EXHIBIT 1.1
ARAMARK SERVICES, INC.
Debt Securities
unconditionally guaranteed by
ARAMARK Corporation
Underwriting Agreement
August 20, 2002
Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10016
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
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 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
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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 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
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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 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
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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;
(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;
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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
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
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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 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
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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 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
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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 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 & Moore, 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
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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) Simpson Thacher & Bartlett, outside counsel to the Guarantor and
the Company, shall have furnished to the Representatives its written
opinion, 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 Second Registration Statement (as defined therein) 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
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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
Second 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 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 Second 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
Second 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 Second Registration
Statement or Prospectus or to be filed as exhibits to the Second
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.
11
(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 Second 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 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 Second Registration Statement or the Prospectus
and they have no reason to believe that the Second 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 Second 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
12
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;
(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
13
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 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
14
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 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.
15
(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.
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
16
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.
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.
17
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.
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/ John M. Lafferty
---------------------------
Name: John M. Lafferty
Title: Senior Vice President,
Controller and Chief
Accounting Officer
ARAMARK Corporation
By: /s/ John M. Lafferty
---------------------------
Name: John M. Lafferty
Title: Senior Vice President,
Controller and Chief
Accounting Officer
18
Accepted as of the date hereof:
Salomon Smith Barney Inc.
By: /s/ James Oakes
------------------------------
Name: James Oakes
Title: Managing Director
Goldman, Sachs & Co.
/s/ Goldman, Sachs & Co.
- ----------------------------------
(Goldman, Sachs & Co.)
19
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 August __, 2002 (the "Underwriting Agreement"),
between the Company and ARAMARK Corporation, a Delaware corporation (the
"Guarantor"), on the one hand and Salomon Smith Barney Inc. and Goldman, Sachs
& Co. 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.
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)]
2
SCHEDULE I
Principal Amount of
Securities
Underwriter to be Purchased
----------- -------------------
[Name(s) of Co-Representative(s)].............. $
---------------
Total................................. $
===============
SCHEDULE II
Title of Designated Securities:
[ %] [Notes]
[Debentures] due
Aggregate principal amount:
[$]
Price to Public:
___% of the principal amount of the Designated Securities, plus accrued
interest from ______ to ______ [ and accrued amortization, if any, from
_____ to _____]
Purchase Price by Underwriters:
___% of the principal amount of the Designated Securities, plus interest
from _____ to _____ [and accrued amortization, if any, from _____ to
_____]
Specified Funds for Payment of Purchase Price:
Immediately available funds
Indenture:
Indenture dated as of April 8, 2002, among the Company, the Guarantor and
Bank One Trust Company, National Association, as Trustee
Guarantees:
The Designated Securities will be unconditionally guaranteed as to
payment of principal, premium, if any, and interest by the Guarantor.
Maturity:
_________ ___, 20__
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$] 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 -- ]
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.]