of execution of a
counterpart thereof by such party);
(h) receipt by the Administrative Agent (i) for its own account of the
fees set forth in Section 7.08 and (ii) for the account of the Lenders, of
participation fees in the amounts heretofore mutually agreed upon;
(i) receipt by the Administrative Agent of a certificate of a Principal
Officer of the Parent Guarantor and of the Borrower that, upon the Borrowing
Date, no Default shall have occurred and be continuing and that each of the
representations and warranties made
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by the Obligors in or pursuant to the Financing Documents are true and correct
in all material respects;
(j) receipt by the Administrative Agent of an opinion of the General
Counsel or Associate General Counsel of the Borrower and the Parent Guarantor,
substantially in the form of Exhibit B hereto and covering such additional
matters relating to the transactions contemplated hereby as the Required Lenders
may reasonably request;
(k) receipt by the Administrative Agent of an opinion of Davis Polk &
Wardwell, special counsel for the Administrative Agent, substantially in the
form of Exhibit C hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Lenders may reasonably request;
and
(l) receipt by the Administrative Agent of all documents they may
reasonably request relating to the existence of the Borrower and the Parent
Guarantor, the corporate authority for and the validity and enforceability of
the Financing Documents, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent.
ARTICLE 4
Representations And Warranties
The Parent Guarantor and the Borrower represent and warrant to the
Administrative Agent and each Lender that, as of the date hereof and as of the
Borrowing Date:
Section 4.01. Corporate Existence and Power. Each of the Parent Guarantor,
the Borrower and each of their respective Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted (except, in the case of such Subsidiaries, to
the extent that failure to comply with the foregoing statements could not, in
the aggregate, affect the business, financial position, results of operations or
prospects of the Parent Guarantor and its Consolidated Subsidiaries in a manner
material and adverse to the creditworthiness of the Borrower and the other
Obligors, considered as a whole), and each of the Parent Guarantor, the Borrower
and each of their respective Subsidiaries is duly qualified as a foreign
corporation, licensed and in good standing in each jurisdiction where
qualification or licensing is required by the nature of its business or the
character and location of its property, business or customers and in which the
failure so to qualify or be licensed, as the case may be, in the aggregate,
could affect the business, financial position, results of operations or
prospects of the Parent Guarantor and its Consolidated Subsidiaries in a manner
material and adverse to the creditworthiness of the Borrower and the other
Obligors, considered as a whole.
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Section 4.02. Corporate and Governmental Authorization; No Contravention.
The execution and delivery by each Obligor of each of the Financing Documents to
which it is a party and the performance by such Obligor of its obligations
thereunder are within the corporate power of such Obligor, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the charter or by-laws of such Obligor or of any agreement or
instrument relating to Debt of the Parent Guarantor or any Subsidiary or any
other agreement, judgment, injunction, order, decree or other instrument binding
upon such Obligor material to the business of the Parent Guarantor and its
Consolidated Subsidiaries, considered as a whole, or result in the creation or
imposition of any Lien on any asset of the Parent Guarantor or any Subsidiary.
Section 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of each of the Parent Guarantor and the Borrower and the other
Financing Documents, when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of each Obligor that is
a party thereto, in each case enforceable in accordance with its terms.
Section 4.04. Financial Information. (a) The consolidated balance sheet of
the Parent Guarantor and its Consolidated Subsidiaries as of September 29, 2000
and the related consolidated statements of income and cash flows for the fiscal
year then ended, reported on by Arthur Andersen LLP, a copy of which has been
delivered to each of the Lenders, fairly present, in conformity with generally
accepted accounting principles in the United States, the consolidated financial
position of the Parent Guarantor and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such fiscal
year.
(b) The unaudited condensed consolidated balance sheet of the Parent
Guarantor and its Consolidated Subsidiaries as of June 29, 2001 and the related
unaudited condensed consolidated statements of income and cash flows for the
nine months then ended included in the Company's Form 10-Q filed with the
Securities and Exchange Commission (a copy of which has been delivered to each
of the Lenders), fairly present, in accordance with generally accepted
accounting principles applied on a basis consistent with the financial
statements referred to in subsection (a) of this Section, except for the change
in accounting for non-refundable registration fees described in note 7 thereto,
the consolidated financial position of the Parent Guarantor and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such nine-month period (subject to normal year-end adjustments).
(c) Since September 29, 2000, there has been no change in the business,
financial position or results of operations of the Parent Guarantor and its
Consolidated Subsidiaries which materially and adversely affects the credit-
worthiness of the Borrower and the other Obligors, considered as a whole.
Section 4.05. Litigation. There is no action, suit or proceeding pending
against, or to the knowledge of a Principal Officer threatened against, the
Parent Guarantor, the
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Borrower or any of their respective Subsidiaries before any court or arbitrator
or any governmental body, agency or official in which there is a reasonable
likelihood of an adverse decision which would affect the business, financial
position or results of operations of the Parent Guarantor and its Consolidated
Subsidiaries in a manner material and adverse to the credit-worthiness of the
Borrower and the other Obligors, considered as a whole, or which in any manner
questions the validity or enforceability of any Financing Document.
Section 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Code in respect of any Plan, (ii)
failed to make any contribution or payment to any Plan or Multiemployer Plan or
in respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA or the Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
Section 4.07. Environmental Matters. The Parent Guarantor has reasonably
concluded that the liabilities and costs associated with the effect of
Environmental Laws on the business, operations and properties of the Parent
Guarantor and its Subsidiaries, including the costs of compliance with
Environmental Laws, are unlikely to affect the business, financial condition,
results of operations or prospects of the Parent Guarantor and its Consolidated
Subsidiaries in a manner material and adverse to the creditworthiness of the
Borrower and the other Obligors, considered as a whole.
Section 4.08. Taxes. United States Federal income tax returns of ARAMARK
Services and its Subsidiaries have been examined and closed through the fiscal
year ended on September 29, 1995. The Parent Guarantor, the Borrower and each of
their respective Subsidiaries have filed all United States Federal income tax
returns and all other material tax returns that are required to be filed by them
and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by any of them, except for any such taxes being diligently
contested in good faith and by appropriate proceedings. Adequate reserves have
been provided on the books of the Parent Guarantor and its Subsidiaries in
respect of all taxes or other governmental charges in accordance with generally
accepted accounting principles, and no tax liabilities in excess of the amount
so provided are, in the good faith determination of the Parent Guarantor,
anticipated that could affect the business, financial position, results of
operations or prospects of the Parent Guarantor and its Consolidated
Subsidiaries in a manner material and adverse to the creditworthiness of the
Borrower and the other Obligors, considered as a whole.
Section 4.09. Compliance with Laws. The Parent Guarantor, the Borrower and
each of their respective Subsidiaries are, in the good faith determination of
the Parent Guarantor, in compliance with all applicable laws, rules and
regulations (including,
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without limitation, Environmental Laws and ERISA and the rules and regulations
thereunder), other than such laws, rules or regulations (i) the validity or
applicability of which the Parent Guarantor, a Borrower or such Subsidiary is
contesting in good faith or (ii) the failure to comply with which cannot
reasonably be expected to affect the business, financial position, results of
operations or prospects of the Parent Guarantor and its Consolidated
Subsidiaries in a manner material and adverse to the creditworthiness of the
Borrower and the other Obligors, considered as a whole.
Section 4.10. Not an Investment Company. None of the Obligors is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 4.11. Full Disclosure. All information heretofore furnished by the
Parent Guarantor or the Borrower to the Administrative Agent or any Lender for
purposes of this Agreement or any transaction contemplated hereby was, in the
good faith opinion of the Parent Guarantor at the time such information was
furnished, true and accurate in all material respects on the date as of which
such information was furnished, and such information as may have been modified
or superseded by any subsequently furnished information is true and accurate in
all material respects.
ARTICLE 5
Covenants
The Parent Guarantor and the Borrower agree that, so long as any Lender has
any Credit Exposure hereunder:
Section 5.01. Information. The Parent Guarantor will deliver to each of
the Lenders:
(a) within 90 days after the end of each fiscal year of the Parent
Guarantor, consolidated balance sheets of the Borrower and its respective
Consolidated Subsidiaries and of the Parent Guarantor and its Consolidated
Subsidiaries as of the end of such fiscal year, and the related consolidated
statements of income and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and, in the case of such balance sheet and related
consolidated statements of income and cash flows of the Parent Guarantor and its
Consolidated Subsidiaries, accompanied by an opinion thereon by Arthur Andersen
LLP or other independent public accountants of nationally recognized standing,
which opinion (x) shall state that such financial statements present fairly the
consolidated financial position of the companies being reported upon as of the
date of such financial statements and the consolidated results of their
operations and cash flows for the period covered by such financial statements in
conformity with generally accepted accounting principles and that the audit of
such accountants in connection with such financial statements has been conducted
in accordance with generally accepted auditing standards and (y) shall not
contain any Qualification;
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(b) within 60 days, in the case of the Parent Guarantor, and 75 days, in
the case of the Borrower, after the end of each of the first three quarters of
each fiscal year of the Parent Guarantor, consolidated balance sheets of the
Borrower and its Consolidated Subsidiaries and of the Parent Guarantor and its
Consolidated Subsidiaries, and the related consolidated statements of income for
such quarter and for the portion of the fiscal year ended at the end of such
quarter and cash flows for the portion of the fiscal year ended at the end of
such quarter, setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of the previous fiscal year,
if any, all prepared in accordance with Rule 10-01 of Regulation S-X of the
General Rules and Regulations under the Securities Act of 1933, or any successor
rule that sets forth the manner in which interim financial statements shall be
prepared, and certified (subject to normal year-end audit adjustments) as to
fairness of presentation and consistency by the chief financial officer or the
chief accounting officer of the Borrower or the Parent Guarantor, as applicable;
(c) simultaneously with the delivery of each set of financial statements
referred to in paragraphs (a) and (b) of this Section 5.01, a certificate of the
chief financial officer, Treasurer or chief accounting officer of the Parent
Guarantor setting forth in reasonable detail such calculations as are required
to establish whether the Parent Guarantor was in compliance with the
requirements of Sections 5.07 through 5.14, inclusive, on the date of such
financial statements, stating whether there exists on the date of such
certificate any Default and, if any Default then exists, setting forth the
details thereof and the action that the Parent Guarantor is taking or proposes
to take with respect thereto and stating whether, since the date of the most
recent financial statements previously delivered pursuant to paragraph (a) or
(b) of this Section 5.01, there has been a change in the generally accepted
accounting principles applied in preparing the financial statements then being
delivered from those applied in preparing the most recent financial statements
and, in the case of the Parent Guarantor, audited financial statements so
delivered which is material to the financial statements then being delivered;
(d) within five days after any officer of the Parent Guarantor obtains
knowledge of any Default, if such Default is then continuing, a certificate of
the chief financial officer, Treasurer or chief accounting officer of the Parent
Guarantor setting forth the details thereof and the action that the Parent
Guarantor is taking or proposes to take with respect thereto;
(e) promptly upon the receipt of a request therefor from the
Administrative Agent at the request of any Lender, copies of all financial
statements, reports and proxy statements that the Parent Guarantor shall have
mailed to its shareholders;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and annual, quarterly or monthly reports that the
Parent Guarantor or any of its Consolidated Subsidiaries shall have filed with
the Securities and Exchange Commission;
(g) excluding any event which has not resulted and will not result in a
potential liability of a member of the ERISA Group under Title IV of ERISA in an
amount in
26
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excess of $10,000,000, if and when any member of the ERISA Group gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which could reasonably lead to a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; receives notice of complete or partial
withdrawal liability under Title IV of ERISA in an amount greater than
$10,000,000 or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; receives notice from
the PBGC under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or appoint
a trustee to administer, any Plan, a copy of such notice; applies for a waiver
of the minimum funding standard under Section 412 of the Code, a copy of such
application; gives notice of intent to terminate any Plan under Section 4041(c)
of ERISA, a copy of such notice and other information filed with the PBGC; gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or fails to make any required payment or contribution to any Plan
or Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Parent Guarantor setting forth details as to such occurrence and action, if
any, which the applicable member of the ERISA Group is required or proposes to
take; and
(h) from time to time such additional information regarding the financial
position, results of operations, business or prospects of the Parent Guarantor
or any of its Subsidiaries as the Administrative Agent, at the request of any
Lender, may reasonably request.
Section 5.02. Payment of Obligations. The Parent Guarantor will, and will
cause each of its Subsidiaries to, pay and discharge, as the same shall become
due and payable, (i) all material claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other like Persons which, in any such
case, if unpaid, might by law give rise to a Lien upon any of its property or
assets, and (ii) all material taxes, assessments and governmental charges or
levies upon it or its property or assets, except where any of the items in
clause (i) or (ii) above may be contested in good faith by appropriate
proceedings, and the Parent Guarantor or such Subsidiary, as the case may be,
shall have set aside on its books, in accordance with generally accepted
accounting principles, appropriate reserves for the accrual of any such items.
Section 5.03. Maintenance of Property; Insurance. The Parent Guarantor
will keep, and will cause each of its Subsidiaries to keep, all material
property useful and necessary in its business in good working order and
condition in accordance with generally accepted industry standards applicable to
the line of business in which such property is used; will maintain and will
cause each of its Subsidiaries to maintain (either in the name of the Parent
Guarantor or in such Subsidiary's own name) with insurance companies which the
Parent Guarantor reasonably believes, at the time the relevant coverage is
placed or renewed, are financially sound and responsible, insurance on all
27
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their respective properties in at least such amounts and against at least such
risks (and with such risk retentions) as are usually insured against in the same
general area by companies of established repute engaged in the same or a similar
business; and will furnish to the Lenders, upon written request from the
Administrative Agent, information presented in reasonable detail as to the
insurance so carried. Notwithstanding the foregoing, the Parent Guarantor may,
in lieu of maintaining the insurance required by the preceding sentence, self-
insure, or cause any of its Subsidiaries to self-insure, with respect to the
properties and risks referred to in the preceding sentence to the extent that
such self-insurance is customary among companies of established repute engaged
in the line of business in which such properties are used or to which such risks
pertain.
Section 5.04. Conduct of Business and Maintenance of Existence. Subject to
Section 5.08, the Parent Guarantor will continue, and will cause each of its
Subsidiaries to continue, to engage in business of the same general type as now
conducted by the Parent Guarantor and its Subsidiaries, and will preserve, renew
and keep in full force and effect, and will cause each of its Subsidiaries to
preserve, renew and keep in full force and effect, their respective corporate
existences and their respective rights, privileges and franchises necessary or
desirable in the normal conduct of business; provided that, subject to Section
5.08, nothing in this Section 5.04 shall prohibit the termination of the
corporate existence of any Subsidiary (other than the Borrower) if the Parent
Guarantor in good faith determines that such termination is in the best interest
of the Parent Guarantor and is not adverse to the interests of the Lenders;
provided further that nothing in this Section 5.04 shall prohibit the
termination of the corporate existence of the Borrower or the Parent Guarantor,
if such termination is the result of the merger of the Borrower with the Parent
Guarantor in accordance with Section 5.08 hereof; provided further that nothing
in this Section 5.04 shall prohibit the termination of corporate existence of
the Parent Guarantor, if such termination is the result of the AWC Merger.
Section 5.05. Inspection of Property, Books and Records. The Parent
Guarantor will keep, and will cause each of its Subsidiaries to keep, proper
books of record and account in which full, true and correct entries in
conformity with generally accepted accounting principles shall be made of all
dealings and transactions in relation to its business and activities. The Parent
Guarantor, upon reasonable request by any Lender to the Treasurer of the Parent
Guarantor, will permit, and will cause each of its Subsidiaries to permit,
representatives of any Lender to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all at
such reasonable times and as often as may reasonably be desired.
Section 5.06. Maintenance of Stock of Borrower. The Parent Guarantor will
at all times maintain ownership of 100% of the outstanding shares of each class
of capital stock of the Borrower, unless the Borrower and the Parent Guarantor
shall have merged in accordance with Section 5.08.
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Section 5.07. Negative Pledge. The Parent Guarantor will not, and will not
permit any of its Subsidiaries to, create, assume or suffer to exist any Lien on
any asset now owned or hereafter acquired by the Parent Guarantor or any such
Subsidiary, except:
(a) Liens existing on the date of this Agreement securing Debt outstanding
on the date of this Agreement in an aggregate principal amount not exceeding
$10,000,000;
(b) any Lien existing on any asset prior to the acquisition thereof by the
Parent Guarantor or such Subsidiary and not created in contemplation of such
acquisition;
(c) any Lien existing on any asset of any Person at the time such Person
becomes a Subsidiary and not created in contemplation of such event;
(d) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
subsections of this Section 5.07, provided that the outstanding principal amount
of such Debt is not increased and is not secured by any additional assets;
(e) any Liens arising in the ordinary course of business of the Parent
Guarantor or any of its Subsidiaries which (i) do not secure Debt or Derivatives
Obligations and (ii) do not in the aggregate materially detract from the value
of the assets of the Parent Guarantor and its Consolidated Subsidiaries,
considered as a whole, or impair the use thereof in the operation of the
business of the Parent Guarantor and its Consolidated Subsidiaries, considered
as a whole; provided that any Lien on any asset of the Parent Guarantor or any
of its Subsidiaries arising in connection with a judgment in excess of
$25,000,000 (reduced, for purposes of this proviso, by any amount in respect
thereof that is acknowledged by a reputable insurer as being payable under any
valid and enforceable insurance policy issued by such insurer), whether or not
such judgment is being contested or execution thereof has been stayed, shall be
deemed not arising in the ordinary course of business of the Parent Guarantor or
such Subsidiary;
(f) Liens on cash and cash equivalents securing Derivatives Obligations,
provided that the aggregate amount of cash and cash equivalents subject to such
Liens may at no time exceed $25,000,000;
(g) any Lien not otherwise permitted by the foregoing provisions of this
Section 5.07 securing Debt (or Derivative Obligations, as measured by the amount
of the pledged collateral in excess of that permitted under (f)) in an aggregate
principal amount not to exceed an amount equal to 10% of Consolidated Tangible
Assets (excluding any such Lien securing any individual obligation in an amount
not in excess of $5,000,000); and
(h) any Lien on any asset or assets of the Parent Guarantor or any of its
Subsidiaries securing Excess Secured Debt, the Net Cash Proceeds of which are
applied to prepayment of the Loans or to the reduction of the "Commitments"
under the Credit Agreement.
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Section 5.08. Consolidations, Mergers and Sales of Assets. (a) Neither the
Parent Guarantor nor the Borrower shall consolidate or merge with or into any
Person, except that (i) the Parent Guarantor and the Borrower may merge with any
Person (other than each other) if the Parent Guarantor or the Borrower is the
surviving corporation and if, immediately after such merger (and giving effect
thereto), no Default shall have occurred and be continuing, (ii) the Parent
Guarantor and the Borrower may merge with each other, if (x) immediately after
such merger (and giving effect thereto), no Default shall have occurred and be
continuing and (y) the surviving corporation, whether it be the Parent Guarantor
or the Borrower, shall have signed an instrument of assumption in form and
substance satisfactory to the Required Lenders immediately prior to such merger
and (iii) the Parent Guarantor may consummate the AWC Merger so long as the
surviving corporation in the AWC Merger shall have delivered not later than the
date of consummation thereof an instrument of assumption of the obligations of
the Parent Guarantor under the Financing Documents and an opinion of counsel
with respect thereto, all in form and substance satisfactory to the
Administrative Agent (it being understood that documentation substantially
identical with that required pursuant to Amendment No. 2 to the Credit Agreement
will be satisfactory).
(b) The Parent Guarantor will not, and will not permit any of its
Subsidiaries to, sell, lease or otherwise transfer or dispose of to any Person
all or any substantial part of the assets of the Parent Guarantor and its
Subsidiaries, taken as a whole.
Section 5.09. Fixed Charge Coverage. As of the last day of each fiscal
quarter of the Parent Guarantor, the ratio of Consolidated Cash Flow Available
for Fixed Charges to Consolidated Fixed Charges, in each case for the four
fiscal quarters ending on such day, shall not be less than 2.0 to 1.0.
Section 5.10. Debt Coverage. As of the last day of each fiscal quarter of
the Parent Guarantor ending during a period set forth in the table below, the
Leverage Ratio at such day shall not be less than the ratio set forth in the
table below corresponding to the applicable period; provided that the Leverage
Ratio as of the last day of any fiscal quarter ending on or after the Equity
Issuance Date shall not be less than .300.
=================================================================
Period Leverage Ratio
-----------------------------------------------------------------
Prior to December 28, 2001 .300
-----------------------------------------------------------------
On or after December 28, 2001 and prior .270
to March 29, 2002
-----------------------------------------------------------------
On or after March 29, 2002 and prior to .280
June 28, 2002
-----------------------------------------------------------------
On or after June 28, 2002 and prior to .290
September 27, 2002
-----------------------------------------------------------------
On or after September 27, 2002 .300
=================================================================
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For purposes of this Section 5.10, the "Equity Issuance Date" is the
first date, if any, subsequent to November 1, 2001 and prior to September
27, 2002 that is 75 days after the date on which the Parent Guarantor shall
have consummated one or more public offerings of its Common Stock; provided
that the aggregate net cash proceeds of such public offerings, reduced by
the aggregate amount expended by the Parent Guarantor for repurchases of
its Common Stock on or after the date of pricing of the initial such public
offering and on or prior to the 75th day following the consummation of the
initial such public offering, are equal to or greater than $200,000,000.
Section 5.11. Minimum Consolidated Net Worth. Consolidated Net Worth shall
at no time be less than $100,000,000 plus an amount equal to 50% of Consolidated
Net Income for each Fiscal Year ending on or after September 28, 2001 but prior
to the date of determination for which Consolidated Net Income is positive (but
with no deduction on account of negative Consolidated Net Income for any fiscal
year of the Parent Guarantor).
Section 5.12. Transactions with Affiliates. The Parent Guarantor will not,
and will not permit any of its Subsidiaries to, directly or indirectly, engage
in any material transaction with an Affiliate unless the terms of such
transaction are determined on an arm's-length basis and are substantially as
favorable to the Parent Guarantor or such Subsidiary as the terms which could
have been obtained from a Person which was not an Affiliate.
Section 5.13. Use of Proceeds. The proceeds of Loans hereunder will be
used exclusively to finance the Acquisition, including related fees and
expenses. None of such proceeds will be used in violation of any applicable law
or regulation, including without limitation Regulation T, U or X of the Board of
Governors of the Federal Reserve System, as each is in effect from time to time.
After giving effect to the making of the Loans and application of the proceeds
thereof, Margin Stock that was Margin Stock at the time it was acquired by the
Parent Guarantor or any Subsidiary will not exceed 10% of the value of the total
assets (as determined in good faith by the board of directors of the Parent
Guarantor) of the Parent Guarantor and its Consolidated Subsidiaries, taken as a
whole.
Section 5.14. Restricted Payments. The Parent Guarantor will not
repurchase shares of its capital stock pursuant to Section 5 of the
Stockholders' Agreement (Put of Shares upon Death, Complete Disability or Normal
Retirement) unless the aggregate cash amount paid with respect to such
repurchase of shares, together with the aggregate cash amount paid in respect of
all prior repurchases of shares pursuant to Section 5 of the Stockholders'
Agreement made after January 7, 1998, shall not exceed an amount equal to the
greater of (x) $20,000,000 and (y) 5% of Consolidated Net Worth, as reflected in
the most recent balance sheet of the Parent Guarantor and its Consolidated
Subsidiaries referred to in Section 4.04(a) or delivered prior to such
repurchase pursuant to Section 5.01.
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ARTICLE 6
Defaults
Section 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing
(a) the Borrower shall fail to pay when due any principal of any Note; or
(b) the Borrower shall fail to pay any interest on any Note or any other
amount payable hereunder for a period of three Domestic Business Days after the
same shall become due; or
(c) any Obligor shall fail to observe or perform any covenant contained in
Sections 5.06 to 5.14, inclusive; or
(d) any Obligor shall fail to observe or perform any of its covenants or
agreements contained in the Financing Documents (other than those covered by
paragraph (a), (b) or (c) above) for 30 days after notice thereof has been given
to the Parent Guarantor by the Administrative Agent at the request of any
Lender; or
(e) any representation, warranty, certification or statement made or
deemed made by any Obligor in any Financing Document or in any certificate,
financial statement or other document delivered pursuant thereto shall prove to
have been incorrect in any material respect when made or deemed made; or
(f) the Parent Guarantor or any of its Subsidiaries shall fail to make any
payment in respect of any Material Financial Obligations when due or within any
applicable grace period; or
(g) any event or condition shall occur that results in the acceleration of
the maturity of Debt of the Parent Guarantor or any of its Subsidiaries
aggregating in excess of $25,000,000, or enables (or, with the giving of notice
or lapse of time or both, would enable) the holder or holders of such Debt or
any Person acting on behalf of such holder or holders to accelerate the maturity
thereof (it being understood that the prepayment by ARAMARK Services of (x) its
Senior Note (the "Senior Note") payable to Metropolitan Life Insurance Company
(the "Holder") or (y) any successor note (a "Successor Note") issued by ARAMARK
Services to the Holder in connection with the refinancing of the Debt evidenced
by the Senior Note (provided that the principal amount of any Successor Note is
not more than $150,000,000 and that such Successor Note is substantially in the
form of the Senior Note in all material respects other than principal amount,
amortization, maturity and interest rate), by reason of the refusal by the
Holder to consent to a proposed written waiver or amendment of this Agreement
insofar as the provisions hereof are incorporated by reference in the Senior
Note or the Successor Note, as the case may be, shall not constitute an event or
condition subject to this paragraph (g)); or
(h) the Parent Guarantor or any Subsidiary shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to itself
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or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally or admit
in writing its inability to pay its debts as they become due, or shall take
any corporate action to authorize any of the foregoing; or
(i) an involuntary case or other proceeding shall be commenced
against the Parent Guarantor or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Parent Guarantor or any Subsidiary under the Federal bankruptcy
laws as now or hereafter in effect; or
(j) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 which it shall have
become liable to pay under Title IV of ERISA (other than any such liability
which is being contested in good faith by appropriate proceedings and is
not secured by any Lien); or notice of intent to terminate a Plan or Plans
having aggregate Unfunded Liabilities in excess of $25,000,000 (a "Material
Plan") shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the
PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer, any
Material Plan; or a condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or
a default, within the meaning of Section 4219(c)(5) of ERISA, with respect
to, one or more Multiemployer Plans which could cause one or more members
of the ERISA Group to incur a current annual payment obligation in excess
of $25,000,000 or an aggregate payment obligation in excess of $25,000,000;
or
(k) a judgment or order for the payment of money in excess of
$15,000,000 (reduced, for purposes of this paragraph (k), by any amount in
respect thereof that is acknowledged by a reputable insurer as being
payable under any valid and enforceable insurance policy issued by such
insurer) shall be rendered against the Parent Guarantor or any of its
Subsidiaries and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(l) any Wholly Owned Domestic Material Subsidiary shall not have
entered into the Subsidiary Guaranty Agreement within 30 days after the
later of the date hereof or the date on which such Wholly Owned Domestic
Material Subsidiary shall have become a Wholly Owned Domestic Material
Subsidiary; provided that the foregoing provision of this paragraph (l)
shall not apply to any Wholly Owned Domestic Material
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Subsidiary if such Wholly Owned Domestic Material Subsidiary is a
Subsidiary of an Obligor (other than the Parent Guarantor or the Borrower);
or
(m) more than 30 percent (40 percent, in the case of voting
securities held by a Plan) in voting power of the voting securities of the
Parent Guarantor shall be held (i) by any Person or (ii) by any two or more
Persons (other than parties to the Stockholders' Agreement) who "act as a
partnership, limited partnership, syndicate or other group for the purpose
of acquiring, holding, or disposing of securities" of the Parent Guarantor,
as the case may be, within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934;
then, and in every such event, the Administrative Agent shall (i) if
requested by the Required Lenders by notice to the Borrower terminate the
Commitments (if still in existence), and the Commitments shall thereupon
terminate, and (ii) if requested by the Required Lenders, by notice to the
Borrower declare the Notes (together with accrued interest thereon) and all
other amounts payable by the Borrower hereunder to be, and such Notes
(together with accrued interest thereon) and amounts shall thereupon
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower,
provided that in the case of any of the Events of Default specified in
paragraph (h) or (i) of this Section 6.01 with respect to the Parent
Guarantor or the Borrower, without any notice to any Obligor or any other
act by the Administrative Agent or any Lender, the Commitments shall
thereupon terminate and the Notes (together with accrued interest thereon)
and all other amounts payable by the Borrower hereunder shall become
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Obligors.
Section 6.02. Notice of Default. The Administrative Agent shall give
notice to the Parent Guarantor and the Borrower under Section 6.01(d)
promptly upon being requested to do so by any Lender and shall thereupon
notify all the Lenders thereof.
ARTICLE 7
The Administrative Agent
Section 7.01. Appointment and Authorization. Each Lender irrevocably
appoints and authorizes the Administrative Agent to take such action as
agent on such Lender's behalf and to exercise such powers under the
Financing Documents as are delegated to the Administrative Agent by the
terms thereof, together with all such powers as are reasonably incidental
thereto.
Section 7.02. Administrative Agent and Affiliates. JPMorgan Chase
Bank shall have the same rights and powers under this Agreement as any
other Lender and may exercise or refrain from exercising the same as though
it were not the Administrative Agent, and JPMorgan Chase Bank and its
affiliates may accept deposits from, lend money to, and generally engage in
any kind of business with the Parent Guarantor or any Subsidiary or
Affiliate of the Parent Guarantor as if it were not the Administrative
Agent.
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Section 7.03. Action by Administrative Agent. The obligations of the
Administrative Agent under the Financing Documents are only those expressly
set forth therein with respect to it. Without limiting the generality of
the foregoing, the Administrative Agent shall not be required to take any
action with respect to any Default, except as expressly provided in Article
6.
Section 7.04. Consultation With Experts. The Administrative Agent
may consult with legal counsel (who may be counsel for the Parent Guarantor
or a Borrower), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken
by it in good faith in accordance with the advice of such counsel,
accountants or experts.
Section 7.05. Liability of Administrative Agent. Neither the
Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for any action
taken or not taken by the Administrative Agent or affiliate or any such
director, officer, agent or employee in connection herewith (i) with the
consent or at the request of the Required Lenders or (ii) in the absence of
the gross negligence or willful misconduct of the Administrative Agent,
affiliate, director, officer, agent or employee. Neither the Administrative
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (i)
any statement, warranty or representation made in connection with any
Financing Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any Obligor under any
Financing Document; (iii) the satisfaction of any condition specified in
Article 3 except, in the case of the Administrative Agent, receipt of items
required to be delivered to the Administrative Agent; or (iv) the validity,
effectiveness or genuineness of any Financing Document or any other
instrument or writing furnished in connection therewith. The Administrative
Agent shall not incur any liability by acting in reliance upon any notice,
consent, certificate, statement, or other writing (which may be a bank
wire, telex, facsimile or similar writing) believed by it to be genuine or
to be signed by the proper party or parties.
Section 7.06. Indemnification. The Lenders shall, ratably in
accordance with their respective Credit Exposures, indemnify the
Administrative Agent (to the extent not reimbursed by any Obligor) against
any cost, expense (including counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result from the
Administrative Agent's gross negligence or willful misconduct) that the
Administrative Agent may suffer or incur in connection with the Financing
Documents or any action taken or omitted by the Administrative Agent
thereunder.
Section 7.07. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and any other Financing Document to which it is a party. Each
Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time,
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continue to make its own credit decisions in taking or not taking any
action under the Financing Documents.
Section 7.08. Agency Fees. The Borrower shall be obligated to pay
fees to the Administrative Agent in the amounts and on the dates agreed to
prior to the date hereof by the Borrower and the Administrative Agent.
Section 7.09. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving notice thereof to the Lenders and
the Obligors. Upon any such resignation, the Required Lenders shall have
the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders,
and shall have accepted such appointment, within 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of its appointment as Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties of
the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative
Agent.
ARTICLE 8
Changes In Circumstances Affecting Euro-dollar Loans
Section 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any
Euro-Dollar Loan:
(a) the Administrative Agent is advised by the Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to
the Reference Banks in the London Interbank market for such Interest
Period, or
(b) the Required Lenders advise the Administrative Agent that the
London Interbank Offered Rate as determined by the Administrative Agent
will not adequately and fairly reflect the cost to such Lenders of
maintaining or funding their respective Euro-Dollar Loans for such Interest
Period,
the Administrative Agent shall forthwith give notice thereof to the
Borrower (specifying in reasonable detail, in the case of an event referred
to in clause (b) above, the information relating thereto received by the
Administrative Agent from the Lenders) and the Lenders, whereupon until the
Administrative Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist (which it shall promptly do when it
determines that such circumstances have ceased to exist or, in the case of
clause
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(b) of this Section 8.01, when the Administrative Agent is so notified by
the Required Lenders, as specified above), the obligations of the Lenders
to make Euro-Dollar Loans, or to continue or convert outstanding Loans as
or into Euro-Dollar Loans shall be suspended, and each outstanding Euro-
Dollar Loan shall be converted into a Base Rate Loan on the last day of the
then current Interest Period applicable thereto.
Section 8.02. Illegality. If, on or after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Euro-Dollar Lending Office)
with any request or directive (whether or not having the force of law) of
any such authority, central bank or comparable agency shall make it
unlawful or impossible for any Lender (or its Euro-Dollar Lending Office)
to make, maintain or fund any of its Euro-Dollar Loans and such Lender
shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Borrower,
whereupon until such Lender notifies the Borrower and the Administrative
Agent that the circumstances giving rise to such suspension no longer
exist, the obligation of such Lender to make Euro-Dollar Loans, or to
convert outstanding Loans into Euro-Dollar Loans shall be suspended. Before
giving any notice to the Administrative Agent pursuant to this Section
8.02, such Lender shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice and will not,
in the judgment of such Lender, be otherwise disadvantageous to such
Lender. If such notice is given, each Euro-Dollar Loan of such Lender then
outstanding shall be converted to a Base Rate Loan either (a) on the last
day of the then current Interest Period applicable to such Euro-Dollar Loan
if such Lender may lawfully continue to maintain and fund such Loan to such
day or (b) immediately if such Lender shall determine that it may not
lawfully continue to maintain and fund such Loan to such day.
Section 8.03. Increased Cost. (a) If on or after the date hereof,
the adoption of any applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office)
with any request or directive (whether or not having the force of law) of
any such authority, central bank or comparable agency shall impose, modify
or deem applicable any reserve, special deposit, insurance assessment or
similar requirement (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but
excluding with respect to any Euro-Dollar Loan any such requirement with
respect to which such Lender is entitled to compensation during the
relevant Interest Period under Section 2.10) against assets of, deposits
with or for the account of, or credit extended by, any Lender (or its
Applicable Lending Office) or shall impose on any Lender (or its Applicable
Lending Office) or on the London interbank market any other condition
affecting its Loans, its Note or its obligation to make Loans; and the
result of any of the foregoing is to increase the cost to such Lender (or
its
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Applicable Lending Office) of making or maintaining any Euro-Dollar Loan, or to
reduce the amount of any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Lender to be material, then, within 15 days
after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to or for the account of such Lender such additional amount
or amounts as will compensate such Lender for such increased cost or reduction
with respect to its Euro-Dollar Loans.
(b) If any Lender shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy of
general applicability, or any change in any such law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive regarding capital adequacy of general
applicability (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender (or its Parent) as a consequence of
an undrawn Commitment hereunder to a level below that which such Lender (or its
Parent) could have achieved but for such adoption, change or compliance (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, within 15 days
after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender (or its Parent) for such reduction. The Borrower shall
not be obligated to compensate any Lender pursuant to this subsection (b) for
reduced return accruing prior to the date which is 30 days before such Lender
requests compensation; provided that if any law, rule or regulation, or
interpretation or administration thereof, or any request or directive giving
rise to reduced returns has retroactive effect, such Lender shall be entitled to
claim compensation hereunder for the period commencing on such date of
retroactive effect through the date of adoption or change or promulgation
thereof without regard to the foregoing limitation. If any Lender has demanded
compensation under this subsection (b), the Borrower shall have the right, with
the assistance of the Administrative Agent, to seek a mutually satisfactory
substitute bank or banks (which may be one or more of the Lenders) to purchase
the Note of such Lender.
(c) Each Lender will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
that will entitle such Lender to compensation pursuant to this Section 8.03 and
will designate a different Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate of any Lender claiming compensation under this Section 8.03 and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
Section 8.04. Taxes. (a) For the purposes of this Section 8.04, the
following terms have the following meanings:
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"Taxes" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings with respect to any payment by the Borrower
or the Parent Guarantor pursuant to this Agreement or under any Note, and all
liabilities with respect thereto, excluding (i) in the case of each Lender and
---------
the Administrative Agent, taxes imposed on its income, and franchise or similar
taxes imposed on it, by a jurisdiction under the laws of which such Lender or
the Administrative Agent (as the case may be) is organized or in which its
principal executive office is located or, in the case of each Lender, in which
its Applicable Lending Office is located and (ii) in the case of each Lender,
any United States withholding tax imposed on such payments, but only up to the
rate (if any) at which United States withholding tax would apply to such
payments to such Lender at the time such Lender first becomes a party to this
Agreement.
"Other Taxes" means any present or future stamp or documentary taxes and
any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note.
(b) Any and all payments by the Borrower or the Parent Guarantor to or for
the account of any Lender or the Administrative Agent hereunder or under any
Note shall be made without deduction for any Taxes or Other Taxes; provided
--------
that, if the Borrower or the Parent Guarantor shall be required by law to deduct
any Taxes or Other Taxes from any such payments, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) such Lender
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 Borrower
or the Parent Guarantor shall make such deductions, (iii) the Borrower or the
Parent Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower or the Parent Guarantor shall furnish to the Administrative Agent, at
its address referred to in Section 11.01, the original or a certified copy of a
receipt evidencing payment thereof.
(c) The Parent Guarantor agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be paid within 15 days after such Lender or the
Administrative Agent (as the case may be) makes demand therefor.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Parent
Guarantor (but only so long as such Lender remains lawfully able to do so),
shall provide the Parent Guarantor and the Administrative Agent with Internal
Revenue Service form W-8BEN or W-8ECI, as appropriate, or any
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successor form prescribed by the Internal Revenue Service, or certifying that
the income receivable pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States.
(e) For any period with respect to which a Lender has failed to provide
the Parent Guarantor or the Administrative Agent with the appropriate form
pursuant to Section 8.04(d) (unless such failure is due to a change in treaty,
law or regulation occurring subsequent to the date on which such form originally
was required to be provided), such Lender shall not be entitled to
indemnification under Section 8.04 (b) or (c) with respect to Taxes imposed by
the United States; provided that if a Lender, which is otherwise exempt from or
--------
subject to a reduced rate of withholding tax becomes subject to Taxes because of
its failure to deliver a form required hereunder, the Borrower and the Parent
Guarantor shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(f) If the Borrower or the Parent Guarantor is required to pay additional
amounts to or for the account of any Lender pursuant to this Section, then such
Lender will change the jurisdiction of its Applicable Lending Office if, in the
judgment of such Lender, such change (i) will eliminate or reduce any such
additional payment which may thereafter accrue and (ii) is not otherwise
disadvantageous to such Lender.
Section 8.05. Base Rate Loans Substituted for Affected Loans. If (i) the
obligation of any Lender to make Euro-Dollar Loans has been suspended pursuant
to Section 8.02 or (ii) any Lender has demanded compensation under Section
8.03(a) with respect to its Euro-Dollar Loans and the Borrower shall by at least
five Euro-Dollar Business Days' prior notice to such Lender through the
Administrative Agent have elected that the provisions of this Section shall
apply to such Lender, then, unless and until such Lender notifies the Borrower
that the circumstances giving rise to such suspension or demand for compensation
no longer apply all Loans which would otherwise be made by such Lender as (or
continued as or converted into) Euro-Dollar Loans, as the case may be, shall
instead be Base Rate Loans on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Lenders. If
such Lender notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other Banks.
ARTICLE 9
Guarantee
Section 9.01. The Guarantee. The Parent Guarantor hereby unconditionally
and irrevocably guarantees to the Lenders, and to each of them, the due and
punctual payment of all present and future indebtedness evidenced by or arising
out of this Agreement and the Notes, including, but not limited to, the due and
punctual payment of principal of and interest on the Notes and the due and
punctual payment of all other sums now or hereafter owed by the Borrower under
this Agreement and the Notes as and when the same shall
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become due and payable, whether at maturity, by declaration or otherwise,
according to the terms hereof and thereof. In case of failure by the Borrower
punctually to pay the indebtedness guaranteed hereby, the Parent Guarantor
hereby unconditionally agrees to cause such payment to be made punctually as and
when the same shall become due and payable, whether at maturity or by
declaration or otherwise, and as if such payment were made by the Borrower.
Section 9.02. Guarantee Unconditional. The obligations of the Parent
Guarantor under this Article 9 shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged or
otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of any other Obligor under any Financing Document by
operation of law or otherwise;
(b) any modification or amendment of or supplement to any Financing
Document;
(c) any modification, amendment, waiver, release, non-perfection or
invalidity of any direct or indirect security, or of any guarantee or other
liability of any third party, for any obligation of any other Obligor under any
Financing Document;
(d) any change in the corporate existence, structure or ownership of any
other Obligor, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting any other Obligor or its assets or any resulting release or
discharge of any obligation of any other Obligor contained in any Financing
Document;
(e) the existence of any claim, set-off or other rights which the Parent
Guarantor may have at any time against any other Obligor, the Administrative
Agent, any Lender or any other Person, whether or not arising in connection with
any Financing Document, provided that nothing herein shall prevent the assertion
of any such claim by separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against any other
Obligor for any reason of any Financing Document, or any provision of applicable
law or regulation purporting to prohibit the payment by any other Obligor of the
principal of or interest on any Note or any other amount payable by it under any
Financing Document; or
(g) any other act or omission to act or delay of any kind by any other
Obligor, the Administrative Agent, any Lender or any other Person or any other
circumstance whatsoever that might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of or defense to the obligations of
the Parent Guarantor under this Article 9.
Section 9.03. Discharge Only Upon Payment In Full; Reinstatement In
Certain Circumstances. The Parent Guarantor's obligations under this Article 9
shall remain in
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full force and effect until the Commitments are terminated and the principal of
and interest on the Notes and all other amounts payable by the Borrower under
this Agreement shall have been paid in full. If at any time any payment of the
principal of or interest on any Note or any other amount payable by the Borrower
under this Agreement is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of the Borrower or any Subsidiary
Guarantor or otherwise, the Parent Guarantor's obligations under this Article 9
with respect to such payment shall be reinstated at such time as though such
payment had become due but had not been made at such time.
Section 9.04. Waiver. The Parent Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by any Person
against any other Obligor or any other Person.
Section 9.05. Subrogation and Contribution. The Parent Guarantor
irrevocably waives any and all rights to which it may be entitled, by operation
of law or otherwise, upon making any payment hereunder (i) to be subrogated to
the rights of the payee against the Borrower with respect to such payment or
otherwise to be reimbursed, indemnified or exonerated by the Borrower in respect
thereof or (ii) to receive any payment, in the nature of contribution or for any
other reason, from any other Obligor with respect to such payment.
Section 9.06. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower under this Agreement or the Notes
is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all
such amounts otherwise subject to acceleration under the terms of this Agreement
shall nonetheless be payable by the Parent Guarantor hereunder forthwith on
demand by the Administrative Agent made at the request of the Required Lenders.
ARTICLE 10
Judicial Proceedings
Section 10.01. Consent To Jurisdiction. Each Obligor hereby irrevocably
submits to the non-exclusive jurisdiction of the United States District Court
for the Southern District of New York and of any New York State court sitting in
the City of New York over any suit, action or proceeding arising out of or
relating to any Financing Document. To the fullest extent it may effectively do
so under applicable law, each Obligor irrevocably waives and agrees not to
assert, by way of motion, as a defense or otherwise, any claim that it is not
subject to the jurisdiction of any such court, any objection that it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
Section 10.02. Enforcement of Judgments. Each Obligor agrees, to the
fullest extent it may effectively do so under applicable law, that a judgment in
any suit, action or
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<PAGE>
proceeding of the nature referred to in Section 10.01 brought in any such court
shall be conclusive and binding upon such Obligor and may be enforced in the
courts of the United States of America or the State of New York (or any other
courts to the jurisdiction of which such Obligor is or may be subject) by a suit
upon such judgment.
Section 10.03. Service of Process. Each Obligor consents to process being
served in any suit, action or proceeding of the nature referred to in Section
10.01 by mailing a copy thereof by registered or certified air mail, postage
prepaid, return receipt requested, to the address of such Obligor specified in
or designated pursuant to Section 11.01. Each Obligor agrees that such service
(i) shall be deemed in every respect effective service of process upon such
Obligor in any such suit, action or proceeding and (ii) shall, to the fullest
extent permitted by law, be taken and held to be valid personal service upon and
personal delivery to such Obligor.
Section 10.04. No Limitation on Service or Suit. Nothing in this Article
10 shall affect the right of the Administrative Agent or any Lender to serve
process in any manner permitted by law, or limit any right that the
Administrative Agent or any Lender may have to bring proceedings against any
Obligor in the courts of any jurisdiction or to enforce in any lawful manner a
judgment obtained in one jurisdiction in any other jurisdiction..
ARTICLE 11
Miscellaneous
Section 11.01. Notices. Unless otherwise specified herein, all notices,
requests and other communications to any party hereunder shall be in writing
(including bank wire, telex, facsimile transmission or similar writing) and
shall be given to such party (x) in the case of the Parent Guarantor, the
Borrower or the Administrative Agent, at its address or telex or facsimile
number set forth on the signature pages hereof, (y) in the case of any Lender,
at its address or telex or facsimile number set forth in its Administrative
Questionnaire, or (z) in the case of any party hereto, at such other address or
telex or facsimile number as such party may hereafter specify for the purpose by
notice to the Administrative Agent and the Parent Guarantor. Each such notice,
request or other communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in this Section 11.01
and the appropriate answerback is received, (ii) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (iii) if given by mail, five days after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iv) if given by any other means, when delivered at
the address specified in this Section 11.01, provided that notices to the
Administrative Agent under Article 2 or 8 shall not be effective until received.
Section 11.02. No Waiver. No failure or delay by the Administrative Agent
or any Lender in exercising any right, power or privilege under any Financing
Document shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
43
<PAGE>
The rights and remedies provided in the Financing Documents shall be cumulative
and not exclusive of any rights or remedies provided by law..
Section 11.03. Expenses; Indemnification for Litigation. (a) The Borrower
shall be obligated to pay (i) all out-of-pocket expenses of the Administrative
Agent, including fees and disbursements of the law firm acting as special
counsel for the Lenders and the Administrative Agent and such local counsel as
may be retained by the Administrative Agent on behalf of the Lenders and the
Administrative Agent, in connection with the preparation and administration of
the Financing Documents, any waiver or amendment of any provision thereof, or
any Default or alleged Default hereunder, and (ii) if any Event of Default
occurs, all out-of-pocket expenses incurred by the Administrative Agent or any
Lender, including fees and disbursements of counsel, in connection with such
Event of Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Parent Guarantor and the Borrower shall be jointly and severally
obligated to indemnify each Lender and hold each Lender harmless from and
against any and all liabilities, losses, damages, costs and expenses of any kind
(including, without limitation, the reasonable fees and disbursements of counsel
for any Lender in connection with any investigative, administrative or judicial
proceeding, whether or not such Lender shall be designated a party thereto)
which may be incurred by any Lender (or by the Administrative Agent in
connection with its actions as Administrative Agent hereunder), relating to or
arising out of the Financing Documents or any actual or proposed use of the
proceeds of the Loans hereunder, provided that no Lender shall have the right to
be indemnified hereunder for its own gross negligence or willful misconduct as
determined by a court of competent jurisdiction.
Section 11.04. Amendments and Waivers. Any provision of this Agreement or
the Notes may be amended or waived if, and only if, such amendment or waiver is
in writing and is signed by the Parent Guarantor, the Borrower and the Required
Lenders (and, if the rights or duties of the Administrative Agent are affected
thereby, by the Administrative Agent), provided that no such amendment or waiver
shall, unless signed by all the Lenders, (i) increase or decrease the amount of
any Commitment (except for a ratable decrease in the Commitments of all Lenders)
or subject any Lender to any additional obligation, (ii) reduce the principal of
or rate of interest on any Loan or any fees payable hereunder, (iii) postpone
the date fixed for any payment of principal of or interest on any Loan pursuant
to Section 2.03(a) or 2.05, (iv) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Notes, or the number of Lenders,
which shall be required for the Lenders or any of them to take any action under
this Section 11.04 or any other provision of this Agreement or any other
Financing Document or (v) postpone the date fixed for termination of the
Commitments..
In the event that (i) a Lender shall have granted a participation pursuant
to Section 11.07(d); (ii) by virtue of the participation arrangement, such
Lender is required to obtain the consent of its Participant to a proposed
amendment to this Agreement or its Note; (iii) such Participant's consent is not
forthcoming; (iv) such Lender and the other Lenders are otherwise prepared to
agree to such proposed amendment; and (v) such Lender shall have
44
<PAGE>
so certified to the Administrative Agent, then, in order to effect and in
conjunction with such amendment, the Borrower may terminate the Commitment of
such Lender (if still in existence) or, on a date otherwise permitted hereunder,
prepay the outstanding Loans of such Lender in their entirety, provided that the
Borrower shall have procured a substitute Lender (which may be such Lender)
contemporaneously to assume the Credit Exposure of such Lender and to fund, for
the balance of the respective Interest Periods applicable thereto, the Loans
prepaid pursuant to this paragraph.
Section 11.05. Sharing of Set-offs. Each Lender agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest due with
respect to its Loans which is greater than the proportion received by any other
Lender in respect of the aggregate amount of principal and interest due with
respect to the Loans of such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the Loans
of the other Lenders, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Loans of the Lenders shall be shared by the Lenders pro rata. The Borrower and
the Parent Guarantor agree, to the fullest extent they may effectively do so
under applicable law, that any holder of a participation in a Note, whether or
not acquired pursuant to the foregoing arrangements, may exercise rights of set-
off or counterclaim and other rights with respect to such participation as fully
as if such holder of a participation were a direct creditor of the Borrower or
the Parent Guarantor, as the case may be, in the amount of such participation.
Section 11.06. New York Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of New York.
Section 11.07. Successors and Assigns. (a) All of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither the Parent
Guarantor nor the Borrower may assign or transfer any of its rights or
obligations under this Agreement without the consent of all Lenders.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment or the Loans at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender's Credit Exposure or in the case of an assignment to a Lender
or an affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Credit Exposure subject to each such assignment shall
not be less than $5,000,000, unless each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower
otherwise consent (each such consent not to be unreasonably withheld or
delayed), (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Credit Exposure assigned, and (iii) the
parties to each assignment shall execute and deliver to the Administrative Agent
an agreement, substantially in the form of Exhibit G hereto (an "Assignment and
Assumption Agreement"), together with a processing and recordation
45
<PAGE>
fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire. Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date specified in
each Assignment and Assumption Agreement, the Eligible Assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption Agreement, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption Agreement, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption Agreement covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 8.03, 8.04 and
9.03). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at one of its offices in the State of Delaware
or New York a copy of each Assignment and Assumption Agreement delivered to it
and a register for the recordation of the names and addresses of the Lenders and
the Commitments of, or the principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Parent Guarantor, the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Parent Guarantor, the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Any Lender may, upon notice to, but without requirement of consent of,
the Borrower and the Administrative Agent, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment or the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Parent Guarantor, the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in clause (i), (ii) or (iii) of Section 11.04 that affects such
Participant. Subject to paragraph (e) of this Section, the Borrower agrees that
each
46
<PAGE>
Participant shall be entitled to the benefits of Sections 2.08 and 2.10 and
Article 8 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.04 as though it were a Lender, provided such Participant agrees to be
subject to Section 9.04 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 8.03 or 8.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant organized under the laws of a jurisdiction
outside the United States shall not be entitled to the benefits of Section 8.04
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 8.04(d) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
Section 11.08. Collateral. Each Lender (the "Representing Lender")
represents to the Administrative Agent and each other Lender that the
Representing Lender in good faith is not relying upon any Margin Stock as
collateral in the extension or maintenance of the credit provided for in the
Financing Documents.
Section 11.09. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, and all of
which taken together shall constitute a single agreement, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when the Administrative Agent shall have
received, from each party listed on the signature page hereof, either a
counterpart hereof signed by such party or facsimile or other written
confirmation satisfactory to the Administrative Agent confirming that such party
has signed a counterpart hereof.
Section 11.10. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE
FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
47
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first above
written.
ARAMARK SERVICES, INC.
By:___________________________
Name:
Title:
ARAMARK Tower
1101 Market Street
Philadelphia, Pennsylvania 19107
Facsimile number: (215) 238-3284
(215) 238-3282
ARAMARK CORPORATION
By:___________________________
Name:
Title:
ARAMARK Tower
1101 Market Street
Philadelphia, Pennsylvania 19107
Facsimile number: (215) 238-3284
(215) 238-3282
JPMORGAN CHASE BANK,
as Administrative Agent
By:___________________________
Name:
Title:
270 Park Avenue
New York, NY 10017
Telex: 129100
Facsimile: (212) 270-7138
48
<PAGE>
Participants
------------
JPMORGAN CHASE BANK
By:___________________________
Name:
Title:
CITIBANK, N.A.
By:___________________________
Name:
Title:
WACHOVIA BANK, N.A.
By:___________________________
Name:
Title:
BANK ONE, N.A. (MAIN OFFICE
CHICAGO)
By:___________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK
BRANCH
By:___________________________
Name:
Title:
49
<PAGE>
FLEET NATIONAL BANK
By:___________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:___________________________
Name:
Title:
50
<PAGE>
COMMITMENT SCHEDULE
LENDER COMMITMENT
Administrative Agent
JPMorgan Chase Bank $240,000,000
Lenders
Citibank, N.A. $120,000,000
Wachovia Bank, N.A. $120,000,000
Bank One, N.A. (Main Office Chicago) $ 30,000,000
Credit Lyonnais New York Branch $ 30,000,000
Fleet National Bank $ 30,000,000
PNC Bank, National Association $ 30,000,000
Total: $600,000,000
<PAGE>
PRICING SCHEDULE
"Euro-Dollar Margin" means, for any day, the sum of (i) rate per annum set
forth below in the column corresponding to the Pricing Level that applies on
such day plus (ii) on any date six months or more after the Borrowing Date,
0.25% plus (iii) on any date nine months or more after the Borrowing Date, an
additional 0.25%:
Level I Level II Level III Level IV
------- -------- --------- --------
1.125% 1.375% 1.625% 1.875%
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Pricing" applies on any day on which the Parent Guarantor's long-
term debt is rated BBB or higher by S&P and Baa2 or higher by Moody's.
"Level II Pricing" applies on any day on which (i) the Parent Guarantor's
long-term debt is rated BBB- or higher by S&P and Baa3 or higher by Moody's and
(ii) no better Pricing Level applies.
"Level III Pricing" applies on any day on which (i) the Parent Guarantor's
long-term debt is rated BB+ or higher by S&P and Ba1 or higher by Moody's and
(ii) no better Pricing Level applies.
"Level IV Pricing" applies on any day if no other Pricing Level applies on
such day.
"Pricing Level" refers to the determination of which of Level I, Level II,
Level III or Level IV Pricing applies on any day. A "better" Pricing Level is
one with a lower roman numeral.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Parent
Guarantor without third-party credit enhancement, and any rating assigned to any
other debt security of the Parent Guarantor shall be disregarded. The ratings in
effect for any day are those in effect at the close of business on such day.
<PAGE>
EXHIBIT A
NOTE
New York, New York
November 30, 2001
For value received, ARAMARK Services, Inc., a Delaware corporation (the
"Borrower"), promises to pay to the order of __________________________ (the
"Lender"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan provided by the Lender to the Borrower pursuant to
the Loan Agreement referred to below on November 29, 2002. The Borrower
promises to pay interest on the unpaid principal amount of each such Loan on the
dates and at the rate or rates provided for in the Loan Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of JPMorgan
Chase Bank, 52 Broadway, New York, New York.
All Loans provided by the Lender, the respective types thereof and all
repayments of the principal thereof shall be recorded by the Lender and, if the
Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Loan Agreement.
<PAGE>
This note is one of the Notes referred to in the Bridge Loan Agreement
dated as of November 30, 2001 among the Borrower, ARAMARK Corporation, as the
Parent Guarantor, the Lenders party thereto and JPMorgan Chase Bank, as
Administrative Agent (as the same may be amended from time to time, the "Loan
Agreement"). Terms defined in the Loan Agreement are used herein with the same
meanings. Reference is made to the Loan Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
ARAMARK SERVICES, INC.
By: ________________________
Name:
Title:
54
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
AMOUNT TYPE AMOUNT OF NOTATION
OF OF PRINCIPAL MADE BY
DATE LOAN LOAN REPAID
------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
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------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
</TABLE>
55
<PAGE>
EXHIBIT B
OPINION OF
GENERAL COUNSEL OR ASSOCIATE GENERAL COUNSEL
OF THE BORROWER AND THE PARENT GUARANTOR
November 30, 2001
To the Lenders and the Administrative Agent
c/o JPMorgan Chase Bank, as
Administrative Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
I am General Counsel of ARAMARK Services, Inc. ( "ARAMARK Services" or the
"Borrower"), and of ARAMARK Corporation (the "Parent Guarantor") and am familiar
with (i) the Bridge Loan Agreement (the "Loan Agreement") dated as of November
30, 2001 among the Borrower, the Parent Guarantor, the Lenders party thereto and
JPMorgan Chase Bank, as Administrative Agent, and (ii) the Subsidiary Guaranty
Agreement. Terms defined in the Loan Agreement and not otherwise defined herein
are used herein as therein defined.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion. I have assumed, for purposes of this opinion, that the Lenders and the
Administrative Agent have all requisite power and authority and have taken all
necessary corporate action to enter into the Loan Agreement and to effect any
transaction contemplated thereby. This opinion is limited to the federal laws
of the United States, the laws of the States of Pennsylvania and New York and
the corporation law of the State of Delaware. As to matters pertaining to the
laws of any other State, I do not purport to practice law therein or be an
expert on the laws thereof and have relied on my general familiarity and
experience with pertinent opinions in similar transactions and relevant statutes
and case law. As to the due incorporation and good standing of the Subsidiaries
of the Parent Guarantor under the laws of any State, I have relied on
certificates of public officials of such State and have no reason to believe
that any such Subsidiary is not duly incorporated or in good standing in such
State. For purposes of this opinion, "Material Debt" means all Debt of the
Parent Guarantor, the Borrower or any of their respective Subsidiaries, other
than any such Debt having an outstanding principal amount of $1,000,000 or less
and aggregating, together with all other such Debt, not more than $10,000,000 in
outstanding principal amount.
1
<PAGE>
Upon the basis of the foregoing, I am of the opinion that:
1. Each of the Borrower and the Parent Guarantor is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, and has all corporate powers required to carry on its business as
now conducted.
2. The execution, delivery and performance (a) of the Loan Agreement by
the Borrower and the Parent Guarantor, (b) of the Notes by the Borrower and (c)
of the Subsidiary Guaranty Agreement by the Parent Guarantor, the Borrower and
each of the Subsidiaries of the Parent Guarantor listed on the signature pages
of the Subsidiary Guaranty Agreement (the "Subsidiary Guarantors" and with the
Borrower and the Parent Guarantor, collectively, the "Obligors") are within the
respective corporate powers of the Obligors, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the charter or by-laws of any Obligor or of any agreement or instrument relating
to Material Debt or any other agreement, judgment, injunction, order, decree or
other instrument binding upon any Obligor material to the business of the Parent
Guarantor and its Subsidiaries, considered as a whole, or result in the creation
or imposition of any Lien on any asset of any Obligor or any of their respective
Subsidiaries.
3. The Loan Agreement constitutes a valid and binding agreement of the
Borrower and the Parent Guarantor, and the Notes constitute valid and binding
obligations of the Borrower, in each case enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
4. The Subsidiary Guaranty Agreement constitutes a valid and binding
agreement of the Borrower, the Parent Guarantor and each Subsidiary of the
Parent Guarantor listed on the signature pages thereof, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. I
have assumed for purposes of the foregoing opinion that, in light of the
limitations set forth in Section 2.03 of the Subsidiary Guaranty Agreement and
other relevant considerations, a court would conclude that a fraudulent
conveyance has not occurred.
5. To the best of my knowledge after due inquiry, there is no action,
suit or proceeding pending or threatened against the Parent Guarantor, the
Borrower or any of their respective Subsidiaries before any court or arbitrator
or any governmental body, agency or official in which there is a reasonable
likelihood of an adverse decision which would affect the business, financial
position or results of operations of the Parent
<PAGE>
Guarantor and its Subsidiaries, considered as a whole, in a manner material and
adverse to the creditworthiness of the Obligors, considered as a whole, or which
in any manner questions the validity or enforceability of any Financing
Document.
6. Each Obligor (other than the Parent Guarantor and the Borrower) is a
corporation validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
7. None of the Obligors is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
In giving the foregoing opinion, I express no opinion as to the effect (if
any) of any law of any jurisdiction in which any Lender is located which limits
the rate of interest that such Lender may charge or collect.
Very truly yours,
<PAGE>
EXHIBIT C
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
[Effective Date]
To the Lenders and the Administrative Agent
c/o JPMorgan Chase Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
We have participated in the preparation of the Bridge Loan Agreement (the
"Loan Agreement") dated as of November 30, 2001 among ARAMARK Services Inc., a
Delaware corporation ("ARAMARK Services"or the "Borrower"), ARAMARK Corporation,
a Delaware corporation (the "Parent Guarantor"), the Lenders party thereto (the
"Lenders") and JPMorgan Chase Bank, as Administrative Agent (the "Administrative
Agent"), and have acted as special counsel for the Administrative Agent for the
purpose of rendering this opinion pursuant to Section 3.01(k) of the Loan
Agreement. Terms defined in the Loan Agreement are used herein as therein
defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion. In addition, in connection with certain questions of fact, we have
relied upon representations and certificates of officers of the Company.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Borrower and the Parent
Guarantor of the Loan Agreement and by the Borrower of the Notes are within the
respective corporate powers of the Parent Guarantor and the Borrower and have
been duly authorized by all necessary corporate action.
2. The Loan Agreement constitutes a valid and binding agreement of the
Borrower and the Parent Guarantor, and each Note constitutes a valid and binding
obligation of the Borrower, in each case enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of equity.
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We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction (except the State of New York) in
which any Lender is located which limits the rate of interest that such Lender
may charge or collect.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by any other person without our prior written consent.
Very truly yours,
<PAGE>
EXHIBIT D
SUBSIDIARY GUARANTY AGREEMENT
dated as of
November 30, 2001
among
ARAMARK SERVICES, INC.,
ARAMARK CORPORATION
and
THE SUBSIDIARY GUARANTORS REFERRED TO HEREIN
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SUBSIDIARY GUARANTY AGREEMENT
AGREEMENT dated as of November 30, 2001 among ARAMARK Services, Inc., a
Delaware corporation ("ARAMARK Services" or the "Borrower"), ARAMARK
Corporation, a Delaware corporation (the "Parent Guarantor"), and each of the
Subsidiary Guarantors listed on the signature pages hereof under the caption
"Subsidiary Guarantors" and each Person that shall, at any time after the date
hereof, become an additional "Subsidiary Guarantor" pursuant to Section 3.01
hereof (collectively, the "Subsidiary Guarantors").
WHEREAS, the Borrower and the Parent Guarantor have entered into a Bridge
Loan Agreement (as the same may be amended from time to time, the "Loan
Agreement") dated as of November 30, 2001 among the Borrower, the Parent
Guarantor, the Lenders party thereto and JPMorgan Chase Bank, as Administrative
Agent, pursuant to which the Borrower is entitled, subject to certain
conditions, to borrow up to $600,000,000 and pursuant to which the payment when
due of all principal, interest and other amounts thereunder is guaranteed by the
Parent Guarantor;
WHEREAS, as a condition to the effectiveness of the Loan Agreement, each of
the entities listed on Schedule I hereto and each Wholly Owned Domestic Material
Subsidiary of the Parent Guarantor is required to execute and deliver to the
Administrative Agent, on behalf of the Lenders, a Subsidiary Guaranty Agreement
whereby such entity or Wholly Owned Domestic Material Subsidiary shall guarantee
the payment when due of all principal, interest, and other amounts that shall be
at any time payable by the Borrower under the Loan Agreement; and
WHEREAS, in conjunction with the transactions contemplated by the Loan
Agreement and in consideration of the financial and other support that the
Borrower and the Parent Guarantor have provided, and such financial and other
support as the Borrower and the Parent Guarantor may in the future provide, to
the Subsidiary Guarantors, and in order to induce the Lenders to enter into the
Loan Agreement, the Subsidiary Guarantors are willing to guarantee the
obligations of the Borrower thereunder;
NOW, THEREFORE, the parties hereto agree as follows:
Article 1
Definitions
Section 1.01. Definitions. Terms defined in the Loan Agreement and not
otherwise defined herein are used herein as therein defined.
Article 2
Guarantees
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Section 2.01. Guarantees. Subject to Section 2.03, the Subsidiary
Guarantors hereby jointly, severally, unconditionally and irrevocably guarantee
to the Lenders, and to each of them, the due and punctual payment of all present
and future indebtedness of the Borrower evidenced by or arising out of the
Financing Documents, including, but not limited to, the due and punctual payment
of principal of and interest on the Notes, the due and punctual payment of all
other sums now or hereafter owed by the Borrower under any Financing Document as
and when the same shall become due and payable, whether at maturity, by
declaration or otherwise, according to the terms thereof. In case of failure by
the Borrower punctually to pay the indebtedness guaranteed hereby, the
Subsidiary Guarantors, subject to Section 2.03, hereby jointly, severally and
unconditionally agree to cause such payment to be made punctually as and when
the same shall become due and payable, whether at maturity or by declaration or
otherwise, and as if such payment were made by the Borrower.
Section 2.02. Guarantees Unconditional. The obligations of each
Subsidiary Guarantor under this Article 2 shall be unconditional and absolute
and, without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of any other Obligor under any Financing
Document, by operation of law or otherwise;
(b) any modification or amendment of or supplement to any Financing
Document;
(c) any modification, amendment, waiver, release, non-perfection or
invalidity of any direct or indirect security, or of any guarantee or other
liability of any third party, for any obligation of any other Obligor under
any Financing Document;
(d) any change in the corporate existence, structure or ownership of
any other Obligor, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any other Obligor or its assets or any
resulting release or discharge of any obligation of any other Obligor
contained in any Financing Document;
(e) the existence of any claim, set-off or other rights which any
Subsidiary Guarantor may have at any time against any other Obligor, the
Administrative Agent, any Lender or any other Person, whether or not
arising in connection with the Financing Documents, provided that nothing
herein shall prevent the assertion of any such claim by separate suit or
compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against any
other Obligor for any reason of any Financing Document, or any provision of
applicable law or regulation purporting to prohibit the payment by any
other
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Obligor of the principal of or interest on any Note or any other amount
payable by any other Obligor under the Financing Documents; or
(g) any other act or omission to act or delay of any kind by any other
Obligor, the Administrative Agent, any Lender or any other Person or any
other circumstance whatsoever that might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to the
obligations of any Subsidiary Guarantor under this Article 2.
Section 2.03. Limit of Liability. Each Subsidiary Guarantor shall be
liable under this Agreement only for amounts aggregating up to the largest
amount that would not render its obligations hereunder subject to avoidance
under Section 548 of the United States Bankruptcy Code or any comparable
provisions of any applicable state law.
Section 2.04. Discharge; Reinstatement in Certain Circumstances. (a)
Subject to Section 2.03 and paragraph (b) of this Section 2.04, each Subsidiary
Guarantor's obligations under this Article 2 shall remain in full force and
effect, except as otherwise agreed with the consent of the Required Lenders,
until the Commitments are terminated and the principal of and interest on the
Notes and all other amounts payable by the Borrower under the Financing
Documents shall have been paid in full. If at any time any payment of the
principal of or interest on any Note or any other amount payable by the Borrower
under any Financing Document is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of any other Obligor
or otherwise, each Subsidiary Guarantor's obligations under this Article 2 with
respect to such payment shall be reinstated at such time as though such payment
had become due but had not been made at such time.
(b) In the event that any capital stock of any Subsidiary Guarantor shall
be disposed of with the effect that such Subsidiary Guarantor shall cease to be
a Subsidiary of the Parent Guarantor, such Subsidiary Guarantor shall be
released and discharged from any obligation under this Agreement; provided that
no such disposition shall be made unless, immediately after such disposition,
and giving effect thereto, no Event of Default shall have occurred and be
continuing; and provided further that such Subsidiary Guarantor's obligations
under this Agreement shall be immediately reinstated if at any time after such
disposition it becomes a Subsidiary of the Parent Guarantor. The obligations
hereunder of any Subsidiary Guarantor the capital stock of which has been so
disposed of shall be unenforceable for so long as it shall be released and
discharged of its obligations pursuant to this Section 2.04(b).
Section 2.05. Waiver. Each Subsidiary Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against any other Obligor or any other Person.
Section 2.06. Subrogation and Contribution. Each Subsidiary Guarantor
irrevocably waives, until such time as all amounts under the Financing Documents
have
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been indefeasibly paid in full, any and all rights to which it may be entitled,
by operation of law or otherwise, upon making any payment hereunder (i) to be
subrogated to the rights of the payee against the Borrower with respect to such
payment or otherwise to be reimbursed, indemnified or exonerated by the Borrower
in respect thereof or (ii) to receive any payment, in the nature of contribution
or for any other reason, from any other Obligor with respect to such payment.
Section 2.07. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower under the Financing Documents is
stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all
such amounts otherwise subject to acceleration under the terms of the Financing
Documents shall nonetheless be payable by each Subsidiary Guarantor hereunder
forthwith on demand by the Administrative Agent made at the request of the
requisite number of Lenders.
Article 3
Covenant of the Company and the Parent Guarantor
Section 3.01. Additional Subsidiary Guarantors. The Parent Guarantor and
the Borrower jointly and severally agree to cause each Person that shall, at any
time after the date hereof, become a Wholly Owned Domestic Material Subsidiary
of the Parent Guarantor to enter into this Agreement not later than 30 days
after the date on which such Person shall have become a Wholly Owned Domestic
Material Subsidiary.
Article 4
Miscellaneous
Section 4.01. Additional Subsidiary Guarantors. Unless otherwise specified
herein, all notices, requests and other communications to any party hereunder
shall be in writing (including bank wire, telex, facsimile transmission or
similar writing) and shall be given to such party at its address or telex or
facsimile number set forth on the signature pages hereof (or, in the case of any
Subsidiary Guarantor as to which no such address or telex or facsimile number is
so set forth, to it at the address or telex or facsimile number of the Parent
Guarantor set forth on the signature pages hereof) or such other address or
telex or facsimile number as such party may hereafter specify for the purpose by
notice to the Administrative Agent. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the appropriate answerback is received, (ii) if given by mail,
five days after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section 4.01.
Section 4.02. No Waiver. No failure or delay by the Administrative Agent
or any Lender in exercising any right, power or privilege under this Agreement
or any other Financing Document shall operate as a waiver thereof nor shall any
single or partial
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exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein and
therein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 4.03. Amendments and Waivers. Any provision of this Agreement may
be amended or waived if, and only if, such amendment or waiver is in writing and
is signed by the Parent Guarantor, the Borrower, each Subsidiary Guarantor and
the Administrative Agent with the prior written consent of the Required Lenders.
Section 4.04. New York Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York. Each of the
Subsidiary Guarantors hereby agrees to be bound by each of Article 10 and
Section 11.10 of the Loan Agreement to the same extent as if it were a party
thereto.
Section 4.02. Successors and Assigns. All the provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that no Subsidiary Guarantor may
assign or transfer any of its rights or obligations under this Agreement.
Section 4.02. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, and all of which
taken together shall constitute a single instrument, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when the Administrative Agent shall have received a
counterpart hereof signed by the Borrower, the Parent Guarantor and one or more
of the Subsidiary Guarantors. Thereafter, upon execution and delivery of this
Agreement on behalf of any other Subsidiary Guarantor, this Agreement shall
become effective with respect to such Subsidiary Guarantor as of the date of
such delivery.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first above
written.
ARAMARK SERVICES, INC.
By: __________________________
Title:
ARAMARK Tower
1101 Market Street
Philadelphia, Pennsylvania 19107
Facsimile number: (215) 238-3284
(215) 238-3282
ARAMARK CORPORATION
By: __________________________
Title:
ARAMARK Tower
1101 Market Street
Philadelphia, Pennsylvania 19107
Facsimile number: (215) 238-3284
(215) 238-3282
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SUBSIDIARY GUARANTORS
ARAMARK EDUCATIONAL GROUP, INC.
By: ________________________
Title:
ARAMARK ORGANIZATIONAL SERVICES, INC.
By: ________________________
Title:
ARAMARK HEALTHCARE SUPPORT SERVICES, INC.
By: ________________________
Title:
ARAMARK SPORTS AND ENTERTAINMENT GROUP, INC.
By: ________________________
Title:
ARAMARK REFRESHMENT SERVICES, INC.
By: ________________________
Title:
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ARAMARK SENIOR NOTES COMPANY
By: ________________________
Title:
ARAMARK UNIFORM & CAREER APPAREL, INC.
By: ________________________
Title:
ARAMARK UNIFORM & CAREER APPAREL GROUP, INC.
By: ________________________
Title:
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Schedule I
SUBSIDIARY GUARANTORS
ARAMARK EDUCATIONAL GROUP, INC.
ARAMARK ORGANIZATIONAL SERVICES, INC.
ARAMARK HEALTHCARE SUPPORT SERVICES, INC.
ARAMARK SPORTS AND ENTERTAINMENT GROUP, INC.
ARAMARK REFRESHMENT SERVICES, INC.
ARAMARK SENIOR NOTES COMPANY
ARAMARK UNIFORM & CAREER APPAREL, INC.
ARAMARK UNIFORM & CAREER APPAREL GROUP, INC.
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EXHIBIT E
MANAGEMENT EQUITY NOTE
THIS NOTE IS NOT TRANSFERABLE UNLESS AS A CONDITION
PRECEDENT TO THE EFFECTIVENESS OF ANY TRANSFER THE PAYEE HAS
OBTAINED THE WRITTEN CONSENT OF THE COMPANY AS TO
THE PROPOSED TRANSFER.
$__________
Philadelphia, Pennsylvania
_____,19
SUBORDINATED INSTALLMENT NOTE
1. For value received, ARAMARK CORPORATION (formerly The ARA Group, Inc.
and ARA Holding Company), a Delaware corporation (the "Company"), hereby
promises to pay to (the "Payee") the sum of $ in equal,
annual installments of $ and one final installment of $ on each
[April/October] 15 commencing on [April/October] 15, 19 , and to pay simple
interest at the rate of % per annum on the unpaid balance thereof, semi-annually
in arrears on each April 15 and October 15.
2. The Payee may not sell, assign or otherwise transfer or encumber any
portion of this Note or interest herein without first procuring the written
consent of the Company, which consent the Company is under no obligation to
provide. No transfer of this Note shall be effective unless such transfer is in
compliance with the foregoing, including the requirements set forth in the
legend provided for above.
3. Both the principal of this Note and interest thereon are payable in
lawful money of the United States of America at 1101 Market Street,
Philadelphia, PA 19107, or such address of any subsequent principal executive
office of the Company within the United States of America as the Company shall
designate in writing to the Payee, or at the option of the Company, by check
mailed to the Payee at such address for the Payee as is indicated on the books
of the Company.
4. This Note may be prepaid in full, or in part, any time, without
premium or penalty. All prepayments shall be applied first to accrued interest
and then to installments of principal in the order of their maturities.
5. The indebtedness evidenced by this Note and the payment of the
principal of and interest on this Note are hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, to the prior payment in full of
all Senior Indebtedness.
5.1 "Senior Indebtedness" means the principal of, premium, if any,
interest and any other amounts due on (1) all Indebtedness incurred, assumed or
guaranteed by
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the Company, either before or after the date hereof, (excluding any debt which
by the terms of the instrument creating or evidencing the same is not superior
in right of payment to this Note), including, without limitation, (a) any amount
payable with respect to any lease, conditional sale or installment sale
agreement or other financing instrument or agreement which in accordance with
generally accepted accounting principles is, at the date hereof or at the time
the lease, conditional sale or installment sale agreement or other financing
instrument or agreement is entered into, or assumed or guaranteed by, directly
or indirectly, the Company, required to be reflected as a liability on the face
of the balance sheet of the Company, (b) any amounts payable in respect to any
interest rate exchange agreement, currency exchange agreement or similar
agreement and (c) any subordinated indebtedness of a corporation merged with or
into or acquired by the Company; and (2) any renewals or extensions or refunding
of any such Senior Indebtedness or evidences of indebtedness issued in exchange
for such Senior Indebtedness.
5.2 "Indebtedness" means (a) all items, except items of capital stock or
of surplus or of general contingency reserves or of reserves for deferred income
taxes, which in accordance with generally accepted accounting principles in
effect on the date hereof should be included in determining total liabilities as
shown on the liability side of a balance sheet of the Company as at the date of
which Indebtedness is to be determined, (b) all indebtedness secured by any
mortgage, pledge, lien or conditional sale or other title retention agreement
existing on any property or asset owned or held by the Company, whether or not
such indebtedness shall have been assumed, and (c) all indebtedness of others
which the Company has directly or indirectly guaranteed, endorsed, discounted or
agreed (contingently or otherwise) to purchase or repurchase or otherwise
acquire, or in respect of which the Company has agreed to supply or advance
funds or otherwise to become liable directly or indirectly with respect thereto,
including, without limitation, indebtedness arising out of the sale or transfer
of accounts or notes receivable or any moneys due or to become due.
6. In the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether voluntary or involuntary and whether in
bankruptcy, insolvency or receivership proceedings, or upon an assignment for
the benefit of creditors or any readjustment of debt, arrangement or composition
among creditors or any other marshalling of the assets and liabilities of the
Company or otherwise), then holders of Senior Indebtedness shall first be paid
in full, or provision made for such payment, before any payment or distribution,
directly or indirectly (including by way of set off) is made upon the principal
of or interest on this Note, and to that end the holders of Senior Indebtedness
shall be entitled to receive in payment thereof any payment or distribution of
assets of the Company, whether in cash or property or securities, which may be
payable or deliverable in any such proceeding in respect of this Note. The Payee
irrevocably authorizes, empowers and directs all receivers, custodians, trustee,
liquidators, conservators and others having authority in the premises to effect
all such payments and deliveries. Notwithstanding any statute, including without
limitation the Federal Bankruptcy Code, any rule of law or bankruptcy procedures
to the contrary, the right of the holders of the Senior Indebtedness to have all
of the Senior Indebtedness paid
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and satisfied in full prior to the payment of any amounts due the payee under
this Note shall include, without limitation, the right of the holders of the
Senior Indebtedness to be paid in full all interest accruing on the Senior
Indebtedness due them after the filing of any petition by or against the Company
in connection with any bankruptcy or similar proceeding or any other proceeding
referred to in paragraph 6 hereof, prior to the payment of any amounts in
respect of the Note, including, without limitation, any interest due to the
Payee accruing after such date.
7. No payment, directly or indirectly (including by way of set off),
shall be made by the Company with respect to the principal of or interest on
this Note if (i) an event of default has happened with respect to any Senior
Indebtedness, as defined therein or in the instrument under which the same is
outstanding which if occurring prior to the stated maturity of such Senior
Indebtedness, permits holders thereof upon the giving of notice or passage of
time, or both, to accelerate the maturity thereof ("Senior Indebtedness
Default") and has not been cured, (ii) a payment by the Company to or for the
benefit of Payee would, immediately after giving effect thereto, result in a
Senior Indebtedness Default, or (iii) full payment of all amounts then due for
principal of (or premium, if any), interest or any other amounts due on Senior
Indebtedness shall not then have been made or duly provided for. Upon the
occurrence of any events described in (i), (ii) or (iii) described above,
notwithstanding any event of default under this Note by the Company, the Payee
may not accelerate the maturity of all or any portion of this Note, or take any
action towards collection of all or any portion of this Note or enforcement of
any rights, powers or remedies under this Note, or applicable law until the
earlier of the date on which a Senior Indebtedness Default (or in the case of
(iii) required payments shall have been duly provided for) have been cured or
such Senior Indebtedness has been paid in full.
8. In the event that, notwithstanding the foregoing, the Company shall
make any payment prohibited by Section 6 or 7, then, except as hereinafter in
this Section otherwise provided, unless and until any such Senior Indebtedness
Default shall have been cured or waived or shall cease to exist, such payment
shall be held in trust for the benefit of and shall be paid over to the holders
of Senior Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instrument evidencing
the Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay in full all Senior Indebtedness then due,
after giving effect to any concurrent payment to the holders of such Senior
Indebtedness.
9. Subject to the payment in full of all Senior Indebtedness at the time
outstanding, the Payee shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of assets of the
Company applicable to the Senior Indebtedness until this Note shall be paid in
full, and no payments or distributions to the holders of Senior Indebtedness by
or on behalf of the Company from the proceeds that would otherwise be payable to
the Payee, or by or on behalf of the Payee, shall as between the Company and the
Payee, be deemed to be a payment by the Company to or for the account of holders
of Senior Indebtedness.
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10. No holder of Senior Indebtedness shall be prejudiced in his or her
right to enforce subordination of this Note by any act on the part of the
Company. The above provisions in regard to subordination are intended solely for
the purpose of defining the relative rights of the Payee on the one hand, and
the holders of Senior Indebtedness, on the other hand, and nothing contained in
this Note is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Indebtedness and the Payee, the obligation of
the Company, which is absolute and unconditional, to pay to the Payee, subject
to the rights of the holders of Senior Indebtedness, the principal of and
interest on this Note as and when the same shall become due and payable in
accordance with its terms, subject to the rights, if any, under the above
subordination provisions, of holders of Senior Indebtedness to receive cash,
property or securities of the Company payable in respect thereof.
11. The principal of this Note and accrued unpaid interest thereon shall
(if not already due and payable) upon written demand by the Payee become due and
payable forthwith, if there shall have been a default in the payment of any
interest on, or principal of, this Note when it becomes due and payable (but
only if such payment is not prohibited by the provisions of this Note), and such
default shall have continued for a period of 30 days after written notice of
such default shall have been given to the Company and shall be continuing at the
time of such written demand.
12. No course of dealing between the Company and the Payee or any delay on
the part of the Payee in exercising any rights under this Note shall operate as
a waiver of any rights of the Payee.
13. All notices and other communications hereunder shall be in writing and
shall be deemed to have been given when delivered, or deposited in the mails,
first-class, postage prepaid, or delivered to a telegraph office for
transmission, if to the Payee, at such address for the Payee as is indicated on
the books of the Company or if to the Company, at the address of the principal
executive offices of the Company as provided above.
14. This Note shall be governed by the laws of the State of Delaware.
ARAMARK CORPORATION
By: _______________________
Treasurer:
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