EXHIBIT 4
JPMorgan Private Bank
COLLATERAL AGREEMENT
For value received, and in consideration of one or more loans, letters of
credit or other financial accommodations extended by JPMORGAN CHASE BANK or any
of its subsidiaries or affiliates (the "Bank"), to XXXXX X. XXXXXXXX IRREVOCABLE
DEED OF TRUST Dated December 20, 2000 (the "Obligor", and, if more than one,
collectively, the "Obligor" ), the undersigned and the Bank agree as follows:
1. Definitions.
"Account Assets" means all Deposits, Securities, securities
entitlements and any other assets held in trust, or in any custody, subcustody,
safekeeping, investment management accounts, or other accounts of the
undersigned with the Bank or any other custodian, trustee, Intermediary or
Clearing System (all of which shall be considered "financial assets under the
UCC).
"Account Control Agreement" means a securities account control
agreement or other similar agreement with any Intermediary and shall
specifically include any master securities account control agreement among the
Bank and any of its, affiliates, as amended from time to time.
"Clearing System" means the Depository, Trust Company Cedel Bank,
societe ananyme, the Euroclear system and such other clearing or safekeeping
system that may from time to time be used in connection with transactions
relating to or the custody of any Securities, and any depository for any of the
foregoing.
"Collateral" means: (i) the Deposits, Securities and Account Assets
that are listed on Exhibit A: (ii) all additions to, and proceeds, renewals,
investments, reinvestments and substitutions of, the foregoing, whether or not
listed on Exhibit A; and (iii) all certificates, receipts and other instruments
evidencing any of the foregoing. Notwithstanding anything to the contrary in
this Agreement, "Collateral" shall not include any securities issued by an
affiliate of the Bank, including any of the JPMorgan or American Century
families of funds.
"To the extent that the undersigned shall be prohibited from pledging to the
Bank any shares of Aramark Corp. pursuant to the provisions of the agreement
dated _______between [list parties to Lockup agreement], the lien and security
interest provided for herein shall only be imposed upon such shares at such time
as such prohibition strap expire and no further action by the undersigned shall
be required in order to effect the attachment of such lien and security
interest,"
Deposits" means the deposits of the undersigned with the Bank or with
any other Intermediary (whether or not held in trust, or in any custody,
subcustody, safekeeping, investment management accounts, or other accounts of
the undersigned with the Bank or any other Intermediary).
"Intermediary" means any party acting as a financial intermediary or
securities intermediary, including, without limitation, affiliates of the Bank
that are parties to any Account Control Agreement from time to time.
"Liabilities" means indebtedness, obligations and liabilities of any
kind of the Obligor or of the undersigned to the Bank, now or in the future,
absolute or contingent, direct or indirect, joint or several, due or not due,
arising by operation of law or otherwise, and costs and expenses incurred by the
Bank in connection with the Collateral, this Agreement or any Liability
Document.
"Liability Document" means any instrument, agreement or document
evidencing or delivered in connection with the Liabilities.
"Securities" means the stocks, bonds and other instruments and
securities, whether or not held in trust or in any custody, sub custody,
safekeeping, investment management accounts or other accounts of the undersigned
with the Bank or any other intermediary.
"UCC" means the Uniform Commercial Code in effect in the State of New
York Unless the context otherwise requires, all terms used in this Agreement
which an defined in the UCC will have the meanings stated in the UCC.
2. Grant of Security Interest.
As security for the payment of all the Liabilities, the undersigned
pledges, transfers and assigns to the Bank and grants to the Bank a security
interest in and right of setoff against, the Collateral and hereby agrees to be
bound by the terms of any Account Control Agreement among the Bank and its
affiliates, as amended from time to time.
3. Agreements of the Undersigned and Rights of the Bank.
The undersigned agrees as follows and irrevocably authorizes the Bank to
exercise the rights listed below, at its option, for its own benefit, either in
its own name or in the name of the undersigned, and appoints the Bank as its
attorney-ins fact to take all action permitted under this Agreement
(a) Deposits: The Bank may: (i) renew the Deposits on terms and for periods
the Bank deems appropriate; (ii) demand, collect, and receive payment of any
monies or proceeds due or to become due under the Deposits; (iii) execute any
instruments required for the withdrawal or repayment of the Deposits; (iv) in
all respects deal with the Deposits as the owner; provided that, as to (ii)
through (iv), until the occurrence of a Default (as defined below), the Bank
will only take that action if, in its judgment, failure to take that action
would impair its tights under this Agreement.
(b) Securities: The Bank may: (i) transfer to the account of the Bank any
Securities whether in the possession of, or registered in the name of, any
Clearing System or held otherwise; (ii) transfer to the account of the Bank with
any Federal Reserve Bank any Securities held in book entry form with any such
Federal Reserve Bank; and (iii) transfer to the name of the Bank or its nominee
any Securities registered in the name of the undersigned and held by the Bank
and complete and deliver any necessary stock powers or other transfer
instruments; provided that until the occurrence of a Default the Bank will only
take that action if, in its judgment, failure to take that action would impair
its rights under this Agreement or if such Securities are bald in a custody,
investment management or similar account.
The undersigned grants to the Bank an irrevocable proxy to vote any and all
Securities and give consents, waivers and ratifications in connection with those
Securities upon and after the occurrence of a Default.
All payments, distributions and dividends in securities, property or cash
shall be paid directly to and, at the discretion of the Bank, retained by the
Bank and held by it until applied as provided in this Agreement, as additional
Collateral; provided that until the occurrence of a Default, interest on
Deposits and cash dividends on Securities paid in the ordinary course will be
paid to the undersigned.
(c) General: The Bank may, in its name, or in the name of the undersigned:
(i) execute and file financing statements under the UCC or any other filings or
notices necessary or desirable to create, perfect or preserve its security
interest, all without notice (except as required by applicable law and not
waivable) and without liability except to account for property actually received
by it; (ii) demand, xxx for, collect or receive any money or property at any
time payable or receivable on account of or in exchange for, or make any
compromise or settlement deemed desirable with respect to, any item of the
Collateral (but shall be under no obligation to do so); (iii) make any
notification (to the issuer of any certificate or Security, or otherwise,
including giving any notice of exclusive control to the intermediary) or take
any other action in connection with the perfection or preservation of its
security interest or any enforcement of remedies, and retain any documents
evidencing the title of the undersigned to any item of the Collateral; (iv)
issue entitlement orders with respect to any of the Collateral.
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The undersigned agrees that it will not file or permit to be filed any
termination statement with respect to the Collateral or any financing or like
statement with respect to the Collateral in which the Bank is not named as the
sole secured party, consent or be a party to any Account Control Agreement to
which the Bank is not also a party or sell, assign, or otherwise dispose of,
grant any option with respect to, or pledge, or otherwise encumber the
Collateral provided, however, that until the occurrence of a Default, the
undersigned may buy and sell Collateral subject to the other provisions of this
Agreement, including but not limited to, Section 4. At the request of the Bank
the undersigned agrees to do all other things which the Bank may deem necessary
or advisable in order to perfect and preserve the security interest and to give
effect to the rights granted to the Bank under this Agreement or enable the Bank
to comply with any applicable laws or regulations. Notwithstanding the
foregoing, the Bank does not assume any duty with respect to the Collateral and
is not required to take any action to collect, preserve or protect its or the
undersigned's rights in any item of the Collateral. The undersigned releases the
Bank and agrees to hold the Bank harmless from any claims, causes of action and
demands at any time arising with respect to this Agreement, the use or
disposition of any item of the Collateral or any action taken or omitted to be
taken by the Bank with respect thereto.
The rights granted to the Bank pursuant to this Agreement are in addition
to the rights granted to the Bank in any custody, investment management, trust,
Account Control Agreement or similar agreement. in case of conflict between the
provisions of this Agreement and of any other such agreement, the provisions of
this Agreement will prevail.
4. Loan Value of the Collateral.
The undersigned agrees that at all times the amount of the Liabilities may
not exceed the aggregate Loan Value of the Collateral. The undersigned will, at
the Bank's option, either supplement the Collateral or make, or cause to be
made, any payment under the Liabilities to the extent necessary to ensure
compliance with this provision or the Bank may liquidate Collateral to the
extent necessary to ensure compliance with this provision. "Loan Value" means
the value assigned by the Bank from time to time, in its sole reasonable
discretion, to each item of the Collateral.
5. Currency Conversion.
For calculation purposes, any currency in which the Collateral is
denominated (the "Collateral Currency") will be converted into the currency of
the Liabilities (the "Liability Currency") at the spot rate of exchange for the
purchase of the Liability Currency with the Collateral Currency quoted by the
Bank at such place as the Bank deems appropriate (or, if no such rate is quoted
on any relevant date, estimated by the Bank on the basis of the Bank's last
quoted spot rate) or another prevailing rate that the Bank deems more
appropriate.
6. Representations and Warranties.
The undersigned represents and warrants that:
(a) this Agreement constitutes the legal, valid and binding obligation
of the undersigned, enforceable against the undersigned in accordance with its
terms, except as the enforcement hereof and thereof may be limited by
bankruptcy, insolvency, or other similar laws affecting the enforcement of
creditors' rights generally and subject to the applicability of general
principles of equity;
(b) the execution, delivery and performance by the undersigned of this
Agreement and all other documents contemplated hereby, do not and will not (i)
conflict with or constitute a breach of, or default under, or require any
consent under, or, except as contemplated hereby, result in the creation of any
lien, charge or encumbrance upon the property or assets of the undersigned
pursuant to any other agreement or instrument to which the undersigned is a
party or is bound or by which its properties may be bound or affected; or (ii)
violate any provision of any law, rule, regulation (including, without
limitation, Regulation U of the Federal Reserve Board), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to the undersigned;
(c) no consent, approval or authorization of, or registration,
declaration or filing with, any governmental authority or other person or
entity is required as a condition to or in connection with the due and valid
execution, delivery and performance by the undersigned of this Agreement;
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(d) there are no actions, suits, investigations or proceedings pending
or threatened at law, in equity, in arbitration or by or before any other
authority involving or affecting: (i) the undersigned that if adversely
determined, are likely to have a material adverse effect on the prospects or
condition of the undersigned; (ii) any material part of the assets or properties
of the undersigned or any part of the Collateral; or (iii) any of the
transactions contemplated in this Agreement. There are currently no material
judgments entered against the undersigned and the undersigned is not in default
with respect to any judgment, writ, injunction, order, decree or consent of any
court or other judicial authority, which default is likely to have or has had a
material adverse effect on the prospects or condition of the undersigned;
(e) in the event that the undersigned is a partnership, limited
liability partnership, corporation or limited liability company, the undersigned
also represents and warrants that it is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
Organization, and has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement;
(f) in the event that the undersigned is a trust, the undersigned also
represents and warrants that (1) it is a duly constituted end validly existing
trust, (ii) the undersigned has delivered to the Bank a true, complete and
accurate copy of the agreement pursuant to which it has been organized and all
amendments and modifications thereto, and (iii) the trustees of the undersigned
signing this Agreement have the legal capacity and full power and authority to
execute, deliver, and perform their obligations under, and to bind the
undersigned to perform its obligations under, this Agreement, and to execute and
deliver any and all documents and instruments in connection therewith.
(g) the undersigned is the sole owner of the Collateral and the
Collateral is free of all encumbrances except for the security interest in favor
of the Bank created by this Agreement;
(h) as to Deposits and Account Assets, the undersigned has not
withdrawn, canceled, been repaid or redeemed all or any part of any Deposits or
Account Assets and there is no such pending application; and (i) as to
Securities, the Securities have been duly authorized and are fully paid and
non-assessable, there are no restrictions on pledge of the Securities by the
undersigned nor on sale of the Securities by the Bank (whether pursuant to
securities laws or regulations or shareholder, lock-up or other similar
agreements) and the Securities are fully marketable by the Bank as pledge,
without regard to any holding period, manner of sale, volume limitation, public
information or notice requirements.
7. Default
Bach of the following is an event of default ("Default");
(i) any sum payable on any of the Liabilities is not paid when due; (ii)
any representation and warranty of the undersigned or any party liable on or for
any of the Liabilities (including but not limited to the Obligor, a "Liability
Party") in this Agreement or in any Liability Document shall prove to have been
incorrect in any material respect on or after the date hereof; (iii) the
undersigned or any Liability Party fails to perform or observe any term,
covenant, or condition under this Agreement or under any Liability Document;
(iv) any indebtedness of the undersigned or any Liability Party or interest or
premium thereon is not paid when due (whether by scheduled maturity,
acceleration, demand or otherwise); (v) the undersigned or any Liability Party:
(a) is generally not, or is unable to, or admits in writing its inability to,
pay its debts as its debts become due; (b) makes an assignment for the benefit
or creditors, or petitions or applies to any tribunal for the appointment of a
custodian, receiver or trustee for its or a substantial part of its assets; (c)
commences any proceeding under any law relating to bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation; (d) has any such
petition filed, or any such proceeding has been commenced against it, in which
an adjudication is made or order for relief is entered or which remains
undismissed for a period of 30 days; (e) has a receiver, custodian or trustee
appointed for all or a substantial part of its property; or (f) takes any action
effectuating, approving or consenting to any of the events described in this
section (v); (vi) the undersigned or any Liability Party shall die, dissolve or
for any reason cease to be in existence or merge or consolidate; or if the
undersigned or any Liability Party is a partnership, limited liability
partnership or limited liability company, airy general partner, partner or
member, respectively, shall die, dissolve or for any reason cease to be in
existence or cease to be a partner or member, as the case tray be, or shall
merge or consolidate;
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(vii) the undersigned or any Liability Party is involved
in a proceeding relating to, or which may result in, a forfeiture of all or a
substantial part of the undersigned's or any Liability Party's assets or a
material judgment is entered against the undersigned or any Liability Party;
(viii) there is, in the opinion of the Bank, a material adverse change in the
business, prospects or financial condition of the undersigned or any Liability
Party; then, unless and to the extent that the Bank otherwise elects, the Bank
will be entitled to exercise any of the rights and remedies under this Agreement
8. Remedies.
On a Default, the Bank will have the rights and remedies under the UCC and
the other rights granted to the Bank under this Agreement and may exercise its
rights without regard to any premium or penalty from liquidation of any
Collateral and without regard to the undersigned's basis or holding period for
any Collateral.
The Bank may sell in the Borough of Manhattan, New York City, or elsewhere,
in one or more sales or parcels, at the price as the Bank deems best, for cash
or on credit or for other property, for immediate or future delivery, any item
of the Collateral, at any broker's board or at public or private sale, in any
reasonable manner permissible under the UCC (except that, to the extent
permissible under the UCC, the undersigned waives any requirements of the UCC)
and the Bank or anyone else may be the purchaser of the Collateral and hold it
free from any claim or right including, without limitation, any equity of
redemption of the undersigned, which right the undersigned expressly waives.
The Bank may also, in its sole discretion (i) convert any part of the
Collateral Currency into the Liability Currency; (ii) hold any monies or
proceeds representing the Collateral in a cash collateral account in the
Liability Currency or other currency that the Bank reasonably selects; (iii)
invest such monies or proceeds on behalf of the undersigned; and (iv) apply any
portion of the Collateral, first, to all costs and expenses of the Bank, second,
to the payment of interest on the Liabilities and any fees or commissions to
which the Bank may be entitled, third, to the payment of principal of the
Liabilities, whether or not then due, and fourth, to the undersigned.
The undersigned will pay to the Bank all expenses (including reasonable
attorneys' fees and legal expenses incurred by the Bank and the allocated costs
of its in-house counsel) in connection with the exercise of any of the Bank's
rights or obligations under this Agreement or the Liability Documents. The
undersigned will take any action requested by the Bank to allow it to sell or
dispose of the Collateral. Notwithstanding that the Bank may continue to hold
Collateral and regardless of the value of the Collateral, the applicable
Liability Party will remain liable for the payment in full of any unpaid balance
of the Liabilities.
9. Jurisdiction.
The undersigned hereby irrevocably submits to the jurisdiction of any
New York state or United States federal court sitting in New York City over any
action or proceeding arising out of this Agreement, and the undersigned hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be held and determined in such Now York state or federal court The undersigned
further agrees that any action or proceeding brought against the Bank may be
brought only in a New York state or United States federal court sitting in New
York county. The undersigned hereby further irrevocably consents to the service
of process in any such action or proceeding in either of said courts by mailing
thereof by the Bank by registered or certified mail, postage prepaid, to the
undersigned at its address specified on the signature page hereof, or at the
undersigned's most recent mailing address as set forth in the records of the
Bank.
The undersigned agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in any other jurisdiction by
suit or proceeding in such state and hereby waives any defense on the basis of
an inconvenient forum. Nothing herein shall affect the right of the Bank to
serve legal process in any other manner permitted by law or affect the right of
the Bank to bring any action or proceeding against the undersigned or its
property in the courts of any other jurisdiction.
10. Waiver of Jury Trial
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THE UNDERSIGNED AND THE BANK EACH WAIVE ANY RIGHT TO A JURY TRIAL.
11. Notices.
Unless otherwise agreed in writing, notices may be given to the Bank and
the undersigned at their telecopier numbers (confirmed by telephone to their
telephone numbers) or addresses listed on the signature page of this Agreement,
or such other telecopy (and telephone) number or addresses communicated in
writing by either party to the other. Notices to the Bank are effective on
receipt.
12. Unconditional Obligations.
If the undersigned is not an Obligor, the undersigned's obligations under
this Agreement are unconditional without regard to: (i) any lack of validity or
enforceability of any of the Liabilities or any agreement or instrument relating
to the Liabilities; (ii) any change in the time, manner or place of payment of,
or in any other term of any of the Liabilities or any other amendment or waiver
of, any agreement or instrument relating to the Liabilities; (iii) any release,
exchange, perfection or nonperfection of any item of the Collateral or any
release or amendment or waiver of, any guaranty, subordination or other credit
support for any of the Liabilities; (iv) the release or discharge in full or in
part of any Obligor, (v) any other circumstance that might otherwise constitute
a defense or discharge of the Obligor or a guarantor of the Liabilities or a
party agreeing to subordinate its claim to the Liabilities; or (vi) any law,
regulation or order now or later in effect affecting the Liabilities or any
agreement or instrument relating to any of the Liabilities.
13. Miscellaneous.
(a) As used herein, the term undersigned shall include all signatories
hereto, if more than one. In such event, the obligations, representations and
warranties of the undersigned hereunder shall be joint and several. This
Agreement shall be binding on the undersigned and its successors and assigns and
shall inure to the benefit of the Bank and its successors and assigns, except
that the undersigned may not delegate any of its obligations hereunder without
the prior written consent of the Bank.
(b) No amendment or waiver of any provision of this Agreement nor consent
to any departure by the undersigned will be effective unless it is in writing
and signed by the undersigned and the Bank and will be effective only in that
specific instance and for that specific purpose, No failure on the part of the
Bank to exercise, and no delay in exercising, any right will operate as a waiver
or preclude any other or further exercise or the exercise of any other right,
(c) The rights and remedies in this Agreement are cumulative and not
exclusive of any rights and remedies which the Bank may have under law or under
other agreements or arrangements with the undersigned or any Liability party.
(d) The provisions of this Agreement are intended to be severable, If for
any reason any provision of this Agreement is not valid or enforceable in whole
or in part in any jurisdiction, that provision will, as to that jurisdiction, be
ineffective to the extent of that invalidity or unenforceability without in any
manner affecting the validity or enforceability in any other jurisdiction or the
remaining provisions of this Agreement
(e) The undersigned hereby waives presentment, notice of dishonor and
protest of all instruments included in or evidencing the Liabilities or the
Collateral and any other notices and demands, whether or not relating to those
instruments.
(f) This Agreement is governed by and construed according to the law of the
State of New York
IN WITNESS WHEREOF, the undersigned has signed this Agreement as of this 30th
day of JANUARY, 2002.
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ACCEPTED:
XX Xxxxxx Xxxxx Bank
By: /s/ XXXXXX X. XXXXXX
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address for notices to the Bank:
JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn. Xxxxxx Xxxxxx
Telecopier 000-000-0000
Telephone: 212.464-0423
M. Xxxxxx Xxxxxx, as Trustee of
JAMS E KSANSNAK IRREVOCABLE DEED OF TRUST Dated December 20, 2000
By: /s/ M. XXXXXX XXXXXX
--------------------
Trustee
Address for notices:
---------------------------------
--------------------------------
--------------------------------
Telecopior.
Telephone:
EXHIBIT A
DESCRIPTION OF THE
COLLATERAL
l, Deposits
Type of Location
Deposit (NY, Account
(CD, TD, IBF-NY, Contract or
etc) etc.) Certificate No.
----------------------------------------------------------------
2. Stocks, Bonds and Other Instruments and Securities
Nature of Security Number of Certificate
or Obligation Name of Issuer Units Number (if applicable)
------------- -------------- -------------------------------
3. All Assets Held or To Be Held in the Following Custody or Subcustody
Accounts, Safekeeping Accounts, Investment Management Accounts and/or other
account with Intermediary:
Account Entity Name
Number
JPMorgan Chase Bank
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