EXHIBIT 99.D
SECURED DEMAND NOTE - LINE OF CREDIT XX Xxxxxx
------------------------------------
Date: September 25, 2001
FOR VALUE RECEIVED, the undersigned (the "Borrower") promises to pay to the
--------
order of XXXXXX GUARANTY TRUST COMPANY OF NEW YORK (the "Bank") ON DEMAND at its
----
office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, X.X.X., for the account
of its Lending Office (as hereinafter defined), in lawful money of the United
States of America in same day funds, the lesser of (i) U.S. $20,000,000 or (ii)
- --
the then-outstanding principal amount of each loan (the "Loan" or "Loans") made
---- -----
by the Bank from time to time to the Borrower hereunder. The Borrower shall pay
interest on the unpaid principal amount of each Loan until maturity on the dates
and at a rate per annum as hereinafter set forth. As used herein, "Lending
-------
Office" means the office of the Bank located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
------
Xxxx or such other office as the Bank may designate.
Interest shall be computed on the basis of a year of 365 days (or 366 days
in a leap year) and paid for actual days elapsed (including the first day but
excluding the last day) and shall be payable on the last day of each month at a
rate per annum for each day equal to the rate of interest publicly announced by
the Bank in New York City from time to time as its Prime Rate (the "Prime Rate")
----------
for such day plus the Lending Margin (as hereinafter defined).
----
"Lending Margin" means minus 1.20% per annum, provided that such rate may
-------------- -----
be changed from time to time by the Bank in its sole discretion, with any change
in such rate to become effective 10 days after the Bank shall have sent written
notice of such change to the Borrower at its address set forth beneath the
Borrower's signature below or such other address as the Borrower may furnish to
the Bank in writing for such purpose.
The Borrower shall pay interest on the unpaid principal amount of each Loan
after the maturity thereof and, to the extent permitted by law, on accrued and
unpaid interest until paid at a rate per annum equal to the sum of 2% plus the
sum of the Prime Rate and the Lending Margin.
Loans may be prepaid at any time without penalty or premium.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The non-exercise by the Bank of its rights
hereunder in any particular instance shall not constitute a waiver of any right
in any subsequent instance.
The holder of this Note may, and is hereby authorized by the Borrower to,
endorse on the schedule forming a part hereof appropriate notations evidencing
the date
and the amount of each Loan made by the Bank and the date and amount of each
payment of principal; provided that the failure of the Bank to make any such
endorsement shall not affect the obligations of the Borrower hereunder.
As collateral security for the performance of the obligations of the
Borrower hereunder (collectively, the "Secured Obligations"), the Borrower
-------------------
hereby pledges and assigns to the Bank, and grants to the Bank a valid first-
priority security interest in shares of ARAMARK Corporation in such amount as
shall be required pursuant to the following paragraph and as shall now and
hereafter maintained on deposit by the Borrower in account no. 00000000 at the
Bank, all other assets deposited in such account in substitution for or to
supplement such shares upon the request or of consent of the Bank pursuant to
the following paragraph, all security entitlements in respect thereof and all
proceeds and products thereof and dividends and distributions thereon (whether
in cash, additional securities or otherwise) (collectively, the "Collateral").
----------
The Bank shall have full control of the Collateral and any transfer affecting
the Collateral is subject to its approval. The Borrower may substitute
Collateral upon the consent of the Bank.
The Borrower shall at all times maintain on deposit in the account referred
to in the preceding paragraph Collateral having a value at least equal to 250%
of the aggregate principal amount of Secured Obligations outstanding (as
determined by the Bank). The Borrower agrees that if at any time the value of
the Collateral shall be less than such amount, the Borrower shall deposit with
the Bank such additional property as may be requested by the Bank. If the
Borrower does not deposit such additional property within three days after such
request by the Bank, the Borrower agrees that the Bank may sell the Collateral
and retain the proceeds as security for the performance of the Secured
Obligations.
The Borrower will faithfully preserve and protect the Bank's security
interest in the Collateral, will defend the Bank's right, title, lien and
security interest in and to the Collateral against the claims and demands of all
persons whomsoever, and will do all such acts and things and execute and deliver
all such documents and instruments, including without limitation further
pledges, assignments, financing statements and continuation statements, as the
Bank in its sole discretion may reasonably deem necessary or advisable from time
to time in order to preserve, protect and perfect such security interest or to
enable the Bank to exercise or enforce its rights under this Agreement with
respect to any Collateral. The Borrower hereby authorizes the Bank to sign and
file financing and continuation statements and Securities and Exchange
Commission Form 144's (or similar or replacement forms), without the signature
of the Borrower.
The Borrower will not permit any liens other than the lien created hereby
in favor of the Bank and other liens in favor of the Bank and its affiliates
consented to by the Bank to exist upon any of the Collateral.
2
The Borrower will not take any action that could in any way limit or
adversely affect the ability of the Bank to realize upon its rights in the
Collateral. In the event that any of the Secured Obligations shall be in
default, the Bank shall be entitled to exercise all voting powers with respect
to the Collateral.
Following a default with regard to the Secured Obligations the Bank may
cause all or any of the Collateral to be transferred to or registered in its
name or the name of its nominee or nominees and to have security entitlements in
respect thereof credited to its or its nominee's securities account with any
securities intermediary.
If any of the Secured Obligations shall not be performed forthwith when due
in accordance with their terms, the Bank, without obligation to resort to other
security, shall have the right at any time and from time to time to sell,
resell, assign and deliver, in its discretion, all or any of the Collateral, in
one or more parcels at the same or different times, and all right, title and
interest, claim and demand therein and right of redemption thereof, on any
securities exchange on which the Collateral or any of it may be listed, or at
public or private sale, for cash, upon credit or for future delivery, and in
connection therewith the Bank may grant options, the Borrower hereby waiving and
releasing any and all equity or right of redemption to the fullest extent
permitted by law. If any of the Collateral is sold by the Bank upon credit or
for future delivery, the Bank shall not be liable for the failure of the
purchaser to purchase or pay for the same and, in the event of any such failure,
the Bank may resell such Collateral. In no event shall the Borrower be credited
with any part of the proceeds of sale of any Collateral until cash payment
thereof has actually been received by the Bank. In addition, should any portion
of the Collateral consist of a time deposit or deposits with a financial
institution (including the Bank), the Bank may terminate such deposit or
deposits prior to the maturity thereof and any penalties payable in connection
therewith shall be for the sole account of the Borrower.
The Borrower acknowledges and agrees that the securities forming a part of
the Collateral may decline speedily in value and are of a type customarily sold
on a recognized market, and, accordingly, no demand, advertisement or notice,
all of which are hereby expressly waived, with the exception of such notices as
shall be required pursuant to Section 4 of the Amended and Restated
Stockholders' Agreement dated as of the 14/th/ day of December, 1994, by and
among ARAMARK Corporation and certain classes of investors specified therein
(the "Stockholders' Agreement"), shall be required in connection with any sale
-----------------------
or other disposition of any such securities, or any other part of the Collateral
which may decline speedily in value or which is of a type customarily sold on a
recognized market, except any notice that is required under applicable law and
cannot be waived. With respect to any other type of Collateral, the Bank shall
give the Borrower at least five business days' prior notice of the time and
place of any public sale and of the time after which any private sale or other
disposition is to be made, which notice the Borrower agrees is reasonable, all
other demands, advertisements and notices being hereby waived. The Bank shall
not be obligated to make any sale of Collateral if it
3
shall determine not to do so, regardless of the fact that notice of sale may
have been given. The Bank may, without notice or publication, adjourn any public
or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In the case of all sales of Collateral, public or private, the
Borrower shall pay all costs and expenses of every kind for sale or delivery,
including brokers' and attorneys' fees and all liabilities and advances made or
incurred by the Bank in connection with each sale or delivery, and after
deducting such costs and expenses from the proceeds of sale, the Bank shall
apply any residue, first, to the payment of the costs and expenses, including
legal fees, incurred by the Bank in connection with the administration and
enforcement of the Secured Obligations and any amounts due to the Bank in
respect of the Secured Obligations other than principal or interest, second, to
the payment of interest owed with regard to the Secured Obligations, and third,
to the payment of principal owed with regard to the Secured Obligations. The
balance, if any, remaining after payment in full of all such amounts shall be
paid to or on the order of the Borrower, subject to any duty of the Bank imposed
by law to the holder of any subordinate security interest in the Collateral
known to the Bank.
The Borrower recognizes that the Bank may be unable to effect a public sale
of all or a part of the Collateral by reason of certain prohibitions contained
in the Securities Act, as amended, as now or hereafter in effect, or in
applicable Blue Sky or other state securities laws, as now or hereafter in
effect, but may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obliged to agree, among other things,
to acquire such Collateral for their own account, for investment and not with a
view to the distribution or resale thereof. The Borrower agrees that private
sales so made may be at prices and other terms less favorable to the seller than
if such Collateral were sold at public sales, and that the Bank has no
obligation to delay sale of any such Collateral for the period of time necessary
to permit the issuer of such Collateral, even if such issuer would agree, to
register such Collateral for public sale under such applicable securities laws.
The Bank agrees that any sale of the ARAMARK Corporation shares held as
Collateral will be conducted in compliance with the provisions of Sections 3, 4,
5, 6 and 7 of the Stockholders Agreement. The Borrower agrees that private sales
made under the foregoing circumstances shall be deemed to have been made in a
commercially reasonable manner.
The Bank shall have the right, for and in the name, place and stead of the
Borrower, to execute endorsements, assignments or other instruments of
conveyance or transfer with respect to all or any of the Collateral.
The Bank shall have no duty as to the collection or protection of the
Collateral or any income thereon or as to the preservation of any rights
pertaining thereto, beyond the safe custody of any thereof actually in its
possession. With respect to any maturities, calls, conversions, exchanges,
redemptions, offers, tenders or similar matters relating to
4
any of the Collateral (herein called "events") occurring prior to a default by
------
the Borrower in respect of any of the Secured Obligations, the Bank's duty shall
be fully satisfied if (i) the Bank exercises reasonable care to ascertain the
-
occurrence, and to give reasonable notice to the Borrower, of any events
applicable to any such securities included in the Collateral which are
registered and held in the name of the Bank or its nominee or any security
entitlements included in the Collateral as to which the Bank is the entitlement
holder, (ii) the Bank gives the Borrower reasonable notice of the occurrence of
--
any events, of which the Bank has received actual knowledge, as to any such
securities which are in bearer form or are not registered and held in the name
of the Bank or its nominee (the Borrower agreeing to give the Bank reasonable
notice of the occurrence of any events applicable to any securities in the
possession of the Bank of which the Borrower has received knowledge), and (iii)
---
subject to the exercise of its sole discretion (a) the Bank endeavors to take
-
such action with respect to any of the events as the Borrower may reasonably and
specifically request in writing in sufficient time for such action to be
evaluated and taken or (b) if the Bank determines that the action requested
-
might adversely affect the value of the Collateral as collateral, the collection
of the Secured Obligations, or otherwise prejudice the interests of the Bank,
the Bank gives reasonable notice to the Borrower that any such requested action
will not be taken, and if the Bank makes such determination or if the Borrower
fails to make such timely request, the Bank takes such other action as it deems
advisable in the circumstances. Except as hereinabove specifically set forth,
and at any time following a default by the Borrower in respect of any of the
Secured Obligations, the Bank shall have no further obligation to ascertain the
occurrence of, or to notify the Borrower with respect to, any events and shall
not be deemed to assume any such further obligation as a result of the
establishment by the Bank of any internal procedures with respect to any
securities in its possession or any security entitlements as to which it is the
entitlement holder. The Borrower releases the Bank from any claims, causes of
action and demands at any time arising out of or with respect to this Note or
the Collateral and/or any actions, taken or omitted to be taken by the Bank with
respect thereto, and the Borrower hereby agrees to hold the Bank harmless from
and with respect to any and all such claims, causes of action and demands.
The Borrower hereby irrevocably appoints the Bank as the Borrower's
attorney-in-fact for the purpose of carrying out the provisions of this Note and
taking any action and executing any instrument which either may deem necessary
or advisable to accomplish the purposes hereof. Without limiting the generality
of the foregoing, the Bank shall have the right and power to receive, endorse
and collect all checks and other orders for the payment of money made payable to
the Borrower representing any interest or dividend or other distribution payable
in respect of the Collateral or any part thereof and to give full discharge for
the same. This power of attorney shall be coupled with an interest and shall
survive the death or disability of the Borrower.
The remedies provided herein in favor of the Bank shall not be deemed
exclusive, but shall be cumulative, and shall be in addition to all other
remedies in favor of the Bank
5
existing at law or in equity. No delay on the part of the Bank in exercising any
of its options, powers or rights, or partial or single exercise thereof, shall
constitute a waiver thereof. The pledge of the Collateral hereby shall not in
any way preclude or restrict any recourse by the Bank against the Borrower or
any other person or entity liable with regard to the Secured Obligations or any
other collateral therefor.
Upon the repayment in full of all principal, interest and other amounts
that may be payable with regard to the Secured Obligations, the Borrower shall
be entitled to the return of all of the Collateral and of all other property and
cash which have not been used or applied toward the payment of such principal,
interest and other amounts free and clear of all liens in favor of the Bank or
any encumbrances imposed by the Bank. Except as aforesaid, the assignment by
the Bank to the Borrower of such Collateral and other property shall be without
representation or warranty of any nature whatsoever and wholly without recourse.
Any waiver, permit, consent or approval of any kind or character on the
part of the Bank of any breach or default under this Note or any such waiver of
any provision or condition of this Note must be in writing and shall be
effective only to the extent specifically set forth in such writing.
Any communication, demand or notice to be given under this Note shall be
(i) delivered in person, (ii) sent via a courier service guaranteeing overnight
- --
delivery, (iii) sent via electronic facsimile or (iv) mailed by registered or
--- --
certified mail (postage prepaid, return receipt requested) to the Borrower at
the address specified below, or to the Borrower at such other address as
Borrower may theretofore have designated in writing and given in like manner to
the Bank. Any notice delivered to a recipient in person as provided in this
paragraph shall be deemed to have been duly given when received by the
recipient. Any notice sent via electronic facsimile as provided in this
paragraph shall be deemed to have been duly given upon acknowledgment of receipt
at the electronic facsimile number specified pursuant to this paragraph. Any
notice sent by registered or certified mail or by a guaranteed overnight
delivery service as provided in this paragraph shall be deemed to have been duly
given upon receipt of written acknowledgment of delivery to the address
specified pursuant to this paragraph.
The Borrower represents and warrants that: (i) this Note has been duly
-
authorized, executed and delivered by the Borrower and constitutes a valid and
legally binding obligation of the Borrower enforceable in accordance with its
terms, (ii) the pledge and delivery of the Collateral pursuant to this Note will
--
create a valid first priority lien on and first priority perfected security
interest in the Collateral securing the payment of the Secured Obligations,
(iii) it has, and will have upon deposit of any additional Collateral with the
---
Bank, title to all of the Collateral, free and clear of all claims, mortgages,
pledges, liens, encumbrances and security interests of every nature whatsoever,
and no consent or approval of any person, entity or governmental or regulatory
authority, or of
6
any securities exchange, was or is necessary to create or perfect this pledge or
in connection with the Loans, (iv) the execution and delivery of this Note by
--
the Borrower and the performance by the Borrower of its obligations hereunder do
not violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other agency of
government applicable to it or any of its assets or any contractual restriction
binding on or affecting it or any of its assets and (v) no Liens other than in
-
favor of the Bank exist upon any of the Collateral.
This Note shall be binding upon the Borrower an its successors, assigns,
heirs and legal representatives and is for the benefit of the Bank and its
successors and assigns, except that the Borrower may not assign or otherwise
transfer its rights or obligations under this Note.
The Bank may at any time sell, assign, transfer, grant participations in,
or otherwise dispose of all or any portion of the Loans or this Note or of its
right, title and interest therein or thereto or in or to this Note and the
Collateral (each a "Participation") to any other lending office or to any other
-------------
entity (a "Participant"). In the event of any such grant by the Bank of a
-----------
participating interest to a Participant, whether or not upon notice to the
Borrower, the Bank shall remain responsible for the performance of its
obligations hereunder, and the Borrower shall continue to deal solely and
directly with the Bank in connection with the Bank's rights and obligations
under this Note. The Borrower agrees that each Participant shall be entitled to
the benefits of this Note to the extent of its Participation as if such
Participant were the Bank.
The Bank may at any time without the consent of the Borrower assign to one
or more entities (each an "Assignee") all, or a proportionate part of all, of
--------
its rights and obligations under this Note, including but not limited to all
rights with regard to the Collateral, and such Assignee shall assume such rights
and obligations pursuant to an assignment and assumption agreement executed by
such Assignee and the Bank.
The Borrower agrees to pay the Bank on demand all costs and expenses,
including reasonable legal fees, incurred by the Bank in connection with the
administration and enforcement of this Note, all of which costs and expenses
shall form part of the Secured Obligations as provided above. The Borrower
shall reimburse the Bank on demand for any transfer taxes, documentary taxes,
assessments or charges that are imposed at any time on or in connection with
this Note and shall indemnify the Bank against liability for any such tax
(including any interest and penalties).
By executing and delivering this Note to the Bank, the Borrower is deemed
to have agreed to be bound by the Terms and Conditions of Advised Line of Credit
and any changes or revisions made thereto pursuant to paragraph 7 thereof.
7
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK. THE BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS NOTE OR ANY
AGREEMENT RECEIVED BY THE BANK IN CONNECTION HEREWITH. THE BORROWER IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH THE BORROWER
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS NOTE OR ANY AGREEMENT RECEIVED BY THE BANK IN CONNECTION
HEREWITH.
Signature: /s/ Xxxxxx Xxxxxxxx
-----------------------
XXXXXX XXXXXXXX
Address:
_________________________________
_________________________________
Electronic Facsimile Number:
_________________________________
8
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Date Amount Amount of Notation
of Loan Principal Repaid Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
Statement of Purpose for an Extension of Credit Secured by Margin Stock
(Federal Reserve Form U-1)
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
--------------------------------------------------------------------------------
Name of Bank
This report is required by law (15 U.S.C. (S) 78g Public reporting burden for
and 78w; 12 CFR 221). this collection of
information is estimated to
The Federal Reserve may not conduct or sponsor, average 0.07 hours per
and an organization (or a person) is not response, including the time
required to respond to, a collection of to gather and maintain data
information unless it displays a currently in the required form and to
valid OMB control number. review instructions and
complete the information
collection. Send comments
regarding this burden
estimated or any other
aspect of this collection of
information, including
suggestions for reducing
this burden to: Secretary,
Board of Governors of the
Federal Reserve System,
20/th/ and C Streets, N.W.,
Washington, DC 20551; and to
the Office of Management and
Budget, Paperwork Reduction
Project (7100-0011),
Washington, DC 20503.
Instructions
1. This form must be completed when a bank extends in excess of $100,000 secured
directly or indirectly, in whole or in part, by any margin stock.
2. The term "margin stock" is defined in Regulation U (12 CFR 221) and includes,
principally: (1) stocks that are registered on a national securities
exchange; (2) debt securities (bonds) that are convertible into margin
stocks; (3) any over-the-counter security designated as qualified for
trading in the National Market System under a designation plan approved by
the Securities and Exchange Commission (NMS security); and (4) shares of
most mutual funds, unless 95 per cent of the assets of the fund are
continuously invested in U.S. government, agency, state, or municipal
obligations.
3. Please print or type (if space is inadequate, attach separate sheet).
Part I To be completed by borrower(s)
4. What is the amount of the credit being extended? $20,000,000
-----------
5. Will any part of this credit be used to purchase or carry margin stock?
[_] Yes [_] No
If the answer is "no," describe the specific purpose of this credit. ___________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
10
I (We) have read this form and certify that to the best of my (our) knowledge
and believe the information given is true, accurate, and complete, and that the
margin stock and any other securities collateralizing this credit are authentic,
genuine, unaltered, and not stolen, forged or counterfeit.
Signed: Signed:
/s/ Xxxxxx Xxxxxxxx
-------------------------------------- __________________________________
Borrower's Signature Date Borrower's Signature Date
Xxxxxx Xxxxxxxx
-------------------------------------- __________________________________
Print or type name Print or type name
This form should not be signed if blank.
A borrower who falsely certifies the purpose of a credit on this form otherwise
willfully or intentionally evades the provisions of Regulation U will also
violate Federal Reserve Regulation X, "Borrowers of Securities Credit."
11
Part II To be completed by bank only if the purpose of the credit is to purchase
or carry margin securities (Part I (2) answered "yes")
1. List the margin stock securing this credit; do not include debt securities
convertible into margin stock. The maximum loan value of margin stock is 50
per cent of its current market value under the current Supplement to
Regulation U.
--------------------------------------------------------------------------------
No. of Issue Market price Date and source Total market
shares per share of valuation value per issue
(see note below)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2. List the debt securities convertible into margin stock securing this credit.
The maximum loan value of such debt securities is 50 per cent of the current
market value under the current Supplement to Regulation U.
--------------------------------------------------------------------------------
Principal Issue Market price Date and source Total market
amount per share of valuation value per issue
(see note below)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3. List other collateral including nonmargin stock securing this credit.
--------------------------------------------------------------------------------
Describe briefly Market price Date and source Total market
per share of valuation value per issue
(see note below)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Note: Bank need not complete "Date and source of valuation" if the market value
was obtained from regularly published information in a journal of general
circulation or an automated quotation system.
Part III To be signed by a bank officer in all instances.
I am a duly authorized representative of the bank and understand that this
credit secured by margin stock may be subject to the credit restrictions of
Regulation U. I have read this form and any attachments, and I have accepted
the customer's statement in Part I in good faith as required by Regulation U*;
and I certify that if any securities that directly secure the credit are not or
will not be registered in the name of the borrower or its nominee, I have or
will cause to have examined the written consent of the registered owner to
pledge such securities. I further certify that any securities that have been or
will be physically delivered to the bank in connection with this credit have
been or will be examined, that all validation procedures required by bank policy
and the Securities Exchange Act of 1934 (section 17(f), as amended) have been or
will be performed, and that I am satisfied to the best of my knowledge and
belief that such securities are genuine and not stolen or forged and their faces
have not been altered.
Signed:
11/13/01 /s/ Xxxxxx X. Xxxxxx
-------- --------------------
Date Bank officer's signature
Vice President Xxxxxx X. Xxxxxx
-------------- ----------------
Title Print or type name
* To accept the customer's statement in good faith, the officer of the bank must
be alert to the circumstances surrounding the credit and, if in possession of
any information that would cause a prudent person to accept the statement
without inquiry, must have investigated and be satisfied that the statement is
truthful. Among the facts which would require such investigation are receipt of
the statement through the mail or from a third party.
This form must be retained by the lender for three years after the credit is
extinguished.
12
September 2001
Mr. Xxxxxx Xxxxxxxx
Chairman and CEO
ARAMARK Corporation
ARAMARK Tower
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Personal and Confidential
-------------------------
Dear Sir:
I am pleased to advise you that Xxxxxx Guaranty Trust Company of New York
("Xxxxxx") has established in your favor a line of credit (the "Line of Credit")
in the amount of $20,000,000.
Borrowings by you from Xxxxxx under the enclosed note (the "Note") that will
evidence your obligations to Xxxxxx with regard to the Line of Credit shall be
subject to the following conditions of borrowing and repayment:
.. Loans ("Loans") under the Line of Credit and optional prepayments shall
each be in a principal amount of at least $25,000.
.. Proceeds of Loans shall be used for the purpose of asset diversification,
charitable contributions and to finance committed investment partnership
capital calls.
So long as the Line of Credit is in existence or you shall be indebted to Xxxxxx
with regard thereto or the Loans:
.. You shall deliver to Xxxxxx (i) copies of your unaudited balance sheet and
income statement in form satisfactory to Xxxxxx within 90 days after the
end of each calendar year or within 90 days after June 30 of any year, (ii)
copies of periodic independent valuations of shares of ARAMARK Corporation
if and when such valuations are received by you, and (iii) such other
information concerning your financial condition as Xxxxxx may from time to
time request; prior to the merger described below, you shall maintain on
deposit at Xxxxxx shares of ARAMARK Corporation Class A or B common stock
("the Shares") or other Collateral (as that term is used in the Note)
acceptable to Xxxxxx having at all times a fair market value of not less
than 250% of the aggregate dollar amount of the Secured Obligations (as
that term is used in the Note). Subject to the provisions below with
respect to the tender offer, if at any time the fair market value of the
Collateral shall be less than such amount, you shall forthwith restore
compliance with such collateralization requirement by either repaying a
portion of
13
the Secured Obligations or delivering to Xxxxxx Collateral acceptable to
Xxxxxx to be held pursuant to the provisions of the Note. At or prior to
the merger, you will execute and deliver to the transfer agent such
instructions as Xxxxxx requests, so that upon the merger and the
cancellation of certificates representing the Shares, Xxxxxx will continue
to hold a perfected security interest in the Shares.
We understand that the shares are currently subject to an Amended and
Restated Stockholder's Agreement ("Stockholders' Agreement") (copy attached
which provides in section 3.02 that a shareholder is entitled to pledge
shares provided that the lender agrees not to dispose of such shares except
in compliance with the provisions of that Agreement.
We understand that ARAMARK Worldwide Corporation has filed documents with
the SEC indicating its intent to offer new Class B common stock to the
public. In connection with the proposed transaction, the stockholders will
be asked to approve a merger agreement and will be asked to consent to the
termination of the current Stockholders' Agreement. In addition,
certificates representing old shares of ARAMARK Corporation will become
void as a result of the merger. If necessary approvals are obtained and
ARAMARK proceeds with the public offering, your Shares will then be subject
to the restrictions contained in a new Amended and Restated Certificate of
Incorporation of ARAMARK Corporation, as well as the restrictions in any
Lock-Up Agreements to which you are a party. Current drafts of the Amended
and Restated Certificate of Incorporation and Lock-up Agreement have been
provided to us. It is understood that those Agreements may further change
(collectively the "Restrictions").
Of course, if the public offering and related transactions do not occur,
the Stockholders' Agreement and the restrictions on transfer of Shares
contained therein will remain in place.
Accordingly, Xxxxxx agrees to comply with the requirements of the
Stockholders' Agreement and the Restrictions and not to dispose of the
Shares except in compliance with the provisions of the Stockholders'
Agreement (while such Agreement is in place) and agrees to comply with and
be bound by the other Restrictions referred to in this letter.
In addition, Xxxxxx agrees to release any shares pledged to Xxxxxx or
subject to a security interest in Xxxxxx'x favor and to take any other
action reasonably necessary to facilitate your tender of all or any portion
of the Shares pursuant to the tender offer described in the Registration
Statement on Form S-1 originally filed with the SEC on July 17, 2001. It
is agreed that the net proceeds after taxes
14
of the tender of any such Shares will be used by Xxxxxx to repay any
indebtedness under the line of credit or the Secured obligations unless
substitute shares of ARAMARK Corporation stock or other Collateral
acceptable to Xxxxxx having a fair market value of not less than 250% of
the aggregate dollar amount of the Secured Obligations then outstanding is
pledged to Xxxxxx or subjected to a security interest in favor of Xxxxxx in
lieu of any pledged Shares sold in the tender offer.
It is agreed that the event of any conflict between the provisions of this
letter agreement and the provisions of the attached Secured Demand Note -
Line of Credit, dated September 25, 2001 from XX Xxxxxx, the provisions of
this letter agreement shall control.
The Line of Credit is an uncommitted credit facility that is subject to Xxxxxx'x
periodic review and the Loans are payable on demand. Xxxxxx'x right to demand
payment is absolute and unconditional and shall not be affected by your
compliance or non-compliance with any covenant or agreement contained in this
letter or otherwise agreed to by you.
Please confirm your agreement with the foregoing by signing in the space
below and returning to me the enclosed copy of this letter.
Very truly yours
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Agreed to:
/s/ Xxxxxx Xxxxxxxx
-------------------
15
