Exhibit 1.1
ARAMARK SERVICES, INC.
Debt Securities
unconditionally guaranteed by
ARAMARK Corporation
Underwriting Agreement
April 17, 2002
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
From time to time ARAMARK Services, Inc., a Delaware
corporation (the "Company"), and ARAMARK Corporation, a Delaware corporation, as
guarantor (the "Guarantor"), propose to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities"). The Securities are to be
unconditionally guaranteed (the "Guarantees") as to payment of principal,
premium, if any, and interest by the Guarantor.
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company or the
Guarantor to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the Company and the
Guarantor to issue and sell any of the Securities (and to issue the Guarantees
thereof) and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the
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names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company and the Guarantor jointly and severally
represent and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement or statements (collectively, the
"registration statement") in respect of the Securities and the
Guarantees has been filed with the Securities and Exchange Commission
(the "Commission") such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered to you, and,
excluding exhibits thereto but including all documents incorporated by
reference in the prospectus contained therein, to you for each of the
other Underwriters, have been declared effective by the Commission in
such form; no other document with respect to such registration
statement or document incorporated by reference therein has heretofore
been filed with the Commission; and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus supplement included in such
registration statement or filed with the Commission pursuant to Rule
424(b) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), being hereinafter
called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the
documents incorporated by reference in the Prospectus contained in the
registration statement at the time each such part of the registration
statement became effective, but excluding Form T-1, each as amended at
the time such part of the registration statement became effective,
being hereinafter called the "Registration Statement", and the
prospectus relating to the Securities in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, being hereinafter called the
"Prospectus"; and any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include
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any annual report the Guarantor filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing;
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company or the Guarantor by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Designated Securities and the Guarantees thereof, and provided,
further, that this representation and warranty shall not apply to any
superseded statement (or the unmodified form of any modified statement)
which pursuant to Rule 412(c) under the Act shall not be deemed to
constitute a part of the Registration Statement or the Prospectus for
purposes of the Act, or to any omission of any fact which is stated in
the Prospectus or in any subsequently filed document which is also
incorporated by reference in the Prospectus;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements thereto will conform, in all
material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
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information furnished in writing to the Company or the Guarantor by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Designated Securities and the Guarantees thereof;
(d) Neither the Guarantor nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business that is material to the Guarantor and
its subsidiaries taken as a whole from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change in
the consolidated shareholders' equity, consolidated short-term
borrowings or consolidated long-term borrowings of the Guarantor and
its subsidiaries taken as a whole or any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, consolidated financial
position, shareholders' equity or results of operations of the
Guarantor and its subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority (and, with only such
exceptions which are not material, either individually or in the
aggregate, to the Guarantor and its subsidiaries taken as a whole,
other power and authority) to own its properties and conduct its
business as described in the Prospectus; the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority (and, with only such exceptions which are not material,
either individually or in the aggregate, to the Company and its
subsidiaries taken as a whole, other power and authority) to own its
properties and conduct its business as described in the Prospectus;
and, with only such exceptions which are not material, either
individually or in the aggregate, to the Guarantor and its subsidiaries
taken as a whole, each other subsidiary of the Guarantor has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation;
(f) The Guarantor has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Guarantor have been duly and validly authorized and issued and
are fully paid and non-assessable; and all of the issued shares of
capital stock of each subsidiary of the Guarantor have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares and except as otherwise set
forth in the Prospectus) are owned directly or indirectly by the
Guarantor, free and clear of all liens, encumbrances, equities or
claims other than as set forth or contemplated in the Prospectus;
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(g) The Securities have been duly authorized and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, dated as of April 8, 2002 (as amended,
supplemented or otherwise modified from time to time the "Indenture"),
among the Company, the Guarantor and Bank One Trust Company, National
Association, as Trustee (the "Trustee"), under which they are to be
issued, which will be substantially in the form filed as an exhibit to
the Registration Statement or as an amendment thereto or in a document
incorporated by reference therein; the Guarantees have been duly
authorized and, upon due execution, authentication and delivery of the
Securities and the placement of the Guarantees thereon, the Guarantees
will have been duly executed, issued and delivered and will constitute
valid and legally binding obligations of the Guarantor entitled to the
benefits provided by the Indenture; the Indenture had been duly
authorized and duly qualified under the Trust Indenture Act and, at the
Time of Delivery for such Designated Securities, the Indenture will
constitute a valid and legally binding instrument of the Company and
the Guarantor, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles; and the Securities, the Guarantees and
the Indenture will conform in all material respects to the descriptions
thereof in the Prospectus;
(h) The issue and sale of the Securities and the Guarantees
and the compliance by the Company and the Guarantor with all of the
provisions of the Securities, the Guarantees, the Indenture, this
Agreement and the Pricing Agreement and the consummation of the
transactions herein and therein contemplated (i) will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Guarantor or any of its subsidiaries is a party or by which the
Guarantor or any of its subsidiaries is bound or to which any of the
property or assets of the Guarantor or any of its subsidiaries is
subject, (ii) nor will such action result in any violation of the
provisions of (A) the Certificate of Incorporation or the Bylaws of the
Company or the Restated Certificate of Incorporation, as amended, or
the Bylaws of the Guarantor or (B) any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Guarantor or any of its subsidiaries or any of
their properties, except in the case of each of clause (i) and (ii) (B)
for conflicts, breaches, violations and defaults that would not have a
material adverse effect on the Guarantor's or the Company's ability to
comply with or perform its obligations under, the Designated Securities
or the Indenture; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities and
the Guarantees or the consummation by the Company or the Guarantor of
the transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except the registration under the Act of
the Securities and the Guarantees, such as have been, or will have been
prior to the Time of
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Delivery, obtained under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities and the Guarantees by the
Underwriters;
(i) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Guarantor or any
of its subsidiaries is a party or of which any property of the
Guarantor or any of its subsidiaries is the subject which would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, or result of operations of the
Guarantor and its subsidiaries; and, to the best of the Guarantor's
knowledge, no such proceedings are threatened or known to be
contemplated by governmental authorities or threatened by others; and
(j) The auditing firm or firms, who have certified the
financial statements of the Guarantor and its subsidiaries and
ServiceMaster Management Services included or incorporated in the
Registration Statement and Prospectus, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to
any Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to offer
such Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable with the Guarantees placed thereon, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks, payable
to the order of the Company, or by wire transfer, in the funds specified in such
Pricing Agreement, all at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "Time of Delivery" for such Securities.
5. Each of the Company and the Guarantor agree with each of
the Underwriters:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date
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of the Pricing Agreement relating to such Designated Securities and
prior to the Time of Delivery for such Designated Securities which
shall be disapproved by the Representatives for such Designated
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Representatives with copies thereof;
to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company or the Guarantor with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Designated Securities, and
during such same period to advise the Representatives, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Prospectus relating to the such Designated Securities, of the
suspension of the qualification of such Designated Securities for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to such
Designated Securities or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities and
the Guarantees for offering and sale under the securities laws of such
jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Designated Securities, provided that in connection
therewith neither the Company nor the Guarantor shall be required to
qualify as a foreign corporation, to file a general consent to service
of process in any jurisdiction or take any action that would subject
the Company or the Guarantor to taxation in any jurisdiction where it
is not now so subject;
(c) To furnish the Underwriters with copies of the Prospectus
as amended or supplemented in such quantities as the Representatives
may from time to time reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in connection with the
offering or sale of the Designated Securities and if at such time any
event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any
document incorporated by
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reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in the Designated
Securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Designated Securities
at any time nine months or more after the time of issue of the
Prospectus, upon your request and at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c)), an earning statement of the Guarantor and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including at
the option of the Company Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities (other than loans under credit agreements) of
the Company or the Guarantor which mature more than one year after the
Time of Delivery and which are substantially similar to the Designated
Securities, without your prior written consent;
(f) To make available to the holders of the Designated
Securities upon their written request as soon as practicable after the
end of each fiscal year an annual report (including a consolidated
balance sheet and consolidated statements of income, shareholders'
equity and cash flows of the Guarantor and its consolidated
subsidiaries certified by independent public accountants) and, as soon
as practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement and continuing for so long
as the Guarantor is required to file such information with the
Commission) the interim condensed consolidated financial statements
included in the Guarantor's filings on Form 10-Q.
6. Each of the Company and the Guarantor covenants and agrees
with the several Underwriters that the Company and the Guarantor will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Company's and the Guarantor's counsel and accountants in connection with the
registration of the Securities and the Guarantees under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, and Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Pricing Agreement, the
Indenture, the Blue Sky and Legal Investment
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Memoranda and any other documents in connection with the offering, purchase,
sale and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities and the Guarantees for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities and the Guarantees; (v) the filing fees incident to any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities and the Guarantees; (vi) the cost of preparing the
Securities and the Guarantees; (vii) the fees and expenses of the Trustee and
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture, the Securities and the Guarantees; and
(viii) all other costs and expenses incident to the performance of the
Guarantor's and the Company's obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities (including the
Guarantees) by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of Designated
Securities under the Pricing Agreement hereunder shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference
in the Pricing Agreement relating to such Designated Securities are, at and as
of the Time of Delivery for such Designated Securities, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) Cravath, Swaine & Xxxxx, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions,
dated the Time of Delivery for such Designated Securities, with respect
to the incorporation of the Company and the Guarantor, the validity of
the Indenture, the Designated Securities, the Guarantees, the
Registration Statement, the Prospectus as amended or supplemented, and
other related matters as you may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxxxxx Xxxxxxx & Xxxxxxxx, outside counsel to the
Guarantor and the Company, shall have furnished to the Representatives
its written opinion,
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dated the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect (and
subject to customary limitations, assumptions and exceptions) that:
(1) Each of the Company and the Guarantor has been
duly incorporated and is validly existing and in good standing
as a corporation under the laws of the State of Delaware and
has full corporate power and authority to conduct its business
as described in the Registration Statement and Prospectus.
(2) The Indenture has been duly authorized, executed
and delivered by the Company and the Guarantor and duly
qualified under the Trust Indenture Act and, assuming that the
Indenture is a valid and legally binding obligation of the
Trustee, constitutes a valid and legally binding obligation of
the Company and the Guarantor enforceable against the Company
and the Guarantor in accordance with its terms.
(3) The Notes have been duly authorized, executed and
issued by the Company and, assuming due authentication thereof
by the Trustee and upon payment and delivery in accordance
with the Underwriting Agreement, will constitute valid and
legally binding obligations of the Company enforceable against
the Company in accordance with their terms and entitled to the
benefits of the Indenture.
(4) The Guarantee has been duly authorized, executed
and issued by the Guarantor and, assuming due authentication
of the Notes by the Trustee and upon payment and delivery of
the Notes in accordance with the Underwriting Agreement, will
constitute a valid and legally binding obligation of the
Guarantor enforceable against the Guarantor in accordance with
its terms and entitled to the benefits of the Indenture.
(5) The statements made in the Prospectus under the
captions "Description of Our Debt Securities" and "Description
of Notes" insofar as they purport to constitute summaries of
certain terms of documents referred to therein, constitute
accurate summaries of the terms of such documents in all
material respects.
(6) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company and the
Guarantor.
7. The issue and sale of the Notes by the Company,
the issuance of the Guarantee by the Guarantor and the
compliance by the Company and the Guarantor with all of the
provisions of the Underwriting Agreement will not breach or
result in a default under any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument filed
or incorporated by reference as an exhibit to the Registration
Statement, nor will such action violate the Certificate of
Incorporation or Bylaws of the Company or of the Guarantor or
any Federal or New York statute or the Delaware General
Corporation Law or any
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rule or regulation that has been issued pursuant to any
Federal or New York statute or the Delaware General
Corporation Law or any order known to us issued pursuant to
any Federal or New York statute or the Delaware General
Corporation Law by any court or governmental agency or body or
court having jurisdiction over the Guarantor or any of its
subsidiaries or any of their properties.
(8) No consent, approval, authorization, order,
registration or qualification of or with any Federal or New
York governmental agency or body or any Delaware governmental
agency or body acting pursuant to the Delaware General
Corporation Law or, to our knowledge, any Federal or New York
court or any Delaware court acting pursuant to the Delaware
General Corporation Law is required for the issue and sale of
the Notes by the Company, the issuance of the Guarantee by the
Guarantor and the compliance by the Company and the Guarantor
with all of the provisions of the Underwriting Agreement,
except for the registration under the Act of the Notes and the
Guarantee, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Notes by the Underwriters.
(9) The Registration Statement has become effective
under the Act and the Prospectus was filed pursuant to Rule
424(b) of the rules and regulations of the Commission under
the Act and, to our knowledge, no stop order suspending the
effectiveness of the Third Registration Statement has been
issued or proceeding for that purpose has been instituted or
threatened by the Commission.
(10) To our knowledge, there are no statutes or
pending or threatened legal or governmental proceedings to
which the Company or the Guarantor is a party required to be
described in the Prospectus which are not described as
required, or any contracts or documents of a character
required to be described in the Third Registration Statement
or Prospectus or to be filed as exhibits to the Third
Registration Statement or incorporated by reference therein
which are not described and filed or incorporated by reference
as required.
(11) The statements made in the Prospectus under the
caption "Certain United States Federal Income Tax
Considerations," insofar as they purport to constitute
summaries of matters of United States federal tax law and
regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein
in all material respects.
(12) Neither the Company nor the Guarantor is an
"investment company" within the meaning of and subject to
regulation under the Investment Company Act of 1940, as
amended.
(13) The Registration Statement, as of its effective
date, and the Prospectus, as of its date, complied as to form
in all material respects with the requirements of the Act, the
Trust Indenture Act and the applicable rules and
11
regulations of the Commission thereunder and that the Exchange
Act documents incorporated therein complied as to form when
filed in all material respects with the requirements of the
Exchange Act and applicable rules and regulations of the
Commission thereunder, except that in each case they express
no opinion with respect to the financial statements or other
financial data contained in or incorporated by reference into
the Registration Statement or the Prospectus and they have no
reason to believe that the Registration Statement, as of its
effective date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus, as of its date
and at the Time of Delivery of the Designated Securities,
contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, except that in each case
they express no belief with respect to the financial
statements or other financial data contained in or
incorporated by reference into the Registration Statement or
the Prospectus.
(d) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities,
the independent accountants of the Guarantor who have certified the
financial statements of the Guarantor and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives letters, each dated such date or Time
of Delivery, to the effect set forth in the Pricing Agreement.
(e) (i) Neither the Guarantor nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented any loss or interference with its business that
is material to the Guarantor and its subsidiaries taken as a whole from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, and (ii) since the respective
dates as of which information is given in the Prospectus as amended or
supplemented, there shall not have been any change in the consolidated
shareholders' equity, consolidated short-term borrowings or
consolidated long-term borrowings of the Guarantor and its subsidiaries
taken as a whole or any material adverse change, or any development
involving a prospective change, in or affecting the general affairs,
management, consolidated financial position, shareholders' equity or
results of operations of the Guarantor and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented;
12
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's or the Guarantor's debt securities by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act and (ii) no such organization shall have publicly announced
(excluding public announcements of positions previously publicly
announced) that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's or the
Guarantor's debt Securities;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall have occurred any of the
following: (i) trading generally shall have been suspended or
materially limited on the New York Stock Exchange or the
over-the-counter market; (ii) trading of any securities issued or
guaranteed by the Guarantor shall have been suspended on any exchange
or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by Federal or
New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United
States, that, in the judgment of the Representatives, is material and
adverse and makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the
manner contemplated by this Agreement and the Prospectus, as amended at
the date of the Pricing Agreement; and
(h) The Company and the Guarantor shall have furnished or
caused to be furnished to the Representatives at the Time of Delivery
for the Designated Securities certificates of officers of the Company
and the Guarantor satisfactory to the Representatives as to the
accuracy of the representations and warranties of the Company and the
Guarantor herein at and as of such Time of Delivery for the Designated
Securities, as to the performance by the Company and the Guarantor of
all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsection (a), as to
compliance in all material respects with subsection (e) of this Section
and as to such other matters as the Representatives may reasonably
request.
8. (a) The Company and the Guarantor will jointly and
severally indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement or the Prospectus as amended or supplemented relating
to the Designated Securities, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending
13
any such action or claim as such expenses are incurred; provided, however,
that neither the Company nor the Guarantor shall be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement or the Prospectus as amended or
supplemented relating to the Designated Securities or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company or the Guarantor by any Underwriter through the Representatives
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company and the Guarantor against any losses, claims, damages or liabilities to
which the Company or the Guarantor may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement or the Prospectus,
as amended or supplemented relating to the Designated Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement or
the Prospectus as amended or supplemented relating the Designated Securities or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company or the Guarantor for any legal or other expenses reasonably incurred by
the Company or the Guarantor in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then
14
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantor on the one hand and
the Underwriters on the other from the offering of the Designated Securities.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Guarantor on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantor on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the Guarantor bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and the Guarantor
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Guarantor and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of equitable considerations referred to
above in this subsection (d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Guarantor under
this Section 8 shall be in addition to any liability which the Company and the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or the Guarantor and to each person, if any,
who controls the Company or the Guarantor within the meaning of the Act.
15
9. (a) If any underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase hereunder,
the Representatives may in their discretion arrange for the Representatives or
another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities on
such terms. In the event that, within the respective prescribed periods, the
Representatives notify the Company and the Guarantor that the Representatives
have so arranged for the purchase of such Designated Securities, or the Company
or the Guarantor notifies the Representatives that it has so arranged for the
purchase of such Designated Securities, the Representatives or the Company and
the Guarantor shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company and the Guarantor agree to file
promptly any amendments to the Registration Statement or the Prospectus which in
the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company and the Guarantor as
provided in subsection (a) above, the aggregate principal amount of such
Designated Securities which remains unpurchased does not exceed one-eleventh of
the aggregate principal amount of all the Designated Securities, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Designated Securities which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Designated Securities which such Underwriter agreed to purchase hereunder) of
the Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company and the Guarantor as
provided in subsection (a) above, the aggregate principal amount of Designated
Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Designated Securities, or if the Company and the
Guarantor shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
the Designated Securities shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company or the Guarantor, except
for the expenses to be borne by the Company, the Guarantor and the Underwriters
as provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
16
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, the Guarantor, or any officer or director or
controlling person of the Company or the Guarantor, and shall survive delivery
of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company and the Guarantor shall not then be under any
liability to any Underwriter with respect to the Designated Securities covered
by such Pricing Agreement except as provided in Section 6 and Section 8 hereof;
but, if or any other reason, the Designated Securities are not delivered by or
on behalf of the Company and the Guarantor as provided herein, the Company and
the Guarantor will reimburse the Underwriters through the Representatives
(unless the termination shall be pursuant to Section 7(g)(i), Section 7(g)(iii)
or Section 7(g)(iv)) for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Designated Securities, but the Company and the Guarantor shall
then be under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives shall act
on behalf of the Underwriters of the Designated Securities, and the parties
hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any underwriter made or given by such Representatives
jointly or by such Representatives, if any, as shall be designated for such
purpose in the Pricing Agreement.
All statements, requests, notices, and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company or the Guarantor shall
be delivered or sent by mail or facsimile transmission to the address of the
Company or the Guarantor, as the case may be, set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail
or facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or constituting such Questionnaire, which address
will be supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company, the
Guarantor and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of the Company, the Guarantor and each person who
controls the Company and the Guarantor or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
17
14. Time shall be of the essence of each Pricing Agreement. As
used herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us four counterparts hereof.
Very truly yours,
ARAMARK Services, Inc.
By: /s/ L. Xxxxxxxxx Xxxxxxxxxx
------------------------------
Name: L. Xxxxxxxxx Xxxxxxxxxx
Title: Vice President
ARAMARK Corporation
By: /s/ L. Xxxxxxxxx Xxxxxxxxxx
------------------------------
Name: L. Xxxxxxxxx Xxxxxxxxxx
Title: Vice President
Accepted as of the date hereof:
X.X. Xxxxxx Securities Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
18
Annex I
Pricing Agreement
[Name and address of Representative]
Underwriters named in Schedule I hereto
_______ __, 20__
Dear Sirs:
ARAMARK Services, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated April __, 2002 (the "Underwriting Agreement"),
between the Company and ARAMARK Corporation, a Delaware corporation (the
"Guarantor"), on the one hand and X.X. Xxxxxx Securities Inc. on the other hand,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
A supplement to the Prospectus, relating to the Designated
Securities, in the form heretofore delivered to you, is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time and
place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
19
If the foregoing is in accordance with your understanding,
please sign and return to us _______ counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement among the
Underwriters, the Company and the Guarantor. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement Among Underwriters,
the form of which shall be submitted to the Company and the Guarantor for
examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
ARAMARK SERVICES, INC.
By:
------------------------------
Name:
Title:
ARAMARK CORPORATION
By:
------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Co-Representative(s)]
20
SCHEDULE I
Principal Amount of
Securities
Underwriter to be Purchased
[Name(s) of Co-Representative(s)] $
---------------
Total $
===============
21
SCHEDULE II
Title of Designated Securities:
[ %] [Notes]
[Debentures] due
Aggregate principal amount:
[$]
Price to Public:
___% of the principal amount of the Designated Securities, plus accrued
interest from ______ to ______ [ and accrued amortization, if any,
from _____ to _____]
Purchase Price by Underwriters:
___% of the principal amount of the Designated Securities, plus
interest from _____ to _____ [and accrued amortization, if any,
from _____ to _____]
Specified Funds for Payment of Purchase Price:
Immediately available funds
Indenture:
Indenture dated as of April ___, 2002, among the Company, the
Guarantor and Bank One Trust Company, National
Association, as Trustee
Guarantees:
The Designated Securities will be unconditionally guaranteed as to
payment of principal, premium, if any, and interest by the Guarantor.
Maturity:
_________ ___, 20__
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
22
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before
, , %, and if] redeemed during the 12-month period
beginning ,
Year Redemption Price
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.] [on any interest payment
date falling on or after , , at the election of the Company, at a
redemption price equal to the principal amount thereof, plus accrued
interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire [$] principal amount of Designated Securities on in each
of the years through at 100% of their principal amount plus accrued
interest] [, together with [cumulative] [noncumulative] redemptions at
the option of the Company to retire an additional [$] principal amount
of Designated Securities in the years through at 100% of their
principal amount plus accrued interest].
[If Securities are extendable debt securities, insert -- ]
23
Auditors:
The comfort letters shall be in the form of Schedule III hereto.
Time of Delivery:
Closing Location:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Blackout Period:
[Other Terms]:
[The Designated Securities will have such other terms as set forth in
the Prospectus, dated ______ ___, 20__, as supplemented by the
Prospectus Supplement, dated _______ ___, 20__, which is attached
hereto.]
24
