EXHIBIT 99.3(b)(1)
CONFORMED COPY
$1,400,000,000
CREDIT AND GUARANTY AGREEMENT
dated as of
January 7, 1998
among
ARAMARK SERVICES, INC.,
ARAMARK UNIFORM SERVICES GROUP, INC.,
ARAMARK CORPORATION,
as Parent Guarantor
THE BANKS LISTED HEREIN
and
THE CHASE MANHATTAN BANK
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Agents
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions...................................................................................1
SECTION 1.02. Accounting Terms and Determinations..........................................................16
SECTION 1.03. Types of Borrowings..........................................................................16
ARTICLE 2
THE LOANS
SECTION 2.01. Commitments to Lend..........................................................................17
SECTION 2.02. Notice of Committed Borrowings...............................................................17
SECTION 2.03. Money Market Borrowings......................................................................18
SECTION 2.04. Swingline Advances...........................................................................21
SECTION 2.05. Notice to Banks; Funding of Loans............................................................21
SECTION 2.06. Maturity of Loans............................................................................22
SECTION 2.07. Notes........................................................................................22
SECTION 2.08. Interest.....................................................................................23
SECTION 2.09. Facility Fees................................................................................28
SECTION 2.10. Reduction of Commitments.....................................................................29
SECTION 2.11. Mandatory Termination of Commitments.........................................................31
SECTION 2.12. Optional Prepayments.........................................................................31
SECTION 2.13. Payments.....................................................................................31
SECTION 2.14. Funding Losses...............................................................................32
SECTION 2.15. Withholding Tax Exemption....................................................................32
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness................................................................................33
SECTION 3.02. Conditions to Borrowing......................................................................35
SECTION 3.03. Representation by Borrower...................................................................35
SECTION 3.04. Transitional Provisions......................................................................35
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power................................................................36
SECTION 4.02. Corporate and Governmental Authorization; No Contravention...................................36
PAGE
SECTION 4.03. Binding Effect...............................................................................37
SECTION 4.04. Financial Information........................................................................37
SECTION 4.05. Litigation...................................................................................37
SECTION 4.06. Compliance with ERISA........................................................................37
SECTION 4.07. Environmental Matters........................................................................38
SECTION 4.08. Taxes........................................................................................38
SECTION 4.09. Compliance with Laws.........................................................................38
SECTION 4.10. Not an Investment Company....................................................................39
SECTION 4.11. Full Disclosure..............................................................................39
ARTICLE 5
COVENANTS
SECTION 5.01. Information..................................................................................39
SECTION 5.02. Payment of Obligations.......................................................................42
SECTION 5.03. Maintenance of Property; Insurance...........................................................42
SECTION 5.04. Conduct of Business and Maintenance of Existence.............................................42
SECTION 5.05. Inspection of Property, Books and Records....................................................43
SECTION 5.06. Maintenance of Stock of Borrowers............................................................43
SECTION 5.07. Negative Pledge..............................................................................43
SECTION 5.08. Consolidations, Mergers and Sales of Assets..................................................44
SECTION 5.09. Fixed Charge Coverage........................................................................45
SECTION 5.10. Debt Coverage................................................................................45
SECTION 5.11. Minimum Consolidated Net Worth...............................................................45
SECTION 5.12. Transactions with Affiliates.................................................................45
SECTION 5.13. Use of Proceeds..............................................................................45
SECTION 5.14. Restricted Payments..........................................................................46
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default............................................................................46
SECTION 6.02. Notice of Default............................................................................49
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization................................................................49
SECTION 7.02. Agents and Affiliates........................................................................49
SECTION 7.03. Action by Agents.............................................................................49
SECTION 7.04. Consultation with Experts....................................................................50
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PAGE
SECTION 7.05. Liability of Agents..........................................................................50
SECTION 7.06. Indemnification..............................................................................50
SECTION 7.07. Credit Decision..............................................................................50
SECTION 7.08. Agency Fees..................................................................................51
SECTION 7.09. Successor Agents.............................................................................51
SECTION 7.10. Co-Agents....................................................................................51
ARTICLE 8
CHANGES IN CIRCUMSTANCES AFFECTING FIXED RATE LOANS
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.....................................51
SECTION 8.02. Illegality...................................................................................52
SECTION 8.03. Increased Cost...............................................................................52
SECTION 8.04. Base Rate Loans Substituted for Affected Loans...............................................54
ARTICLE 9
GUARANTEE
SECTION 9.01. The Guarantee................................................................................55
SECTION 9.02. Guarantee Unconditional......................................................................55
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement in Certain
Circumstances.....................................................................................56
SECTION 9.04. Waiver.......................................................................................57
SECTION 9.05. Subrogation and Contribution.................................................................57
SECTION 9.06. Stay of Acceleration.........................................................................57
ARTICLE 10
JUDICIAL PROCEEDINGS
SECTION 10.01. Consent to Jurisdiction.....................................................................57
SECTION 10.02. Enforcement of Judgments....................................................................57
SECTION 10.03. Service of Process..........................................................................58
SECTION 10.04. No Limitation on Service or Suit............................................................58
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices.....................................................................................58
SECTION 11.02. No Waiver...................................................................................58
SECTION 11.03. Expenses; Documentary Taxes; Indemnification for Litigation.................................59
SECTION 11.04. Amendments and Waivers......................................................................59
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PAGE
SECTION 11.05. Sharing of Set-offs.........................................................................60
SECTION 11.06. New York Law................................................................................60
SECTION 11.07. Successors and Assigns......................................................................60
SECTION 11.08. Collateral..................................................................................62
SECTION 11.09. Counterparts................................................................................62
SECTION 11.10. WAIVER OF JURY TRIAL........................................................................62
Exhibit A - Note
Exhibit B - Opinion of Counsel of the
Borrowers and the Parent Guarantor
Exhibit C - Opinion of Special Counsel for the Agents
Exhibit D - Subsidiary Guaranty Agreement
Exhibit E - Management Equity Note
Exhibit F - Invitation for Money Market Quotes
Exhibit G - Money Market Quote
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CREDIT AND GUARANTY AGREEMENT
AGREEMENT dated as of January 7, 1998 (the "Agreement") among ARAMARK
SERVICES, INC., ARAMARK UNIFORM SERVICES GROUP, INC., ARAMARK CORPORATION, as
the Parent Guarantor, the BANKS party hereto and THE CHASE MANHATTAN BANK and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Agents.
ARTICLE
DEFINITIONS
SECTION 1.01 Definitions. The following terms, as used herein, have
the following meanings:
"Adjusted CD Rate" has the meaning set forth in Section 2.08(c).
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Banks hereunder, and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form requested by the Administrative Agent
that is submitted to the Administrative Agent (with a copy to the other Agent
and the Borrowers) duly completed by such Bank.
"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.
"Agents" means The Chase Manhattan Bank and ▇▇▇▇▇▇ Guaranty Trust
Company of New York, in their respective capacities as agents for the Banks
hereunder, including, in the case of the Administrative Agent, its
administrative capacities hereunder.
"ARAMARK Services" means ARAMARK Services, Inc., a Delaware
corporation, and its successors.
"ARAMARK UNIFORM" means ARAMARK Uniform Services Group, Inc., a Delaware
corporation, and its successors.
The "ARTICLE 8 SHARE" of any Borrower with respect to any amount payable
under Section 8.03 is the sum of (i) to the extent such amount is properly
allocable to Loans outstanding hereunder, the portion of such amount properly
allocable to the Loans outstanding to such Borrower and (ii) to the extent such
amount is not properly allocable to Loans outstanding hereunder, 50%.
"ASSESSMENT RATE" has the meaning set forth in Section 2.08(c).
"BANK" means each bank listed on the signature pages hereof as having a
Commitment, and (subject to Section 11.07) its successors and assigns, and
"BANKS" means all of the foregoing.
"BASE OVERDUE INTEREST RATE" has the meaning set forth in Section 2.08(b).
"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 1/2 of 1% plus the Federal Funds
Rate for such day.
"BASE RATE LOAN" means a Committed Loan made or to be made by a Bank as a
Base Rate Loan in accordance with the applicable Notice of Committed Borrowing
or pursuant to Article VIII.
"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 either ARAMARK Services or ARAMARK Uniform. References to
"the Borrower" in connection with any Loan or Borrowing are to the particular
Borrower to which such Loan is made or proposed to be made or by which such
Borrowing is made or proposed to be made. References to "BORROWERS" shall mean
both ARAMARK Services and ARAMARK Uniform.
"BORROWING" has the meaning set forth in Section 1.03.
"CAPITAL LEASE" means a lease that would be capitalized on a balance sheet
of the lessee prepared in accordance with generally accepted accounting
principles.
"CD BASE RATE" has the meaning set forth in Section 2.08(c).
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"CD LOAN" means a Committed Loan made or to be made by a Bank as a CD Loan
in accordance with the applicable Notice of Committed Borrowing.
"CD REFERENCE BANKS" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, The
Chase Manhattan Bank and First Union National Bank.
"CO-AGENTS" means the Banks identified on the signature pages hereof as
such, in their capacity as Co-Agents in respect of this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
"COMMITMENT" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof (or, in the case of
an Assignee, the portion of the transferor Bank's Commitment assigned to such
Assignee pursuant to Section 11.07), in each case, as such amount may be reduced
from time to time pursuant to Section 2.10 or changed as a result of an
assignment pursuant to Section 11.07.
"COMMITTED LOAN" means a loan made or to be made by a Bank pursuant to
Section 2.01.
"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 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
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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" means any Loan or Swingline Advance.
"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
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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 (or, when used with reference to
any Swingline Advance, in the city in which the lending Bank is located) are
authorized or required by law to close.
"DOMESTIC LENDING OFFICE" means, as to each Bank, 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 Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrowers and the Administrative Agent; provided that any Bank may
so designate separate Domestic Lending Offices for its Base Rate Loans, on the
one hand, and its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"DOMESTIC LOAN" means a CD Loan or a Base Rate Loan.
"DOMESTIC RESERVE PERCENTAGE" has the meaning set forth in Section 2.08(c).
5
"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 3.01.
"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.
"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 Bank, 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 Bank as it may
hereafter designate as its Euro-Dollar Lending Office by notice to the Borrowers
and the Administrative Agent.
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"EURO-DOLLAR LOAN" means a Committed Loan made or to be made as a Euro-
Dollar Loan pursuant to the applicable Notice of Committed Borrowing.
"EURO-DOLLAR OVERDUE INTEREST RATE" means a rate of interest determined
pursuant to Section 2.08(f).
"EURO-DOLLAR REFERENCE BANKS" means the principal London offices of ▇▇▇▇▇▇
Guaranty Trust Company of New York, The Chase Manhattan Bank and First Union
National Bank.
"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 Bank 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.
"EXISTING CREDIT AGREEMENT" means the Credit and Guaranty Agreement dated
as of May 29, 1996 among ARAMARK Services, the Parent Guarantor, the banks party
thereto and The Chase Manhattan Bank (formerly known as Chemical Bank) and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as agents, as in effect immediately
prior to the effectiveness of this Agreement.
"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
7
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 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 The Chase Manhattan 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.
"FIXED RATE LOANS" means CD Loans or Euro-Dollar Loans or Money Market
Loans or any combination of the foregoing.
"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:
(1) with respect to each Euro-Dollar Borrowing, the period commencing on
the date of such Euro-Dollar Borrowing and ending one, two, three or six months
thereafter, or (subject to paragraph (e) of Section 2.08) 12 months thereafter,
as the Borrower may elect in the applicable Notice of Borrowing; provided that:
8
(a) any Interest Period that would otherwise end on a day that is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-
Dollar Business Day unless such 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 that 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 clause (c) below, end on the last day of a calendar
month; and
(c) no Interest Period applicable to any Euro-Dollar Loan shall extend
beyond a date on which a payment of principal of the Loans is required (as
of the commencement of such Interest Period) to be made under Section
2.10(f) or Section 2.11, unless the aggregate principal amount of the Loans
represented by Base Rate Loans, or by Fixed Rate Loans having Interest
Periods that will expire on or before such date, equal or exceeds the
amount of such principal payment;
(2) with respect to each CD Borrowing, the period commencing on the date of
such Borrowing and ending 30, 60, 90 or 180 days thereafter, as the Borrower may
elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) 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; and
(b) no Interest Period applicable to any CD Loan shall extend beyond a
date on which a payment of principal of the Loans is required (as of the
commencement of such Interest Period) to be made under Section 2.10(f) or
Section 2.11, unless the aggregate principal amount of the Loans
represented by Base Rate Loans, or by Fixed Rate Loans having Interest
Periods that will expire on or before such date, equal or exceeds the
amount of such principal payment;
(3) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending on the next succeeding Quarterly Date;
provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) 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; and
(b) any Interest Period which would otherwise end after the Termination
Date shall end on the Termination Date;
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(4) with respect to each Money Market Borrowing, the period commencing on
the date of such Borrowing and ending such number of days thereafter (but not
less than 7 nor more than 270 days) as the Borrower may elect in accordance with
Section 2.03; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) 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; and
(b) no Interest Period applicable to any Money Market Loan shall extend
beyond a date on which a payment of principal of the Loans is required (as
of the commencement of such Interest Period) to be made under Section
2.10(f) or Section 2.11, unless the aggregate principal amount of the Loans
represented by Base Rate Loans, or by Fixed Rate Loans having Interest
Periods that will expire on or before such date, equal or exceeds the
amount of such principal payment; and
(5) with respect to each Swingline Advance, the period commencing on the
date of such Swingline Advance and ending on the applicable Swingline Maturity
Date.
"INTEREST RATE AGREEMENT" means an agreement under the International Swap
and Derivatives Association, Inc. Master Agreement (or any predecessor or
successor agreement), or any other interest rate swap agreement or similar
agreement between a Borrower and one or more of the Banks or any affiliates of
the Banks.
"INTEREST RATE INDEBTEDNESS" means the obligations of a Borrower to the
Banks or any of them in respect of the Interest Rate Agreements.
"LENDING OFFICE" means, as to any Bank, its Domestic Lending Office, its
Euro-Dollar Lending Office or its Money Market Lending Office, as the context
may require.
"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
10
or lessor under any conditional sale agreement or other title retention
agreement relating to such asset or any Capital Lease.
"LOAN" means a Domestic Loan or a Euro-Dollar or a Money Market Loan, and
"LOANS" means Domestic Loans or Euro-Dollar Loans or Money Market Loans or any
combination of the foregoing.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.08(d).
"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 consideration 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
11
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.
"MONEY MARKET AUCTION" means a solicitation of Money Market Quotes setting
forth Money Market Rates pursuant to Section 2.03.
"MONEY MARKET LENDING OFFICE" means, as to each Bank, its Domestic Lending
Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the
Borrowers and the Administrative Agent.
"MONEY MARKET LOAN" means a loan made or to be made by a Bank pursuant to a
Money Market Auction.
"MONEY MARKET QUOTE" means an offer by a Bank to make a Money Market Loan
in accordance with Section 2.03.
"MONEY MARKET RATE" has the meaning set forth in Section 2.03(c).
"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.
"NOTES" means promissory notes of a Borrower, substantially in the form of
Exhibit A hereto, evidencing the obligation of such Borrower to repay the Loans
and the Swingline Advances, and "NOTE" means any one of such promissory notes
issued hereunder.
"NOTICE OF BORROWING" means a Notice of Committed Borrowing or a Notice of
Money Market Borrowing.
"NOTICE OF COMMITTED BORROWING" has the meaning set forth in Section
2.02(a).
"NOTICE OF MONEY MARKET BORROWING" has the meaning set forth in Section
2.03(d).
"OBLIGORS" means the Borrowers, the Parent Guarantor and each Subsidiary
from time to time party to the Subsidiary Guaranty Agreement.
"PARENT" means, with respect to any Bank, any Person controlling such Bank.
12
"PARENT GUARANTOR" means ARAMARK Corporation, a Delaware corporation and
its successors.
"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.
"PRIME RATE" means the rate of interest publicly announced from time to
time by The Chase Manhattan 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 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.
13
"QUARTERLY DATE" means each March 31, June 30, September 30 and December
31.
"REFERENCE BANKS" means the CD Reference Banks or the Euro-Dollar Reference
Banks, as the context may require, and "REFERENCE BANK" means any one of such
Reference Banks.
"REFUNDING BORROWING" means a Borrowing which, after application of the
proceeds thereof, results in no net increase in the outstanding principal amount
of Committed Loans made by any Bank.
"REGULATION U" has the meaning set forth in Section 5.13.
"REQUIRED BANKS" means at any time Banks having at least 51% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 51% of the aggregate unpaid
principal amount of the Loans.
"REVOLVING CREDIT PERIOD" means the period from the Effective Date to but
not including the Termination Date.
"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
14
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 Borrowers, the Parent Guarantor and
certain Subsidiaries, in the form of Exhibit D hereto.
"SWINGLINE ADVANCE" means an advance made by a Bank to a Borrower pursuant
to a solicitation of offers therefor in accordance with Section 2.04.
"SWINGLINE MATURITY DATE" has the meaning set forth in Section 2.06.
"TERMINATION DATE" means March 31, 2005, or if such date is not a Euro-
Dollar Business Day, the next succeeding Euro-Dollar Business Day unless such
succeeding Euro-Dollar Business Day falls in another calendar month, in which
case the Termination Date shall be the next preceding Euro-Dollar Business Day.
"THE CHASE MANHATTAN BANK" means The Chase Manhattan Bank and its
successors.
"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
15
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.
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 October 3, 1997 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
Borrowers notify the Agents that the Borrowers wish to amend any covenant in
Article V to eliminate the effect of any change in generally accepted accounting
principles on the operation of such covenant (or if the Agents notify the
Borrowers that the Required Banks wish to amend Article V for such purpose),
then the Borrowers' 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 Borrowers and the Required
Banks.
Section 1.03. Types of Borrowings. The term "BORROWING" denotes the
aggregation of Loans of one or more Banks to be made to a single Borrower
pursuant to Article II on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement either by reference to
the pricing of Loans comprising such Borrowing (e.g., a "EURO-DOLLAR BORROWING"
is a Borrowing comprised of EuroDollar Loans) or by reference to the provisions
of Article II under which participation therein is determined (i.e., a
"COMMITTED BORROWING" is a Borrowing under Section 2.01 in which all Banks
participate in proportion to their Commitments, while a "MONEY MARKET BORROWING"
is a Borrowing under Section 2.03 in which the Bank participants are determined
on the basis of their bids in accordance therewith).
16
ARTICLE 2
The Loans
Section 2.01. Commitments to Lend. During the Revolving Credit Period each
Bank severally agrees, on the terms and conditions set forth in this Agreement,
to make loans to either Borrower pursuant to this Section from time to time in
amounts such that the aggregate principal amount of Committed Loans by such Bank
at any one time outstanding to both Borrowers shall not exceed the amount of
such Bank's Commitment. Each Borrowing under this Section shall be in an
aggregate principal amount of $5,000,000 or any larger multiple of $5,000,000
(except that any such Borrowing may be in the aggregate amount available in
accordance with Section 3.02(b)) and shall be made from the several Banks
ratably in proportion to their respective Commitments. Within the foregoing
limits, the Borrowers may borrow under this Section, repay or, to the extent
permitted by Section 2.12, prepay Loans and reborrow at any time during the
Revolving Credit Period pursuant to this Section.
Section 2.02. Notice of Committed Borrowings. (a) A Borrower shall give
the Administrative Agent at least two Domestic Business Days' notice (or, in the
case of a Base Rate Borrowing on a date for which such Borrower has requested
quotes pursuant to a Money Market Auction but not accepted quotes in the full
amount for which requested, notice not later than 11:00 A.M. (New York City
time) on the date of such Borrowing) (a "NOTICE OF COMMITTED BORROWING") of its
intention to make a Domestic Borrowing and at least three Euro-Dollar Business
Days' notice (five Euro-Dollar Business Days' notice, in the case of a Euro-
Dollar Borrowing with respect to which a 12-month Interest Period is requested)
of its intention to make a Euro-Dollar Borrowing, in each case in writing (or by
telephone confirmed in writing not later than the close of business on the next
succeeding Domestic Business Day or Euro-Dollar Business Day, as applicable)
specifying:
(i) the proposed date of such Borrowing, which shall be a
Domestic Business Day in the case of a Domestic Borrowing or a Euro-
Dollar Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be CD
Loans, Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Fixed Rate Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
17
(b) The provisions of subsection (a) above notwithstanding, if a Borrower
shall not have given a Notice of Committed Borrowing not later than two Domestic
Business Days prior to the last day of the Interest Period applicable to an
outstanding Committed Borrowing consisting of Base Rate Loans, then, unless such
Borrower shall have notified the Administrative Agent not later than two
Domestic Business Days prior to the last day of such Interest Period that it
elects not to borrow on such date, the Administrative Agent shall be deemed to
have received a Notice of Committed Borrowing specifying (i) that the date of
the proposed Borrowing shall be the last day of the Interest Period applicable
to such outstanding Borrowing, (ii that the aggregate amount of the proposed
Borrowing shall be the amount of such outstanding Borrowing (reduced to the
extent necessary to reflect any reduction of the Commitments on or prior to the
date of the proposed Borrowing), and (ii that the Loans comprising the proposed
Borrowing are to be Base Rate Loans.
(c) No more than eight Euro-Dollar Borrowings and eight CD Borrowings
shall be outstanding at any one time and no more than four Euro-Dollar
Borrowings or CD Borrowings at any one time outstanding shall have one-month or
30-day Interest Periods.
Section 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed Borrowings pursuant
to Section 2.01, a Borrower may, as set forth in this Section, request the Banks
during the Revolving Credit Period to make offers to make Money Market Loans to
such Borrower. The Banks may, but shall have no obligation to, make such offers
and such Borrower may, but shall have no obligation to, accept any such offers
in the manner set forth in this Section 2.03.
(b) Money Market Quote Request. When a Borrower wishes to request offers
to make Money Market Loans under this Section 2.03, it shall transmit an
Invitation for Money Market Quotes substantially in the form of Exhibit F hereto
to each of the Banks by telex or facsimile transmission so as to be received no
later than 10:00 A.M. (New York City time) on the Domestic Business Day next
preceding the date of Borrowing proposed therein specifying:
(i) the proposed date of Borrowing, which shall be a Domestic
Business Day,
(ii) the aggregate amount of such Borrowing, which shall be
$5,000,000 or a larger multiple of $1,000,000, and
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period.
18
A Borrower may request offers to make Money Market Loans for up to six
different Interest Periods in a single Invitation for Money Market Quotes. No
Invitation for Money Market Quotes shall be given within three Domestic Business
Days of any other Invitation for Money Market Quotes.
(c) Submission and Contents of Money Market Quotes. (i) Each Bank may
submit a Money Market Quote containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection (c) and must be
submitted to the Borrower by telex or facsimile transmission at its offices
specified in or pursuant to Section 11.01 not later than 10:00 A.M. (New York
City time) on the proposed date of Borrowing. Subject to Articles III and VI,
any Money Market Quote so made shall be irrevocable except with the written
consent of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of Exhibit
G hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be greater
than or less than the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may not exceed the
principal amount of Money Market Loans for which offers were requested
and (z) may be subject to an aggregate limitation as to the principal
amount of Money Market Loans for which offers being made by such quoting
Bank may be accepted,
(C) the rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "MONEY MARKET RATE") offered for each such Money
Market Loan, and
(D) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit G hereto or
does not specify all of the information required by subsection (c)(ii);
19
(B) except as provided in subsection (c)(ii)(B)(z), contains
qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (c)(i).
(d) Acceptance and Notice by Borrower. Not later than 11:00 A.M. (New
York City time) on the proposed date of Borrowing, the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (c). In the case of acceptance, such
notice (a "NOTICE OF MONEY MARKET BORROWING") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Invitation for
Money Market Quotes,
(ii) the principal amount of each Money Market Borrowing must be
$5,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of ascending
Money Market Rates and without regard to any Money Market Quote submitted by
a Bank that amends, modifies or is otherwise inconsistent with a previous
Money Market Quote submitted by such Bank in response to the same Invitation
for Money Market Quotes, unless such subsequent Money Market Quote is
submitted solely to correct a manifest error in such former Money Market
Quote,
(iv) the Borrower may not accept any offer that is described in
subsection (c)(iii) or that otherwise fails to comply with the requirements
of this Agreement, and
(v) the absence of timely acceptance by the Borrower in accordance
with this subsection (d) shall constitute rejection of all related Money
Market Quotes.
(e) Allocation Among Banks. If offers are made by two or more Banks with
the same Money Market Rates, for a greater aggregate principal amount than the
amount in respect of which such offers are accepted for the related Interest
Period, the principal amount of Money Market Loans in respect of which such
offers are accepted shall be allocated by the Borrower among such Banks as
nearly as possible (in multiples of $1,000,000) in proportion to the aggregate
principal amounts of such offers. Such
20
determinations of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
Section 2.04. Swingline Advances.
(a) A Borrower may at any time during the Revolving Credit Period request
any or all of the Banks to offer to make Swingline Advances under this Section.
No such Bank shall have any obligation to make such an offer, and such Borrower
shall have no obligation to request or accept any such offer.
(b) A Borrower may not request or accept any offer to make a Swingline
Advance:
(i) the final maturity date of which is more than 270 days
after the date of such Swingline Advance; or
(ii) the principal amount of which, when added to the aggregate
principal amount of all Credits then outstanding, exceeds the aggregate
Commitments at such time.
(c) A Borrower shall promptly notify the Administrative Agent, upon
receipt of a request therefor from the Administrative Agent during normal
business hours, of the aggregate principal amount of Swingline Advances then
outstanding to such Borrower.
Section 2.05. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative Agent shall
promptly notify (by telex, cable, facsimile transmission, telephone or other
means of telecommunications) each Bank participating therein of the contents
thereof and of such Bank's share of such Borrowing, and such Notice of Borrowing
shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of each
Borrowing, each Bank participating therein shall, except as provided in
subsection (c) of this Section 2.05, make available its share of such Borrowing,
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 III has not been satisfied, the Administrative Agent will
make the funds so received from the Banks available to the Borrower on such date
at the Administrative Agent's aforesaid address.
(c) If pursuant to any provision of this Agreement any Bank makes a new
Committed Loan hereunder to the Borrower on a day on which the Borrower is to
repay
21
all or any part of an outstanding Committed Loan from such Bank, such Bank shall
apply the proceeds of such new Committed Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Bank to the
Administrative Agent, or remitted by the Borrower to the Administrative Agent,
as the case may be.
(d) Unless the Administrative Agent shall have received notice from a Bank
prior to the date of any Borrowing that such Bank will not make available to the
Administrative Agent such Bank's share of such Borrowing, the Administrative
Agent may assume that such Bank has made such share available to the
Administrative Agent on the date of such Borrowing in accordance with
subsections (b) and (c) of this Section 2.05 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 Bank shall not have so
made such share available to the Administrative Agent, such Bank 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 (i) 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 2.08 and (ii in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Loan included in such Borrowing for purposes of this Agreement.
Section 2.06. Maturity of Loans. Each Committed Loan and each Money
Market Loan shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable thereto. Each
Swingline Advance made by a Bank shall mature, and the principal amount thereof
shall be due and payable, on the maturity date specified in the applicable offer
made pursuant to Section 2.04 (the "SWINGLINE MATURITY DATE").
Section 2.07. Notes. (a) The Credits of each Bank to a Borrower shall be
evidenced by a single Note of such Borrower payable to the order of such Bank
for the account of its Lending Office in an amount equal to the aggregate unpaid
principal amount of such Bank's Credits to such Borrower.
(b) Each Bank may, by notice to a Borrower and the Administrative Agent,
request that its Credits of a particular type to such Borrower be evidenced by a
separate Note of such Borrower in an amount equal to the aggregate unpaid
principal amount of such Credits. Each such Note shall be in substantially the
form of Exhibit A hereto with appropriate modifications to reflect the fact that
it evidences solely Credits of the relevant
22
type. Each reference in this Agreement to the "NOTE" of such Bank shall be
deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01, the
Administrative Agent shall deliver, by hand or overnight courier, such Note to
such Bank. Each Bank shall record the date, amount, type and maturity of each
Credit 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 Bank so elects
in connection with any transfer or enforcement of its Note, and is hereby
irrevocably authorized by each 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 the Borrowers and the Parent Guarantor hereunder nor
the rights of any Bank shall be affected by the failure of any Bank to
appropriately record such information on any Note.
Section 2.08. Interest. (a) Subject to paragraph (b) of this Section
2.08, each Base Rate Loan shall bear interest on the unpaid principal amount
thereof from time to time outstanding at a rate per annum equal to the Base
Rate. Such interest rate shall be adjusted automatically on and as of the
effective date of any change in the Base Rate. Such interest shall be payable
with respect to each Base Rate Loan on the last day of the related Interest
Period.
(b) Any overdue principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day from the date payment thereof was due
to but excluding the date of actual payment, at a rate per annum equal to the
sum of 1-1/2% plus the Base Rate for such day (the "BASE OVERDUE INTEREST
RATE").
(c) Each CD Loan shall bear interest on the outstanding principal amount
thereof, for each day during the Interest Period applicable thereto, at a rate
per annum equal to the sum of the CD Margin for such day plus the Adjusted CD
Rate applicable to such Interest Period; provided that (i) such interest rates
shall be adjusted automatically on and as of the effective date of any change in
the Domestic Reserve Percentage, the Assessment Rate or the CD Margin and (ii)
if any CD Loan shall, as a result of clause (2)(b) of the definition of Interest
Period, have an Interest Period of less than 30 days, such CD Loan shall bear
interest during such Interest Period at the rate applicable to Base Rate Loans
during such period. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than 90 days, 90
days after the first day thereof. Any overdue principal of or interest on any
CD 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 1-1/2% plus the sum of the
Adjusted CD Rate applicable to the Interest Period for such Loan plus the CD
Margin for such day and (ii) the Base Overdue Interest Rate for such day.
23
"CD MARGIN" means a rate per annum determined in accordance with the table
set forth below paragraph (g) of this Section 2.08.
The "ADJUSTED CD RATE" applicable to any Interest Period means a rate per
annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%
The "CD BASE RATE" applicable to any Interest Period is the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the next higher 1/100 of 1%) of the prevailing rates
per annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the purchase at face
value from each CD Reference Bank of its certificates of deposit in an amount
comparable to the principal amount of the CD Loan of such CD Reference Bank to
which such Interest Period applies and having a maturity comparable to such
Interest Period.
"DOMESTIC 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 (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of $100,000 or more.
"ASSESSMENT RATE" means for any day the annual assessment rate in effect on
such day which is payable by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup "A" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R. (S)
327.4(a) (or any
24
successor provision) to the Federal Deposit Insurance Corporation (or any
successor) for such Corporation's (or such successor's) insuring time deposits
at offices of such institution in the United States.
(d) Subject to paragraph (f) of this Section 2.08, each Euro-Dollar Loan
shall bear interest on the unpaid principal amount thereof, for each day during
the Interest Period applicable thereto, at an interest rate per annum equal to
the sum of the Euro-Dollar Margin for such day plus the Adjusted Euro-Dollar
Rate applicable to such Interest Period. Such interest rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage or the Euro-Dollar Margin. Interest on each Euro-Dollar Loan
shall be payable on the last day of the related Interest Period 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 table set forth below paragraph (g) of this Section 2.08.
The "ADJUSTED EURO-DOLLAR RATE" applicable to any Interest Period means a
rate per annum equal to the quotient obtained (rounded upward, if necessary, to
the next higher 1/100 of 1%) by dividing (i) the applicable London Interbank
Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
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 Euro-Dollar 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 largest Euro-Dollar Loan to which such Interest Period is to apply and for a
period of time comparable to such Interest Period.
(e) If requested to do so by a Borrower through the Administrative Agent
at least five Euro-Dollar Business Days before the beginning of any Interest
Period applicable to a Euro-Dollar Borrowing, each Bank participating therein
will advise the Administrative Agent before noon (New York City time) on the
third Euro-Dollar Business Day preceding the beginning of such Interest Period
as to whether, if such Borrower selects a duration of 12 months for such
Interest Period, such Bank expects that deposits in dollars with a term
corresponding to such Interest Period will be available to it on the first day
of such Interest Period in the amount required to fund its Euro-Dollar Loan to
which such Interest Period would apply. Unless Banks having more than 34% of
the aggregate principal amount of the Commitments respond by such time to the
effect that they expect such deposits not to be available to them, such Borrower
shall be entitled to select a duration of 12 months for such Interest Period.
25
(f) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 1-1/2% 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 (i) 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 elect) deposits in dollars in an amount approximately
equal to the largest such overdue payment due to any Bank are offered to each
Euro-Dollar Reference Bank in the London interbank market for the applicable
period determined as provided above by (ii 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the Base Overdue Interest Rate
for such day).
(g) The "EURO-DOLLAR MARGIN", "CD MARGIN" and "FACILITY FEE RATE" shall be
for any day the respective percentages indicated in the table set forth below in
the applicable row under the column corresponding to the Status that applies on
such day.
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇ II III IV V VI
-------------------------------------------------------------
Euro-Dollar 0.18% 0.22% 0.30% 0.40% 0.50% 0.70%
Margin
-------------------------------------------------------------
CD Margin 0.28% 0.32% 0.40% 0.50% 0.60% 0.80%
-------------------------------------------------------------
Facility Fee 0.10% 0.11% 0.15% 0.225% 0.25% 0.30%
Rate
-------------------------------------------------------------
For purposes of this Section 2.08(g), the following terms have the
following meanings (in addition to terms defined in Section 1.01):
"LEVEL I STATUS" applies at any date if, at such date, either (x) ARAMARK
Service's long-term debt is rated BBB+ or higher by S&P or Baa1 or higher by
Moody's or (y) the Reference Ratio is equal to or greater than .50 to 1.0.
"LEVEL II STATUS" applies at any date if, at such date, (i) either (x)
ARAMARK Service's long-term debt is rated BBB or higher by S&P or Baa2 or higher
by Moody's or (y) the Reference Ratio is equal to or greater than .45 to 1.0 and
(ii) Level I Status does not apply.
26
"LEVEL III STATUS" applies at any date if, at such date, (i) either (x)
ARAMARK Service's long-term debt is rated BBB- or higher by S&P or Baa3 or
higher by Moody's or (y) the Reference Ratio is equal to or greater than .40 to
1.0 and (ii) neither Level I Status nor Level II Status applies.
"LEVEL IV STATUS" applies at any date if, at such date, (i) either (x)
ARAMARK Service's long-term debt is rated BB+ or higher by S&P or Ba1 or higher
by Moody's or (y) the Reference Ratio is equal to or greater than .35 to 1.0 and
(ii) none of Level I Status, Level II Status and Level III Status applies.
"LEVEL V STATUS" applies at any date if, at such date, (i) either (x)
ARAMARK Service's long-term debt is rated BB or higher by S&P or Ba2 or higher
by Moody's or (y) the Reference Ratio is equal to or greater than .30 to 1.0 and
(ii) none of Level I Status, Level II Status, Level III Status and Level IV
Status applies.
"LEVEL VI STATUS" applies at any date if, at such date, no other Status
applies.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"REFERENCE RATIO" means for any day during any fiscal quarter of the Parent
Guarantor (the "CURRENT QUARTER"), the Leverage Ratio as of the last day of the
most recent fiscal quarter of the Parent Guarantor ended 80 days or more before
the first day of the Current Quarter; provided that from the Effective Date
until July 2, 1998, the Reference Ratio shall be deemed to be at a level
resulting in Level III Status. The Parent Guarantor shall, prior to the first
day of each fiscal quarter of the Parent Guarantor during which Status (if
determined solely on the basis of the Reference Ratio) would differ from the
Status (if so determined) during the next preceding fiscal quarter of the Parent
Guarantor, deliver to the Administrative Agent a certificate of the Parent
Guarantor signed by its chief financial officer, its Treasurer or its chief
accounting officer setting forth in reasonable detail the calculation of the
Reference Ratio.
"S&P" means Standard & Poor's Ratings Services.
"STATUS" refers to the determination of which of Level I Status through
Level VI Status applies at any date.
The credit ratings to be utilized for purposes of the above schedule are
those assigned to the senior unsecured long-term debt securities of ARAMARK
Services without third-party credit enhancement, and any rating assigned to any
other debt security of ARAMARK Services shall be disregarded. The rating in
effect at any date is that in effect at the close of business on such date.
ARAMARK Services shall promptly notify the Administrative Agent of any change in
the credit ratings assigned to its long-term debt.
27
(h) Each Money Market Loan and each Swingline Advance made by a Bank shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the Money Market Rate
quoted by the Bank making such Loan in accordance with Section 2.03 or the fixed
interest rate quoted by the Bank making such Swingline Advance in accordance
with Section 2.04, as the case may be. Such interest shall be payable for each
Interest Period on the last day thereof. Any overdue principal of or interest
on any Money Market Loan or Swingline Advance shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2% plus
the Prime Rate for such day.
(i) The Administrative Agent shall determine each rate of interest
applicable to the Loans. The Administrative Agent shall give prompt notice
thereof to the Borrower and the affected Banks by telephone, facsimile
transmission, telex or cable. The Administrative Agent's good faith
determination of each such rate of interest shall be conclusive in the absence
of manifest error.
(j) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated hereby. 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.
(k) Interest based on the Prime Rate 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, calculated as to each Interest Period or period
fixed pursuant to paragraph (f) of this Section 2.08 from and including the
first day thereof to but excluding the last day thereof.
Section 2.09. Facility Fees. (a) The Borrowers shall be jointly and
severally obligated to pay to the Administrative Agent for the account of the
Banks a facility fee at the Facility Fee Rate (determined daily in accordance
with the schedule set forth below paragraph (g) of Section 2.08) accrued (i)
from and including the Effective Date to but excluding the Termination Date (or
earlier date of termination of the Commitments in their entirety) on the daily
average aggregate amount of the Commitments (whether used or unused) and (ii)
from and including the Termination Date or such earlier date of termination to
but excluding the date the Loans shall be repaid in their entirety, on the daily
aggregate outstanding principal amount of the Loans; provided that no such fee
shall accrue with respect to the portion, if any, of the aggregate Commitments
utilized in the form of Base Rate Loans during any fiscal quarter of the Parent
Guarantor if the Reference Ratio is more than 0.45 to 1 for such fiscal quarter.
28
(b) Accrued facility fees under this Section shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed.
Such facility fees shall be paid quarterly in arrears on each March 31, June 30,
September 30 and December 31 and on the Termination Date (and, if later, such
later date of repayment).
(c) Upon receipt of any amount representing fees paid pursuant to this
Section 2.09, the Administrative Agent shall pay such amount to the Banks in
proportion to their respective Commitments.
Section 2.10. Reduction of Commitments. (a) The Borrowers at their option
may at any time and from time to time upon at least three Domestic Business
Days' notice to the Administrative Agent terminate in their entirety or reduce,
in an aggregate amount of $10,000,000 or any larger multiple of $5,000,000, the
unused Commitments. For this purpose, the Commitments shall be deemed unused at
any time to the extent (and only to the extent) that a Borrower could at such
time borrow Committed Loans without causing the Credits to exceed the aggregate
Commitments at such time. Upon any termination or reduction of the Commitments
pursuant to this subsection (a) or subsection (b) below, the Administrative
Agent shall promptly notify each Bank of such termination or reduction.
(b) In addition, the Commitments shall be reduced:
(i) on each date set forth in the table below by an aggregate
amount equal to the amount set forth in the applicable row under the
column corresponding to such date
DATE AMOUNT OF REDUCTION
-------------------------------------
March 31, 2000 $100,000,000
-------------------------------------
March 31, 2001 $150,000,000
-------------------------------------
March 31, 2002 $150,000,000
-------------------------------------
(ii) upon the incurrence by the Parent Guarantor or any of its
Subsidiaries of Excess Secured Debt (other than Excess Secured Debt
arising out of the refinancing, extension, renewal or refunding of other
Excess Secured Debt, except to the extent, and only to the extent, that
the outstanding principal amount of such other Excess Secured Debt is
increased), in an amount equal to the cash proceeds of such Excess
Secured Debt, net of the reasonable expenses of the Parent Guarantor or
such Subsidiary in connection with such incurrence.
29
(c) (i) Any reduction of the Commitments pursuant to subsection (a) of
this Section 2.10 shall be applied to reduce subsequent mandatory reductions of
the Commitments required by subsection (b)(i) in forward chronological order.
(ii) Any reduction of the Commitments pursuant to subsection (b) (ii) of
this Section 2.10 shall be applied to ratably reduce the amounts of subsequent
mandatory reductions required by subsection (b)(i).
(d) The reduction required by subsection (b)(ii) of this Section 2.10
shall be effective on the date of receipt by the Parent Guarantor or any of its
Subsidiaries of the amounts described therein; provided that, in the event such
amounts shall aggregate less than $10,000,000, such reduction shall be effective
forthwith upon receipt by the Parent Guarantor or any of its Subsidiaries of
proceeds which, together with all other amounts described in subsection (b)(ii)
above not previously applied pursuant to subsection (b)(ii) of this Section
2.10, aggregate $10,000,000 or more. The Borrowers shall give the
Administrative Agent at least four Euro-Dollar Business Days' notice of each
reduction in the Commitments pursuant to subsection (b)(ii) of this Section 2.10
and a certificate of a Principal Officer of the Parent Guarantor, setting forth
the information, in form and substance satisfactory to the Administrative Agent,
necessary to determine the amount of each such reduction.
(e) Each reduction of the Commitments pursuant to this Section 2.10 shall
be applied ratably to the respective Commitments of the Banks. In addition,
each reduction of the Commitments pursuant to this Section 2.10 shall be
permanent.
(f) On each date on which a reduction required by subsection (b) becomes
effective, each Borrower shall, in such proportion as the Borrowers have jointly
determined or in the absence of any such determination as shall be determined by
the Administrative Agent, repay or prepay such principal amount of the
outstanding Credits, if any, as may be necessary so that after such payment or
prepayment, (i) the unpaid principal amount of the Credits does not exceed the
aggregate Commitments after giving effect to such reduction of the Commitments
and (ii) the unpaid principal amount of the Committed Loans of each Bank does
not exceed the amount of the Commitment of such Bank as then reduced. The
particular Borrowings to be repaid shall be as designated by the Borrowers in
the related Notice or Notices of Borrowing; provided that if there shall have
been a mandatory reduction of the Commitments pursuant to subsection (b) of this
Section 2.10 at a time such that, and with the result that, this subsection (f)
would otherwise require payment of principal of Fixed Rate Loans or portions
thereof prior to the last day of the related Interest Period, such payment shall
be deferred to such last day unless the Required Banks otherwise elect by notice
to the Borrowers through the Administrative Agent (and the facility fee provided
for in Section 2.09(a) shall continue
30
to accrue on the amount of such deferred payment until such payment is made).
Each repayment or prepayment pursuant to this subsection (e) shall be made
together with accrued interest to the date of payment or prepayment, and shall
be applied ratably to payment of the Credits of the several Banks in the related
Borrowing.
Section 2.11. Mandatory Termination of Commitments. The Commitments
shall terminate on the Termination Date, and any Loans then outstanding
(together with accrued interest thereon) shall be due and payable on such date.
Section 2.12. Optional Prepayments. (a) A Borrower may (i) upon at least
one Domestic Business Day's notice to the Administrative Agent, prepay any Base
Rate Borrowing without premium or penalty, (ii upon three Domestic Business
Days' notice to the Administrative Agent, subject to Section 2.14, prepay any CD
Borrowing and (ii upon at least three Euro-Dollar Business Days' notice to the
Administrative Agent subject to Section 2.14, prepay any Euro-Dollar Borrowing,
in each case in whole at any time or from time to time in part in an aggregate
amount equal to $5,000,000 or any larger multiple of $5,000,000, by paying the
principal amount being prepaid together with interest accrued thereon to the
date of prepayment. Each such prepayment shall be applied ratably to the Loans
of the Banks included in the applicable Borrowing.
(b) Subject to Section 2.14, Money Market Loans and Swingline Advances
shall be prepayable as may be mutually agreed by the Borrower and the Bank
making any such Money Market Loan or Swingline Advance.
(c) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each affected Bank of the contents
thereof and of such Bank's ratable share of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
Section 2.13. Payments. (a) All payments of principal of, and interest
on, the Loans and of fees and other amounts payable hereunder shall be made 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, without set-off,
counterclaim or other deduction, to the Administrative Agent at its office at ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. The Administrative Agent will promptly distribute
to each Bank in like funds its ratable share of each such payment received by
the Administrative Agent for the account of the Banks.
(b) Whenever any payment of principal of, or interest on, any Domestic
Loans or any Swingline Advances or of facility fees hereunder 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, any Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business
31
Day, the date for payment thereof shall be extended to the next succeeding Euro-
Dollar Business Day, unless such day falls in another calendar month, in which
case such payment shall be due on the next preceding Euro-Dollar Business Day.
Whenever any payment of principal of, or interest on, any Money Market 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. 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.
(c) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Banks hereunder
that such Borrower will not make such payment in full, the Administrative Agent
may assume that such 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 Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent that such
Borrower shall not have so made such payment, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
Section 2.14. Funding Losses. If a Borrower makes any payment of
principal with respect to any Fixed Rate Loan or Swingline Advance (pursuant to
Article II, VI, VIII or otherwise) on any day other than the last day of the
Interest Period applicable thereto, or the last day of an applicable period
fixed pursuant to Section 2.08(f), or if a Borrower fails to borrow or prepay
any Fixed Rate Loan after notice has been given to any Bank in accordance with
Section 2.05(a) or 2.12(c), such Borrower shall reimburse each Bank on demand
for any resulting loss or expense incurred by such Bank (or by any existing or
prospective participant in the related Credit), 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
failure to borrow or prepay, provided that such Bank shall have delivered to
such Borrower a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error.
Section 2.15. Withholding Tax Exemption. At least five Domestic Business
Days prior to the first date on which interest or facility fees are payable
hereunder for the account of any Bank, each Bank that is not incorporated under
the laws of the United States of America or a state thereof agrees that it will
deliver to each Borrower and the Administrative Agent two duly completed copies
of United States Internal Revenue Service Form 1001 or 4224, certifying in
either case that such Bank is entitled to receive payments under the Financing
Documents without deduction or withholding of any United States federal income
taxes. Each Bank which so delivers a Form 1001 or 4224
32
further undertakes to deliver to each Borrower and the Administrative Agent two
additional copies of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by a Borrower or the Administrative Agent, in each case certifying
that such Bank is entitled to receive payments under the Financing Documents
without deduction or withholding of any United States federal income taxes,
unless an event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such form with respect
to it and such Bank advises each Borrower and the Administrative Agent that it
is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
ARTICLE 3
Conditions
Section 3.01. Effectiveness. This Agreement shall become effective on the
date that each of the following conditions shall have been satisfied (or waived
in accordance with Section 11.04):
(a) receipt by the Administrative Agent of counterparts hereof
signed by each of the parties hereto (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 hereof by such party);
(b) receipt by the Administrative Agent for the account of each
Bank of a duly executed Note of each Borrower dated on or before the
Effective Date complying with the provisions of Section 2.07;
(c) 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);
(d) receipt by the Agents of evidence satisfactory to them of
the payment of all principal and interest on any "LOANS" (as therein
defined) outstanding
33
under, and of all other amounts payable under, the Existing Credit
Agreement (excluding amounts payable with respect to the Money Market
Loans and Swingline Advances specified in Section 3.04(b));
(e) receipt by the Agents (i) for their own respective
accounts, of the fees set forth in Section 7.08 and (ii) for the account
of the Banks, of participation fees in the amounts heretofore mutually
agreed upon;
(f) receipt by the Agents of a certificate of a Principal
Officer of the Parent Guarantor and of each Borrower that, upon the
Effective Date, no Default shall have occurred and be continuing and
that each of the representations and warranties made by the Obligors in
or pursuant to the Financing Documents are true and correct in all
material respects;
(g) receipt by the Agents of an opinion of the General Counsel
or Associate General Counsel of each 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 Banks may reasonably request;
(h) receipt by the Agents of an opinion of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, special counsel for the Agents, substantially in the form of
Exhibit C hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably
request; and
(i) receipt by the Agents of all documents they may reasonably
request relating to the existence of each 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 Agents;
provided that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
January 21, 1998. The Administrative Agent shall promptly notify the Borrowers
and the Banks of the Effective Date, and such notice shall be conclusive and
binding on all parties hereto. The Banks that are parties to the Existing
Credit Agreement, comprising the "REQUIRED BANKS" as defined therein, and
ARAMARK Services and the Parent Guarantor agree to eliminate the requirement
under Section 2.10(a) of the Existing Credit Agreement that notice of optional
termination of the commitments thereunder be given three Domestic Business Days
in advance, and further agree that the commitments under the Existing Credit
Agreement shall terminate in their entirety simultaneously with and subject to
the effectiveness of this Agreement and that ARAMARK Services shall be obligated
to pay the accrued facility fees thereunder to but excluding the date of such
effectiveness.
34
Section 3.02. Conditions to Borrowing. The obligation of each Bank to
make a Loan on the occasion of each Borrowing is subject to the satisfaction of
such of the following conditions as shall not have been expressly waived in
writing by Banks having 51% or more in aggregate principal amount of the Loans
to be included in such Borrowing:
(a) receipt (or deemed receipt) by the Administrative Agent of
a Notice of Borrowing as required by Section 2.02 or 2.03, as the case
may be;
(b) the fact that, immediately after such Borrowing, the
aggregate outstanding principal amount of Loans will not exceed an
amount equal to (A) the aggregate amount of the Commitments at such time
less (B) the aggregate outstanding principal amount of Swingline
Advances at such time;
(c) the fact that, immediately after such Borrowing: (i) in the
case of a Refunding Borrowing, no Event of Default and no Default under
Section 6.01(a) or (b) shall have occurred and be continuing and (ii) in
the case of any other Borrowing, 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 (other
than, in the case of a Refunding Borrowing, the representations and
warranties set forth in Sections 4.04(b), 4.05, 4.06, 4.07 and 4.08 of
this Agreement), shall be true and correct in all material respects on
and as of the date of such Borrowing; and
(e) the fact that such Borrowing will not violate any provision
of law or regulation applicable to any Bank (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.
Section 3.03. Representation by Borrower. Each Borrowing under this
Agreement shall be deemed to be a representation and warranty by the Borrower on
the date of such Borrowing as to the facts specified in subsections (b), (c) and
(d) of Section 3.02.
Section 3.04. Transitional Provisions. (a) Upon the Effective Date, any
outstanding Money Market Loans or Swingline Advances of any bank party to the
Existing Credit Agreement that is not a Bank hereunder (a "NON-CONTINUING BANK")
shall become due, and ARAMARK Services shall on the Effective Date repay any
such outstanding Money Market Loans or Swingline Advances made by such Non-
Continuing Banks. If any repayment of Money Market Loans or Swingline Advances
under the Existing Credit Agreement is made pursuant to this subsection (a),
ARAMARK Services
35
agrees that it will reimburse each Non-Continuing Bank for any funding losses
incurred in connection therewith pursuant to Section 2.14 of the Existing Credit
Agreement.
(b) Each Money Market Loan or Swingline Advance outstanding under the
Existing Credit Agreement and made on or prior to the Effective Date by any bank
that is both a party to the Existing Credit Agreement and a Bank hereunder shall
(i) mature on the last day of the then current Interest Period applicable
thereto under the Existing Credit Agreement, (ii bear interest at the interest
rate applicable thereto under the Existing Credit Agreement, (ii be deemed made
pursuant to this Agreement and (iv be deemed no longer outstanding under the
Existing Credit Agreement.
ARTICLE 4
Representations and Warranties
The Parent Guarantor and each Borrower jointly and severally represent and
warrant to each Agent and each Bank that:
Section 4.01. Corporate Existence and Power. Each of the Parent Guarantor,
each 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 Borrowers and the other
Obligors, considered as a whole), and each of the Parent Guarantor, each
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 Borrowers and the other
Obligors, considered as a whole.
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
36
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 provi sion 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 each 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 October 3, 1997
and the related consolidated statements of income and cash flows for the fiscal
year then ended, reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, a copy of which has been
delivered to each of the Banks, fairly present, in conformity with generally
accepted accounting principles, 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) Since October 3, 1997, 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 Borrowers 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, either 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 Borrowers 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
37
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
Borrowers 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 October 2, 1992. The Parent Guarantor, each 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
Borrowers and the other Obligors, considered as a whole.
Section 4.09. Compliance with Laws. The Parent Guarantor, each 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, 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
Borrowers and the other Obligors, considered as a whole.
38
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 Borrowers to the Agents or any Bank 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 each Borrower jointly and severally agree that, so
long as any Bank has any Commitment hereunder or any amount payable under any
Note remains unpaid:
Section 5.01. Information. The Parent Guarantor will deliver to each of
the Banks, with respect to information relating to the Parent Guarantor, from
the Effective Date and, with respect to information relating to a Borrower, from
the date such Borrower borrows any amount hereunder:
(a) within 90 days after the end of each fiscal year of the
Parent Guarantor, consolidated balance sheets of such 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
39
connection with such financial statements has been conducted in
accordance with generally accepted auditing standards and (y) shall not
contain any Qualification;
(b) within 60 days, in the case of the Parent Guarantor, and 75
days, in the case of a Borrower, after the end of each of the first
three quarters of each fiscal year of the Parent Guarantor, consolidated
balance sheets of such Borrower and its respective 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 ARAMARK Services, ARAMARK Uniform 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 (i) 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,
(ii 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 (ii 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;
40
(e) promptly upon the receipt of a request therefor from the
Administrative Agent at the request of any Bank, 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 excess of $10,000,000, if and when any
member of the ERISA Group (i) 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; (ii 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; (ii 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; (iv applies for a waiver of
the minimum funding standard under Section 412 of the Code, a copy of
such application; (v) 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; (vi gives notice of withdrawal from any Plan
pursuant to Section 4063 of ERISA, a copy of such notice; or (vi 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 Bank, may reasonably request.
41
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 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 Banks, 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 Borrowers) 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 Banks;
provided further that nothing in this Section 5.04 shall prohibit the
termination of the corporate existence of either
42
Borrower or the Parent Guarantor, if such termination is the result of the
merger of such Borrower with the Parent Guarantor or of the merger of the
Borrowers with each other, in each case, pursuant to Section 5.08 hereof.
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 Bank to the Treasurer of the
Parent Guarantor, will permit, and will cause each of its Subsidiaries to
permit, representatives of any Bank 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 Borrowers. The Parent Guarantor
will at all times maintain ownership of 100% of the outstanding shares of each
class of capital stock of each Borrower, unless such Borrower and the Parent
Guarantor shall have merged or the Borrowers shall have merged with each other,
in each case, in accordance with Section 5.08.
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;
43
(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) subject to Section 2.10(b), any Lien on any asset or assets
of the Parent Guarantor or any of its Subsidiaries securing Excess
Secured Debt.
Section 5.08. Consolidations, Mergers and Sales of Assets. (a) None of
the Parent Guarantor or either Borrower shall consolidate or merge with or into
any Person, except that (i) the Parent Guarantor and either Borrower may merge
with any Person (other than each other) if the Parent Guarantor or such 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 either Borrower may merge with each other and (iii) the
Borrowers 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 a Borrower,
shall have signed an instrument of assumption in form and substance satisfactory
to the Required Banks immediately prior to such merger.
(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.
44
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.
PERIOD LEVERAGE RATIO
Prior to October 2, 1998 .250
On or after October 2, 1998 and prior to .275
October 1, 1999
On or after October 1, 1999 .300
Section 5.11. Minimum Consolidated Net Worth. Consolidated Net Worth
shall (i) at no date on or after October 3, 1997 be less than negative
$75,000,000, (ii at no date on or after October 2, 1998 be less than $0, (iii)
at no date on or after October 1, 1999 be less than $100,000,000 and (iv) at no
date on or after September 29, 2000 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 29, 2000 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 Credits hereunder will be
used for general corporate purposes, including a repurchase and/or redemption by
the Parent Guarantor of its shares of common stock pursuant to a proposed plan
of recapitalization dated as of January 6, 1998. None of such proceeds will be
used in violation of any
45
applicable law or regulation, including without limitation Regulation G, 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 each Loan 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.
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) a Borrower shall fail to pay when due any principal of any Note; or
(b) a Borrower shall fail to pay any interest on any Note or any fees 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 Bank;
or
46
(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 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
47
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 Subsidiary if such Wholly Owned Domestic Material Subsidiary
is a Subsidiary of an Obligor (other than the Parent Guarantor or the
Borrowers); 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;
48
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 50 percent in aggregate amount of the Commitments, by
notice to each Borrower terminate the Commitments, and the Commitments shall
thereupon terminate, and (ii) if requested by the Banks holding Notes evidencing
more than 50 percent in aggregate principal amount of the Loans, by notice to
each Borrower declare the Notes (together with accrued interest thereon) and all
other amounts payable by the Borrowers 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 each 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 Borrowers, without any
notice to any Obligor or any other act by any Agent or any Bank, the Commitments
shall thereupon terminate and the Notes (together with accrued interest thereon)
and all other amounts payable by the Borrowers hereunder shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by each Borrower.
Section 6.02. Notice of Default. The Administrative Agent shall give
notice to the Parent Guarantor and each Borrower under Section 6.01(d) promptly
upon being requested to do so by any Bank and shall thereupon notify all the
Banks thereof.
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes each Agent to take such action as agent on such Bank's
behalf and to exercise such powers under the Financing Documents as are
delegated to such Agent by the terms thereof, together with all such powers as
are reasonably incidental thereto.
Section 7.02. Agents and Affiliates. Each of The Chase Manhattan Bank and
▇▇▇▇▇▇ Guaranty Trust Company of New York shall have the same rights and powers
under this Agreement as any other Bank and may exercise or refrain from
exercising the same as though it were not an Agent, and each of The Chase
Manhattan Bank and ▇▇▇▇▇▇ Guaranty Trust Company of New York 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 an Agent.
Section 7.03. Action by Agents. The obligations of each Agent under the
Financing Documents are only those expressly set forth therein with respect to
it.
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Without limiting the generality of the foregoing, neither Agent shall be
required to take any action with respect to any Default, except as expressly
provided in Article VI.
Section 7.04. Consultation with Experts. Either 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 Agents. Neither any 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 such 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 Banks or (ii) in the absence of
the gross negligence or willful misconduct of such Agent, affiliate, director,
officer, agent or employee. Neither any 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 III 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. Neither Agent
shall 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 Banks shall, ratably in accordance with
their respective Commitments, indemnify each 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 such Agent's gross negligence or willful misconduct) that such Agent may
suffer or incur in connection with the Financing Documents or any action taken
or omitted by such Agent thereunder.
Section 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon either Agent or any other Bank, 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 Bank also acknowledges that it
will, independently and without reliance upon either Agent or any other Bank,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking any
action under the Financing Documents.
50
Section 7.08. Agency Fees. The Borrowers shall be jointly and severally
obligated to pay fees to the Agents in the amounts and on the dates agreed to
prior to the date hereof by the Borrowers and the Agents.
Section 7.09. Successor Agents. Either Agent may resign at any time by
giving notice thereof to the Banks and the Obligors. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor 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 Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as 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
Agent.
Section 7.10. Co-Agents. Nothing contained in this Agreement shall be
construed to impose any obligation or duty whatsoever on any Co-Agent in its
capacity as such.
ARTICLE 8
Changes in Circumstances Affecting Fixed Rate 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 Fixed Rate
Borrowing:
(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 relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having at least a majority
of the aggregate amount of the related Commitments advise the Administrative
Agent that the Adjusted CD Rate or the Adjusted Euro-Dollar Rate, as the case
may be, as determined by the Administrative Agent will not adequately and fairly
reflect the cost to such Banks of maintaining or funding their respective CD
Loans or Euro-Dollar Loans, as the case may be, for such Interest Period,
51
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 Banks) and the Banks, 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 (b) of this Section 8.01, when
the Administrative Agent is so notified by Banks having at least a majority of
the related Commitments, as specified above), the obligations of the Banks to
make CD Loans or Euro-Dollar Loans, as the case may be, shall be suspended.
Unless the Borrower notifies the Administrative Agent at least two Domestic
Business Days before the date of any Fixed Rate Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
if such Fixed Rate Borrowing is a Committed Borrowing, such Borrowing shall
instead be made as a Base Rate Borrowing.
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 Bank (or
its Euro-Dollar Lending Office) with any request or directive (whether or not
having the force of law) of any such author ity, central bank or comparable
agency shall make it unlawful or impossible for any Bank (or its Euro-Dollar
Lending Office) to make, maintain or fund any of its Euro-Dollar Loans and such
Bank shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Banks and each Borrower, whereupon
until such Bank notifies each Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make Euro-Dollar Loans shall be suspended. Before giving any notice
to the Administrative Agent pursuant to this Section 8.02, such Bank 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 Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it may
not lawfully continue to maintain and fund any of its outstanding Euro-Dollar
Loans to maturity and shall so specify in such notice, each Borrower shall
immediately prepay in full the then outstanding principal amount of each such
Euro-Dollar Loan to it, together with accrued interest thereon. Concurrently
with prepaying each such Euro-Dollar Loan, such Borrower shall borrow a Base
Rate Loan in equal principal amount from such Bank (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
of the other Banks), and such Bank shall make such a Base Rate Loan.
Section 8.03. Increased Cost. (a) If on or after (x) the date hereof, in
the case of any Committed Loan or any obligation to make Committed Loans, or (y)
the date of the related Money Market Quote, in the case of any Money Market
Loan, the adoption of
52
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 Bank (or
its Lending Office) with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency:
(A) shall subject any Bank (or its Lending Office) to any tax,
duty or other charge with respect to its Fixed Rate Loans, its Notes or
its obligation to make Fixed Rate Loans, or shall change the basis of
taxation of payments to any Bank (or its Lending Office) of the
principal of or interest on its Fixed Rate Loans or any other amounts
due under this Agreement in respect of its Fixed Rate Loans or its
obligation to make Fixed Rate Loans (except for changes in the rate of
tax on the overall net income of such Bank or its Lending Office imposed
by the jurisdiction in which such Bank's principal executive office or
Lending Office is located); or
(B) 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 (x) with respect
to any CD Loan any such requirement included in an applicable Domestic
Reserve Percentage or Assessment Rate and (y) with respect to any Euro-
Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage) against assets of, deposits with or for the account
of, or credit extended by, any Bank's Lending Office or shall impose on
any Bank (or its Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other
condition affecting its Fixed Rate Loans, its Note or its obligation to
make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Administrative Agent), the Borrowers shall pay to
or for the account of such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction with respect to its
Fixed Rate Loans. Each Borrower shall be severally liable for its Article 8
Share of such amount.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy of
general applicability,
53
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 Bank (or its 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 Bank (or its Parent) as a consequence of an undrawn Commitment
hereunder to a level below that which such Bank (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 Bank
to be material, then from time to time, within 15 days after demand by such Bank
(with a copy to the Administrative Agent), the Borrowers shall pay to such Bank
such additional amount or amounts as will compensate such Bank (or its Parent)
for such reduction. Each Borrower shall be severally liable for its Article 8
Share of such amount. The Borrowers shall not be obligated to compensate any
Bank pursuant to this subsection (b) for reduced return accruing prior to the
date which is 30 days before such Bank 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
Bank 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 Bank has
demanded compensation under this subsection (b), the Borrowers 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 Banks) to
purchase the Note and assume the Commitment of such Bank; and
(c) Each Bank will promptly notify each Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
that will entitle such Bank 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 Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank 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 Bank may use
any reasonable averaging and attribution methods.
Section 8.04. Base Rate Loans Substituted for Affected Loans. If (i) the
obligation of any Bank to make Euro-Dollar Loans has been suspended pursuant to
Section 8.02 or (ii) any Bank has demanded compensation under Section 8.03(a)
and the Borrowers shall by at least five Euro-Dollar Business Days' prior notice
to such Bank through the Administrative Agent have elected that the provisions
of this Section shall apply to such Bank, then, unless and until such Bank
notifies the Borrowers that the
54
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans which would otherwise be made by such Bank as CD
Loans or Euro-Dollar Loans, as the case may be, shall be made instead as
Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of the other Banks),
and
(b) after each of its CD Loans or Euro-Dollar Loans, as the
case may be, has been repaid, all payments of principal that would
otherwise be applied to repay such Fixed Rate Loans shall be applied to
repay its Base Rate Loans instead.
ARTICLE 9
Guarantee
Section 9.01. The Guarantee. The Parent Guarantor hereby unconditionally
and irrevocably guarantees to the Banks, and to each of them, the due and
punctual payment of all present and future indebtedness evidenced by or arising
out of this Agreement, the Notes and any Interest Rate Agreements, 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 Borrowers under this Agreement and the Notes as and when the same
shall become due and payable, whether at maturity, by declaration or otherwise,
according to the terms hereof and thereof and the due and punctual payment of
any Interest Rate Indebtedness. In case of failure by a 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 such Borrower.
Section 9.02. Guarantee Unconditional. The obligations of the Parent
Guarantor under this Article IX 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 or any Interest Rate Agreement by operation of law or
otherwise;
(b) any modification or amendment of or supplement to any
Financing Document or any Interest Rate Agreement;
55
(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 or any Interest Rate
Agreement;
(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 or any Interest
Rate Agreement;
(e) the existence of any claim, set-off or other rights which
the Parent Guarantor may have at any time against any other Obligor, any
Agent, any Bank or any other Person, whether or not arising in
connection with any Financing Document or any Interest Rate Agreement,
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
Interest Rate Agreement, 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 any Interest Rate Agreement; or
(g) any other act or omission to act or delay of any kind by
any other Obligor, any Agent, any Bank 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 the obligations
of the Parent Guarantor under this Article IX.
Section 9.03. Discharge Only upon Payment in Full; Reinstatement in
Certain Circumstances. The Parent Guarantor's obligations under this Article IX
shall remain in 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
Borrowers 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 a Borrower under this Agreement is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of such Borrower or
any Subsidiary Guarantor or otherwise, the Parent Guarantor's obligations under
this Article IX 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.
56
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 a Borrower with respect to such payment or
otherwise to be reimbursed, indemnified or exonerated by a 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 a Borrower under this Agreement or the Notes is
stayed upon the insolvency, bankruptcy or reorganization of such 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 requisite number
of Banks specified in Section 6.01.
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 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.
57
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 X
shall affect the right of the Administrative Agent or any Bank to serve process
in any manner permitted by law, or limit any right that the Administrative Agent
or any Bank 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, either
Borrower or either Agent, at its address or telex or facsimile number set forth
on the signature pages hereof, (y) in the case of any Bank, 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
Agents 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 II or VIII shall not be effective until
received.
Section 11.02. No Waiver. No failure or delay by any Agent or any Bank 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. The rights and remedies provided in the Financing
Documents shall be cumulative and not exclusive of any rights or remedies
provided by law.
58
Section 11.03. Expenses; Documentary Taxes; Indemnification for
Litigation. (a) The Borrowers shall be jointly and severally obligated to pay
(i) all out-of-pocket expenses of each Agent, including fees and disbursements
of the law firm acting as special counsel for the Banks and the Agents and such
local counsel as may be retained by the Administrative Agent on behalf of the
Banks and the Agents, 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 any Agent or any Bank, including
fees and disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom. The Borrowers shall be jointly and severally obligated to indemnify
each Bank from and hold it harmless against any transfer taxes, documentary
taxes, or other similar assessments or charges made by any governmental
authority by reason of the execution and delivery of the Financing Documents.
(b) The Parent Guarantor and the Borrowers shall be jointly and severally
obligated to indemnify each Bank and hold each Bank 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 Bank in connection with any investigative, administrative or judicial
proceeding, whether or not such Bank shall be designated a party thereto) which
may be incurred by any Bank (or by any Agent in connection with its actions as
Agent hereunder), relating to or arising out of the Financing Documents or any
actual or proposed use of the proceeds of the Credits hereunder, provided that
no Bank 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, each Borrower (or in the case
of the Notes, the relevant Borrower) and the Required Banks (and, if the rights
or duties of either Agent are affected thereby, by such Agent), provided that no
such amendment or waiver shall, unless signed by all the Banks, (i) increase or
decrease the amount of any Commitment (except for a ratable decrease in the
Commitments of all Banks) or subject any Bank 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 or any fees payable hereunder, (iv) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Notes, or
the number of Banks, which shall be required for the Banks 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 or reduction of the Commitments; and provided further that an
amendment or waiver of the payment
59
obligations of a Borrower with respect to any Swingline Advance shall be
effective if, and only if, signed by such Borrower and the Bank making such
Swingline Advance.
In the event that (i) a Bank shall have granted a participation pursuant to
Section 11.07(b); (ii) by virtue of the participation arrangement, such Bank 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 Bank and the other Banks are otherwise prepared to agree to such
proposed amendment; and (v) such Bank shall have so certified to the
Administrative Agent, then, in order to effect and in conjunction with such
amendment, the Borrowers may terminate the Commitment of such Bank and, on a
date otherwise permitted hereunder, prepay the outstanding Credits of such Bank
in their entirety, provided that the Borrowers shall have procured a substitute
Bank (which may be such Bank) contemporaneously to assume the Commitment of such
Bank 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 Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a propor tion of the aggregate amount of principal and interest due with
respect to its Credits which is greater than the proportion received by any
other Bank in respect of the aggregate amount of principal and interest due with
respect to the Credits of such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the
Credits of the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Credits of the Banks shall be shared by the Banks pro rata. Each 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 such Borrower or
the Parent Guarantor, as the case may be, in the amount of such participation.
Each Bank further 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 facility fees due with respect to its Commitments which is greater
than the proportion received by any other Bank in respect of the aggregate
amount of facility fees due with respect to the Commitments of such other Bank,
adjustments shall be made as may be required so that all such payments of
facility fees with respect to the Commitments of the Banks shall be shared by
the Banks pro rata.
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
60
respective successors and assigns, except that neither the Parent Guarantor nor
the Borrowers may assign or transfer any of its rights or obligations under this
Agreement without the consent of all Banks.
(b) No Bank may assign (other than (x) to Persons affiliated with such
Bank or (y) by granting participations) such Bank's rights or obligations
hereunder without the consent of each Borrower, which shall not be unreasonably
withheld, and no Bank may grant participations (other than to Persons affiliated
with such Bank) with respect to amounts exceeding 80% of such Bank's Commitment;
provided that nothing herein shall be deemed to prohibit (i) the granting of
participations by any Bank in its rights with respect to any particular Credit
or Credits or (ii) the assignment or pledge by any Bank of its Notes and its
rights hereunder with respect thereto to any Federal Reserve Bank. Any
agreement pursuant to which any Bank may grant a participation shall provide
that such Bank shall retain the sole right and responsibility to enforce the
obligations of the Borrowers relating to any Credit or Credits including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that (i) any such participation
agreement with respect to any or all of a Bank's Credit or Credits may provide
that such Bank will not agree to any proposed modification, amendment or waiver
of this Agreement without the consent of the participant which would reduce the
principal of or rate of interest on such Credit or Credits or postpone the date
fixed for any payment of principal of or interest on such Credit or Credits and
(ii) any such participation agreement with respect to a portion of a Bank's
Commitment may provide that such Bank will not agree to any modification,
amendment or waiver described in clause (i), (ii) or (iii) of the first sentence
of Section 11.04 without the consent of the participant; provided further that
any such participation agreement described in the preceding clause (ii) shall
further provide that such Bank may agree to any proposed modification, amendment
or waiver referred to in such clause (ii) without the consent of such
participant if such participant fails to provide such Bank voting instructions
with respect to such proposal within 30 days after such participant's receipt of
such proposal and such Bank's request for such voting instructions. Any Bank
that has granted or grants a participation with respect to a portion of its
Commitment shall notify the Borrowers as to the amount of its Commitment subject
to such participation and the identity of the participant. Each of the Agents
and each Borrower may, for all purposes of this Agreement, treat any Bank as the
holder of any Note drawn to its order until written notice of an assignment in
accordance with this Section 11.07(b) is received by it.
(c) No assignee of any Bank's rights or obligations shall be entitled to
receive any greater payment under Section 8.03 than such Bank would have been
entitled to receive with respect to the rights assigned, unless such assignment
(or change in Lending Office) is made with the Borrowers' prior written consent
or by reason of the provisions of Section 8.02 or 8.03 requiring such Bank to
designate a different Lending Office under
61
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
Section 11.08. Collateral. Each Bank (the "REPRESENTING BANK") represents
to each Agent and each other Bank that the Representing Bank 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. 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.
Section 11.10. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE AGENTS AND
THE BANKS 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.
62
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 /s/ ▇.▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Treasurer
ARAMARK Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
ARAMARK UNIFORM SERVICES GROUP,
INC.
By /s/ ▇.▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Treasurer
ARAMARK Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
ARAMARK CORPORATION
By /s/ ▇.▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Senior Vice President, Finance
and Treasurer
ARAMARK Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
63
Commitments
-----------
Agents
------
$106,000,000 THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Vice President
$106,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Vice President
Co-Agents
---------
$81,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Managing Director
$81,000,000 CORESTATES BANK, N.A.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Senior Vice President
$81,000,000 CREDIT LYONNAIS
NEW YORK BRANCH
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
$81,000,000 FIRST UNION NATIONAL BANK
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Title: Vice President
$81,000,000 NATIONSBANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------
Title: Vice President
$81,000,000 PNC BANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President & Senior Relationship
Manager
$81,000,000 THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Vice President
$81,000,000 THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Title: Joint General Manager
$81,000,000 WACHOVIA BANK, N.A.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Vice President
Participants
------------
$30,000,000 BANK OF HAWAII
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
$25,000,000 THE BANK OF NOVA SCOTIA
By /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Title: Authorized Signatory
$25,000,000 BANK ONE, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
$30,000,000 BANKBOSTON, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
$25,000,000 BHF-BANK AKTIENGESELLSCHAFT
By /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Title: Assistant Vice President
$40,000,000 CIBC INC.
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Title: Executive Director
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp., as Agent
$25,000,000 COMERICA BANK
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Vice President
$40,000,000 FLEET NATIONAL BANK
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
$40,000,000 KREDIETBANK N.V.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Vice President
$40,000,000 MELLON BANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Title: Vice President
$30,000,000 NATIONAL WESTMINSTER BANK PLC
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Corporate Manager
$25,000,000 COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
By /s/ W. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Vice President
$54,000,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Title: Deputy General Manager
$30,000,000 U.S. BANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Vice President
Total Commitments
$1,400,000,000
THE CHASE MANHATTAN BANK, as Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telex: 129100
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Vice President
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telex: 177615
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
NOTE
New York, New York
____________, 19__
For value received, [ARAMARK Services, Inc./ARAMARK Uniform Services Group,
Inc.], a Delaware corporation (the "BORROWER"), promises to pay to the order of
(the "BANK"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Credit provided by the Bank to the Borrower pursuant to
the Credit Agreement referred to below on the last day of the Interest Period
relating to such Credit. The Borrower promises to pay interest on the unpaid
principal amount of each such Credit on the dates and at the rate or rates
provided for in the Credit 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 The Chase Manhattan Bank, ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Credits provided by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Credit then outstanding may be endorsed by the Bank 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 Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This note is one of the Notes referred to in the Credit and Guaranty
Agreement dated as of January 7, 1998 among the Borrower, [ARAMARK Uniform
Services Group, Inc./ARAMARK Services, Inc.], a Delaware corporation, ARAMARK
Corporation, a Delaware corporation, the banks party thereto and The Chase
Manhattan Bank and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agents (as the
same may be amended from time to time, the "CREDIT AGREEMENT"). Terms defined
in the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
[ARAMARK SERVICES, INC./
ARAMARK UNIFORM SERVICES
GROUP, INC.]
By __________________________
Name:
Title:
A-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
AMOUNT TYPE AMOUNT OF
OF OF PRINCIPAL MATURITY NOTATION
DATE LOAN LOAN REPAID DATE MADE BY
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A-3
EXHIBIT B
OPINION OF GENERAL COUNSEL OR ASSOCIATE GENERAL COUNSEL
OF ARAMARK SERVICES, ARAMARK UNIFORM
AND THE PARENT GUARANTOR
[Effective Date]
To the Banks and the Agents
c/o The Chase Manhattan Bank, as
Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
I am General Counsel of ARAMARK Services, Inc. ( "ARAMARK SERVICES"), of
ARAMARK Uniform Services Group, Inc. ("ARAMARK UNIFORM" and together with
ARAMARK Services, the "BORROWERS"), and of ARAMARK Corporation (the "PARENT
GUARANTOR") and am familiar with (i) the Credit and Guaranty Agreement (the
"CREDIT AGREEMENT") dated as of January 7, 1998 among the Borrowers, the Parent
Guarantor, the banks party thereto and The Chase Manhattan Bank and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Agents, and (ii) the Subsidiary Guaranty
Agreement. Terms defined in the Credit 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 Banks and the
Agents have all requisite power and authority and have taken all necessary
corporate action to enter into the Credit 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 Borrowers 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.
Upon the basis of the foregoing, I am of the opinion that:
1. Each 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 Credit Agreement by
each Borrower and the Parent Guarantor, (b) of the Notes by the relevant
Borrower and (c) of the Subsidiary Guaranty Agreement by the Parent Guarantor,
each 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 Borrowers 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 Credit Agreement constitutes a valid and binding agreement of each
Borrower and the Parent Guarantor, and the Notes constitute valid and binding
obligations of the relevant 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 each Borrower, the Parent Guarantor and each Subsidiary of the
B-2
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, either
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 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 Borrowers) 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 Bank is located which limits
the rate of interest that such Bank may charge or collect.
Very truly yours,
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, SPECIAL COUNSEL
FOR THE AGENTS
[Effective Date]
To the Banks and the Agents
c/o The Chase Manhattan Bank,
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have participated in the preparation of the Credit and Guaranty
Agreement (the "CREDIT AGREEMENT") dated as of January 7, 1998 among ARAMARK
Services Inc., a Delaware corporation ("ARAMARK SERVICES"), ARAMARK Uniform
Services Group, Inc., a Delaware corporation ("ARAMARK UNIFORM" and together
with ARAMARK Services, the "BORROWERS"), ARAMARK Corporation, a Delaware
corporation (the "PARENT GUARANTOR"), the banks party thereto (the "BANKS") and
The Chase Manhattan Bank and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Agents (the "AGENTS"), and have acted as special counsel for the Agents for the
purpose of rendering this opinion pursuant to Section 3.01(g) of the Credit
Agreement. Terms defined in the Credit 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 each Borrower and the Parent
Guarantor of the Credit Agreement and by the relevant Borrower of the
Notes are within the respective corporate powers of the Parent Guarantor and
each Borrower and have been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of each
Borrower and the Parent Guarantor, and each Note constitutes a valid and binding
obligation of the relevant 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.
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 Bank is located which limits the rate of interest that such Bank 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,
C-2
EXHIBIT D
SUBSIDIARY GUARANTY AGREEMENT
dated as of
January 7, 1998
among
ARAMARK SERVICES, INC.,
ARAMARK UNIFORM SERVICES GROUP, INC.,
ARAMARK CORPORATION
and
THE SUBSIDIARY GUARANTORS REFERRED TO HEREIN
TABLE OF CONTENTS
-----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions...................................................................................1
SECTION 1.02. Accounting Terms and Determinations..........................................................16
SECTION 1.03. Types of Borrowings..........................................................................16
ARTICLE 2
THE LOANS
SECTION 2.01. Commitments to Lend..........................................................................17
SECTION 2.02. Notice of Committed Borrowings...............................................................17
SECTION 2.03. Money Market Borrowings......................................................................18
SECTION 2.04. Swingline Advances...........................................................................21
SECTION 2.05. Notice to Banks; Funding of Loans............................................................21
SECTION 2.06. Maturity of Loans............................................................................22
SECTION 2.07. Notes........................................................................................22
SECTION 2.08. Interest.....................................................................................23
SECTION 2.09. Facility Fees................................................................................28
SECTION 2.10. Reduction of Commitments.....................................................................29
SECTION 2.11. Mandatory Termination of Commitments.........................................................31
SECTION 2.12. Optional Prepayments.........................................................................31
SECTION 2.13. Payments.....................................................................................31
SECTION 2.14. Funding Losses...............................................................................32
SECTION 2.15. Withholding Tax Exemption....................................................................32
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness................................................................................33
SECTION 3.02. Conditions to Borrowing......................................................................35
SECTION 3.03. Representation by Borrower...................................................................35
SECTION 3.04. Transitional Provisions......................................................................35
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power................................................................36
PAGE
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention.....................................................................................36
SECTION 4.03. Binding Effect...............................................................................37
SECTION 4.04. Financial Information........................................................................37
SECTION 4.05. Litigation...................................................................................37
SECTION 4.06. Compliance with ERISA........................................................................37
SECTION 4.07. Environmental Matters........................................................................38
SECTION 4.08. Taxes........................................................................................38
SECTION 4.09. Compliance with Laws.........................................................................38
SECTION 4.10. Not an Investment Company....................................................................39
SECTION 4.11. Full Disclosure..............................................................................39
ARTICLE 5
COVENANTS
SECTION 5.01. Information..................................................................................39
SECTION 5.02. Payment of Obligations.......................................................................42
SECTION 5.03. Maintenance of Property; Insurance...........................................................42
SECTION 5.04. Conduct of Business and Maintenance of Existence.............................................42
SECTION 5.05. Inspection of Property, Books and Records....................................................43
SECTION 5.06. Maintenance of Stock of Borrowers............................................................43
SECTION 5.07. Negative Pledge..............................................................................43
SECTION 5.08. Consolidations, Mergers and Sales of Assets..................................................44
SECTION 5.09. Fixed Charge Coverage........................................................................45
SECTION 5.10. Debt Coverage................................................................................45
SECTION 5.11. Minimum Consolidated Net Worth...............................................................45
SECTION 5.12. Transactions with Affiliates.................................................................45
SECTION 5.13. Use of Proceeds..............................................................................45
SECTION 5.14. Restricted Payments..........................................................................46
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default............................................................................46
SECTION 6.02. Notice of Default............................................................................49
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization................................................................49
SECTION 7.02. Agents and Affiliates........................................................................49
D-ii
PAGE
SECTION 7.03. Action by Agents.............................................................................49
SECTION 7.04. Consultation with Experts....................................................................50
SECTION 7.05. Liability of Agents..........................................................................50
SECTION 7.06. Indemnification..............................................................................50
SECTION 7.07. Credit Decision..............................................................................50
SECTION 7.08. Agency Fees..................................................................................51
SECTION 7.09. Successor Agents.............................................................................51
SECTION 7.10. Co-Agents....................................................................................51
ARTICLE 8
CHANGES IN CIRCUMSTANCES AFFECTING FIXED RATE LOANS
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.....................................51
SECTION 8.02. Illegality...................................................................................52
SECTION 8.03. Increased Cost...............................................................................52
SECTION 8.04. Base Rate Loans Substituted for Affected Loans...............................................54
ARTICLE 9
GUARANTEE
SECTION 9.01. The Guarantee................................................................................55
SECTION 9.02. Guarantee Unconditional......................................................................55
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement in
Certain Circumstances.............................................................................56
SECTION 9.04. Waiver.......................................................................................57
SECTION 9.05. Subrogation and Contribution.................................................................57
SECTION 9.06. Stay of Acceleration.........................................................................57
ARTICLE 10
JUDICIAL PROCEEDINGS
SECTION 10.01. Consent to Jurisdiction.....................................................................57
SECTION 10.02. Enforcement of Judgments....................................................................57
SECTION 10.03. Service of Process..........................................................................58
SECTION 10.04. No Limitation on Service or Suit............................................................58
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices.....................................................................................58
SECTION 11.02. No Waiver...................................................................................58
D-iii
SECTION 11.03. Expenses; Documentary Taxes; Indemnification for
Litigation........................................................................................59
SECTION 11.04. Amendments and Waivers......................................................................59
SECTION 11.05. Sharing of Set-offs.........................................................................60
SECTION 11.06. New York Law................................................................................60
SECTION 11.07. Successors and Assigns......................................................................60
SECTION 11.08. Collateral..................................................................................62
SECTION 11.09. Counterparts................................................................................62
SECTION 11.10. WAIVER OF JURY TRIAL........................................................................62
SUBSIDIARY GUARANTY AGREEMENT
AGREEMENT dated as of January 7, 1998 among ARAMARK Services, Inc., a
Delaware corporation ("ARAMARK SERVICES"), ARAMARK Uniform Services Group, Inc.,
a Delaware corporation ("ARAMARK UNIFORM" and together with ARAMARK Services,
the "BORROWERS"), 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 Borrowers and the Parent Guarantor have entered into a Credit
and Guaranty Agreement (as the same may be amended from time to time, the
"CREDIT AGREEMENT") dated as of January 7, 1998 among the Borrowers, the Parent
Guarantor, the banks party thereto and The Chase Manhattan Bank and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Agents, pursuant to which the Borrowers
are entitled, subject to certain conditions, to jointly borrow up to
$1,400,000,000 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 Credit 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 Banks, 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 a Borrower under the Credit Agreement; and
WHEREAS, ARAMARK Services has in the past and the Borrowers may in the
future become obligated to one or more of said banks under one or more Interest
Rate Agreements;
WHEREAS, in conjunction with the transactions contemplated by the Credit
Agreement and in consideration of the financial and other support that the
Borrowers have provided, and such financial and other support as the Borrowers
and the Parent Guarantor may in the future provide, to the Subsidiary
Guarantors, and in order to induce the Banks to enter into the Credit Agreement
and any Interest Rate Agreements, the Subsidiary Guarantors are willing to
guarantee the obligations of the Borrowers thereunder;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
ARTICLE 2
Guarantees
Section 2.01. Guarantees. Subject to Section 2.03, the Subsidiary
Guarantors hereby jointly, severally, unconditionally and irrevocably guarantee
to the Banks, and to each of them, the due and punctual payment of all present
and future indebtedness of the Borrowers evidenced by or arising out of the
Financing Documents and any Interest Rate Agreements, 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 each
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 and the due and punctual payment of any Interest Rate
Indebtedness. In case of failure by a 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
such Borrower.
Section 2.02. Guarantees Unconditional. The obligations of each Subsidiary
Guarantor under this Article II 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 or any Interest Rate Agreement, by operation of law
or otherwise;
(b) any modification or amendment of or supplement to any
Financing Document or any Interest Rate Agreement;
(c) any modification, amendment, waiver, release, non-perfection
or invalidity of any direct or indirect security, or of any
D-2
guarantee or other liability of any third party, for any obligation of
any other Obligor under any Financing Document or any Interest Rate
Agreement;
(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 or any Interest Rate
Agreement;
(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 Bank or any other Person, whether or not
arising in connection with the Financing Documents or any Interest Rate
Agreement, 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 Interest
Rate Agreement, 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 any other
Obligor under the Financing Documents or any Interest Rate Agreement; or
(g) any other act or omission to act or delay of any kind by any
other Obligor, the Administrative Agent, any Bank 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 the
obligations of any Subsidiary Guarantor under this Article II.
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 II shall remain in full force and
effect, except as otherwise agreed with the consent of the Required Banks, until
the Commitments are terminated and the principal of and interest on the Notes
and all other amounts payable by the Borrowers under the Financing Documents
shall have been paid in full. If at any time any payment of the principal of or
interest
D-3
on any Note or any other amount payable by a 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 II 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
and any Interest Rate Agreement have 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 a Borrower with respect to such payment or otherwise to be reimbursed,
indemnified or exonerated by such 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 a Borrower under the Financing Documents is
stayed upon the insolvency, bankruptcy or reorganization of such 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 Banks specified in the Financing Documents.
D-4
ARTICLE 3
Covenant of the Company and the Parent Guarantor
Section 3.01. Additional Subsidiary Guarantors. The Parent Guarantor and
each 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. 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 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 Bank 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 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, each Borrower, each
D-5
Subsidiary Guarantor and the Administrative Agent with the prior written consent
of the Required Banks.
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 X and Section
11.10 of the Credit Agreement to the same extent as if it were a party thereto.
Section 4.05. 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 4.06. Counterpars; 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 each 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.
D-6
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
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
ARAMARK UNIFORM SERVICES GROUP,
INC.
By:
-------------------------------------
Title:
ARAMARK Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
ARAMARK CORPORATION
By:
-------------------------------------
Title:
ARAMARK Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
D-7
SUBSIDIARY GUARANTORS
---------------------
ARAMARK EDUCATIONAL GROUP, INC.
By:
-------------------------------------
Title:
ARAMARK HEALTH & EDUCATION
SERVICES, INC.
By:
-------------------------------------
Title:
ARAMARK HEALTHCARE SUPPORT
SERVICES, INC.
By: ____________________________________
Title:
ARAMARK SPORTS AND ENTERTAINMENT
GROUP, INC.
By: _____________________________________
Title:
ARAMARK MAGAZINE & BOOK
SERVICES, INC.
By _____________________________________
Title:
ARAMARK REFRESHMENT SERVICES, INC.
By: _____________________________________
Title:
D-8
ARAMARK SENIOR NOTES COMPANY
By: _____________________________________
Title:
ARAMARK SERVICES, INC.
By: _____________________________________
Title:
ARAMARK UNIFORM SERVICES, INC.
By: _____________________________________
Title:
ARAMARK UNIFORM SERVICES
GROUP, INC.
By: _____________________________________
Title:
D-9
Schedule
SUBSIDIARY GUARANTORS
ARAMARK EDUCATIONAL GROUP, INC.
ARAMARK HEALTH & EDUCATION SERVICES, INC.
ARAMARK HEALTHCARE SUPPORT SERVICES, INC.
ARAMARK SPORTS AND ENTERTAINMENT GROUP, INC.
ARAMARK MAGAZINE & BOOK SERVICES, INC.
ARAMARK REFRESHMENT SERVICES, INC.
ARAMARK SENIOR NOTES COMPANY
ARAMARK SERVICES, INC.
ARAMARK UNIFORM SERVICES, INC.
ARAMARK UNIFORM SERVICES GROUP, INC.
D-10
EXHIBIT E
MANAGEMENT EQUITY NOTE
[To be provided by Borrower]
EXHIBIT F
FORM OF INVITATION FOR MONEY MARKET QUOTES
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [ARAMARK Services, Inc./ARAMARK
Uniform Services Group, Inc.] (the "BORROWER")
Pursuant to Section 2.03 of the Credit and Guaranty Agreement (as amended
from time to time, the "CREDIT AGREEMENT") dated as of January 7, 1998 among the
Borrower, [ARAMARK Uniform Services Group, Inc./ARAMARK Services, Inc.], ARAMARK
Corporation, the Banks party thereto and The Chase Manhattan Bank and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Agents, we are pleased to invite you to
submit Money Market Quotes to us for the following proposed Money Market
Borrowing(s):
Date of Borrowing: ___________________
Principal Amount/1/ Interest Period/2/
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market Rate.
Please respond to this invitation by no later than 10:00 A.M. (New York
City time) on [date].
Terms used herein have the meanings assigned to them in the Credit
Agreement.
[ARAMARK SERVICES, INC./ARAMARK
UNIFORM SERVICES GROUP, INC.]
By___________________________________
Title:
---------------
/1/ Amount must be $5,000,000 or a larger multiple of $1,000,000.
/2/ Not less than 7 nor more than 270 days, subject to the provisions of
the definition of Interest Period.
EXHIBIT G
FORM OF MONEY MARKET QUOTE
[ARAMARK SERVICES, INC./
ARAMARK UNIFORM SERVICES
GROUP, INC.]
ARAMARK Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Money Market Quote to [ARAMARK Services, Inc./ARAMARK Uniform Services
Group, Inc.] (the "BORROWER")
In response to your invitation dated _____________, 19__, we hereby make
the following Money Market Quote on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank
(including telephone number):
3. Date of Borrowing:
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
G-1
Principal Interest Money Market
Amount/1/ Period/2/ Rate/3/
--------------------------------------------------------------------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed $__________.]*
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit
and Guaranty Agreement dated as of January 7, 1998 among the Borrower,
[ARAMARK Uniform Services Group, Inc./ARAMARK Services, Inc.], ARAMARK
Corporation, the Banks party thereto and The Chase Manhattan Bank and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agents (as amended from
time to time, the "CREDIT AGREEMENT"), irrevocably obligates us to make
the Money Market Loan(s) for which any offer(s) are accepted, in whole
or in part.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
Very truly yours,
[NAME OF BANK]
Dated:_________________ By:__________________________
Authorized Officer
---------------
/1/ Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Bank is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
/2/ Not less than 7 nor more than 270 days, as specified in the related
Invitation. No more than five bids are permitted for each Interest Period.
/3/ Specify rate of interest per annum (specified to 1/10,000th of 1%).