-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, maE7mMljjj4+D3w5c4hMhnixLkBJJvBC6jSHr+HQH9W9d5Onm1YqZG5Q7klKIG5J BHs/KxPIF8v839j8m7oI/g== 0000950123-94-001936.txt : 19941129 0000950123-94-001936.hdr.sgml : 19941129 ACCESSION NUMBER: 0000950123-94-001936 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19941128 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ENVIRODYNE INDUSTRIES INC CENTRAL INDEX KEY: 0000033073 STANDARD INDUSTRIAL CLASSIFICATION: 3089 IRS NUMBER: 952677354 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-07886 FILM NUMBER: 94561999 BUSINESS ADDRESS: STREET 1: 701 HARGER RD STE 121 CITY: OAK BROOK STATE: IL ZIP: 60521 BUSINESS PHONE: 7085718800 FORMER COMPANY: FORMER CONFORMED NAME: MGN INC DATE OF NAME CHANGE: 19790425 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GLAZER MALCOLM I CENTRAL INDEX KEY: 0000905293 STANDARD INDUSTRIAL CLASSIFICATION: STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1482 SOUTH OCEAN BLVD CITY: PALM BEACH STATE: FL ZIP: 33480 BUSINESS PHONE: 4078351482 MAIL ADDRESS: STREET 2: 1482 SOUTH OCEAN BLVD CITY: PLAM BEACH STATE: FL ZIP: 33480 SC 13D/A 1 SCHEDULE 13D / AMENDMENT NO. 3 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 3) ENVIRODYNE INDUSTRIES, INC. --------------------------- (Name of Issuer) Common Stock, par value $0.01 per share --------------------------------------- (Title of Class of Securities) 294037205 -------------- (CUSIP Number) Gordon E. Forth, Esq. WOODS, OVIATT, GILMAN, STURMAN & CLARKE 44 Exchange Street Rochester, New York 14614 (716) 454-5370 ______________ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 17, 1994 ------------------ (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ] Check the following box if a fee is being paid with the statement [ ] 2 SCHEDULE 13D CUSIP NO. 294037205 Page 2 of 45 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON THE MALCOLM I. GLAZER TRUST 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Florida NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 4,189,298 OWNED BY EACH 8 SHARED VOTING POWER REPORTING PERSON WITH - 0 - 9 SOLE DISPOSITIVE POWER 4,189,298 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,189,298 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 31.0% 14 TYPE OF REPORTING PERSON OO 154228 Page 2 of 45 Pages 3 SCHEDULE 13D CUSIP NO. 294037205 Page 3 of 45 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MALCOLM I. GLAZER S.S. NO. ###-##-#### 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS PF, BK 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 4,189,298 OWNED BY EACH 8 SHARED VOTING POWER REPORTING PERSON WITH - 0 - 9 SOLE DISPOSITIVE POWER 4,189,298 10 SHARED DISPOSITIVE POWER - 0 - 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,189,298 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 31.0% 14 TYPE OF REPORTING PERSON IN 154228 Page 3 of 45 Pages 4 This Amendment No. 3 ("Amendment No. 3") amends and supplements the statement ("Statement") to the Schedule 13D dated August 14, 1994, as amended ("Schedule 13D"), and filed on August 15, 1994 on behalf of The Malcolm Glazer Trust ("Trust") and Malcolm I. Glazer relating to the common stock, par value $.01 per share, of Envirodyne Industries, Inc. ("Envirodyne"). All capitalized terms used herein and not otherwise defined herein have the meanings previously ascribed to such terms in the Schedule 13D. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Item 3 of the Statement is hereby amended by deleting the last paragraph thereof and inserting in place thereof the following paragraph: On November 17, 1994 and November 18, 1994, the Trust paid an aggregate of $12,790,162.41 in settling the purchases on those dates, including commissions, discussed in Item 5(a) below. Of the $12,790,162.41 used to make such purchases, $2,790,162.41 were obtained from the personal funds of Mr. Glazer which were contributed to the Trust and $10,000,000.00 of such funds were borrowed by the Trust from NationsBank, N.A. (the "Bank") pursuant to advances under a Credit Agreement dated as of November 14, 1994 ("Credit Agreement") among Mr. Glazer, the Trust and the Bank. The Credit Agreement provides for advances to Mr. Glazer and the Trust under a revolving line in the maximum principal amount of $10,000,000.00. Advances under the revolving line are evidenced by a $10,000,000.00 Promissory Note dated November 14, 1994 (the "Promissory Note") executed by Mr. Glazer and the Trust in favor of the Bank, which is unsecured, and bear interest at the prime rate of interest announced by the Bank from time to time. All principal amounts payable under the Promissory Note are payable in full on October 31, 1995. A copy of the Credit Agreement and the Promissory Note is attached hereto as Exhibit 9 and Exhibit 10, respectively. ITEM 4. PURPOSE OF TRANSACTION. Item 4 of the Statement is hereby amended by inserting the following paragraph after the end thereof: The waiting period under the Hart-Scott-Rodino Act commenced by Mr. Glazer's filing on or about October 13, 1994 of a Notification and Report Form for Certain Mergers and Acquisitions with the Federal Trade Commission and the Department of Justice expired at 11:59 p.m. on November 11, 1994. 154228 Page 4 of 45 Pages 5 ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5(a) of the Statement is hereby amended by deleting the penultimate paragraph thereof and adding to the end thereof the following: On November 17, 1994, the Trust settled its purchase of 289,238 shares of Common Stock pursuant to the letter agreement dated August 16, 1994. On November 18, 1994, the Trust settled the purchase of (i) 1,100,299 shares pursuant to the Securities Purchase Agreement dated as of October 12, 1994, (ii) 995,698 shares pursuant to the letter agreement dated as of August 18, 1994, and (iii) 57,912 shares that were acquired on September 14, 1994, which was not previously reported. The Trust and Mr. Glazer are the beneficial owners of 4,189,289 shares of Common Stock, which constitutes approximately 31.0 %of the outstanding shares of Common Stock (based on the 13,500,000 shares of Common Stock reported as outstanding in Envirodynes' Form 10-Q for the quarterly period ended June 30, 1994). Mr. Glazer's beneficial ownership arises as a result of being the sole trustee of the Trust and during his lifetime, the sole beneficiary of the Trust. Item 5(b) of the Statement is hereby amended by deleting the last paragraph thereof and inserting in place thereof the following: As of November 17, 1994, the Trust acquired the power to vote or direct the vote or to dispose or direct the disposition of the 289,238 shares of Common Stock which settled on that day. As of November 18, 1994, the Trust acquired the power to vote or direct the vote or to dispose or direct the disposition of the 2,153,909 shares of Common Stock which settled on that day. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO THE SECURITIES OF THE ISSUER. Item 6 of the Statement is hereby amended by inserting immediately prior to the last paragraph thereof the following: The Trust and Argosy entered into an Escrow Deposit Agreement dated as of November 2, 1994 relating to the 289,238 shares of Common Stock that were subject to the August 16, 1994 letter agreement and settled on November 17, 1994. A copy of the Escrow Deposit Agreement is attached hereto as Exhibit 11. 154228 Page 5 of 45 Pages 6 ITEM 7. MATERIALS TO BE FILED AS EXHIBITS. Item 7 of the Statement is hereby amended by deleting Exhibit 3 attached to Amendment No. 1 to the Schedule 13D and replacing it with the Exhibit 3 attached hereto and adding to the end of such Item the following: Exhibit 9 - Credit Agreement dated November 14, 1994 among the Trust, Malcolm Glazer and NationsBank, N.A. Exhibit 10 - $10,000,000.00 Promissory Note dated November 14, 1994 executed BY the Trust and Malcolm Glazer in favor of NationsBank, N.A. Exhibit 11 - Escrow Deposit Agreement dated as of November 2, 1994 among the Trust, Wertheim Schroder & Co. Incorporated and The Argosy Securities Group, Ltd. 154228 Page 6 of 45 Pages 7 SIGNATURE PAGE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: November 21, 1994 THE MALCOLM I. GLAZER TRUST By: S//MALCOLM I. GLAZER, AS TRUSTEE --------------------------------- Malcolm I. Glazer, as Trustee By Avram Glazer as Power of Attorney S//MALCOLM I. GLAZER --------------------------------- Malcolm I. Glazer By Avram Glazer as Power of Attorney 154228 Page 7 of 45 Pages 8 Exhibit 3 TRANSACTIONS IN THE SHARES SINCE AUGUST 15, 1994
Number1 Price2 Purchaser Purchase Date of Shares Per Share - --------- ------------- --------- --------- Malcolm I. Glazer 8/16/94 289,238 $5.165 as Trustee F/B/O Malcolm I. Glazer Trust U/A dated as of March 23, 1990. Malcolm I. Glazer 8/18/94 995,698 $5.125 as Trustee F/B/O Malcolm I. Glazer Trust U/A dated as of March 23, 1990 Malcolm I. Glazer 9/14/94 57,912 $5.1875 as Trustee F/B/O Malcolm I. Glazer Trust U/A dated as of March 23, 1990
____________________ 1 These shares were purchased in private transactions. 2 The purchase price includes broker's commissions. 154228 Page 8 of 45 Pages 9 EXHIBIT INDEX ------------- Exhibit No. Description ----------- ------------ Exhibit 9 - Credit Agreement dated November 14, 1994 among the Trust, Malcolm Glazer and NationsBank, N.A. Exhibit 10 - $10,000,000.00 Promissory Note dated November 14, 1994 executed BY the Trust and Malcolm Glazer in favor of NationsBank, N.A. Exhibit 11 - Escrow Deposit Agreement dated as of November 2, 1994 among the Trust, Wertheim Schroder & Co. Incorporated and The Argosy Securities Group, Ltd. EX-99.9 2 CREDIT AGREEMENT DATED 11/4/94 1 Exhibit 9 CREDIT AGREEMENT This Credit Agreement ("Agreement") dated as of November ___, 1994, by and between NationsBank, N.A., a national banking association ("Lender") and the Borrowers described below: In consideration of the financial accommodations described below and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, Lender and Borrowers agree as follows: I. DEFINITIONS AND REFERENCE TERMS. In addition to any other terms defined herein, the following terms shall have the meaning set forth with respect thereto: A. BORROWERS. Malcolm I. Glazer and The Malcolm Glazer Trust. B. BORROWERS' ADDRESS. 1482 South Ocean Boulevard, Palm Beach, Florida 33480. C. CREDIT. The Revolving Line of Credit described in Section 2 hereof, and any other loans and other financial accommodations made by Lender to Borrowers in the future which specifically reference this Agreement. D. FINANCING DOCUMENTS. This Agreement and the promissory note or notes (the "Note") executed pursuant to Section 2 hereof and any and all other documents, instruments, certificates and agreements executed and/or delivered by Borrowers in connection therewith as the same may be amended, modified, restated, substituted, extended or renewed at any time and from time to time. E. USE OF PROCEEDS. The proceeds of the Credit shall be used for the Borrowers' business investments. F. OTHER REFERENTIAL PROVISIONS. All accounting terms not specifically defined or specified herein shall have the meanings generally attributed to such terms under generally accepted accounting principles, as in effect from time to time, consistently applied. 2. CREDIT FACILITY. A. LINE OF CREDIT. Pursuant to the terms hereof, a revolving line of credit is being extended by Lender to Borrowers. Pursuant to such revolving line and all renewals, extensions or rearrangements thereof to Borrowers by Lender (the 154228 Page 9 of 45 Pages 2 "Line") under which the Borrowers may from time to time, and subject to the sole discretion of the Lender, borrower, repay and re-borrow funds up to an aggregate principal amount at any one time outstanding set forth in the Note evidencing the Line with a maturity date, interest rate and payment obligations as set forth in the Note. B. CLEAN UP PERIOD. Borrowers shall maintain a zero (0) balance on the Line for a period of at least thirty (30) consecutive days during the term of the Line. C. PROCEDURE FOR ADVANCES. (a) Each advance under the Line shall be in an amount of not less than $25,000. The Borrowers shall give the Lender notice of each proposed advance not later than 12:00 noon on the date of each proposed advance. (b) Each request for an advance shall be in writing and signed by Malcolm I. Glazer or such other person as he may from time to time designate in writing to the Lender as his authorized representative for such purposes. Each such written request for advance shall (i) include Borrowers' certification of compliance with all covenants applicable to the Credit, including but not limited to the absence of any material adverse change in the financial position or operations of Borrowers and (ii) set forth the principal balance then outstanding under each of the Third Party Lines of Credit (as hereinafter defined). (c) In addition, each of the Borrowers hereby irrevocably authorizes the Lender to make advances of the Line at any time and from time to time, without further request from or notice to the Borrowers, to cover principal of, and/or interest on, the Credit, fees, and/or Enforcement Costs, prior to, on, or after the termination of this Agreement, regardless of whether the aggregate amount of the advances of the Line which the Lender may make hereunder exceeds the face amount of the Note. The Lender shall have no obligation whatsoever to make any advance under this subsection 2C(c) and the making of one or more advances under this subsection shall not obligate the Lender to make other similar advances. D. CONDITIONS OF LENDING. The obligation of the Lender to make any advances under the Line hereunder is subject to the following conditions precedent: (i) Opinion of Counsel for the Borrowers. On the date hereof, the Lender shall receive the favorable written opinion of counsel for the Borrowers as to such matters as the Lender may require, dated as of the date hereof, addressed to the Lender and satisfactory in all respects to the Lender. 154228 Page 10 of 45 Pages 3 (ii) Approval of Counsel for the Lender. All legal matters incident to the Credit and all documents necessary in the opinion of the Lender to make the Credit shall be satisfactory in all material respects to counsel for the Lender. (iii) Financing Documents. All of the Financing Documents required by Lender shall be executed and delivered, all at the sole expense of Borrowers. (iv) Compliance. At the time of the making of each advance hereunder (a) Borrowers shall have complied and shall then be in compliance with all the terms, covenants and conditions of this Agreement, (b) there shall exist no default and no event which, with the giving of notice or the passage of time, or both, would constitute a default, (c) the representations and warranties contained in this Agreement shall be true with the same effect as though such representations and warranties had been made at the time of the making of the advance and (d) there shall have occurred no material adverse change in the financial position or business operations of Borrowers as determined by Lender in its sole discretion. 3. REPRESENTATIONS AND WARRANTIES. Borrowers hereby represent and warrant to Lender as follows: A. AUTHORITY AND COMPLIANCE. Borrowers have full power and authority to execute and deliver the Financing Documents and to incur and perform the obligations provided therein, and have the power and authority to own their property and to carry on business in each jurisdiction in which Borrowers do business. No consent or approval of any public authority or other third party is required as a condition to the validity of any Financing Documents, (which have not been obtained) and Borrowers are in compliance with all laws and regulatory requirements to which they are subject. B. BINDING AGREEMENT. This Agreement and the other Financing Documents executed by Borrowers constitute valid and legally binding obligations of Borrowers, enforceable in accordance with their terms. C. LITIGATION. There are no proceedings involving Borrowers pending or, to the knowledge of Borrowers, threatened by or before any court or governmental authority, agency or arbitration authority, except as disclosed to Lender in writing prior to the date of this Agreement in an exhibit to the opinion letter of Borrowers' counsel, which may materially adversely affect the financial condition, operation or prospects of the Borrowers and are not covered by insurance. 154228 Page 11 of 45 Pages 4 D. NO CONFLICTING AGREEMENTS. There is no provision of any existing agreement, mortgage, indenture or contract binding on Borrowers or affecting Borrowers' property, which would conflict with or in any way prevent the execution, delivery or carrying out of the terms of this Agreement and the other Financing Documents. E. OWNERSHIP OF ASSETS. Borrowers have good title to Borrowers' assets, and the Borrowers' assets are free and clear of liens, except those disclosed to Lender in the Borrowers' financial statement dated June 7, 1994 in connection with certain non- recourse credit facilities identified in such financial statement (collectively, the "Non-Recourse Debt"). F. TAXES. All income taxes and other taxes due and payable by Borrowers have been paid or are being contested in good faith by appropriate proceedings. G. FINANCIAL STATEMENTS. The personal financial statements of Borrowers heretofore delivered to Lender properly reflect Borrowers' financial condition as of the date or dates thereof, and there has been no material adverse change in Borrowers' financial condition or operations since the financial statements dated June 7, 1994. To the best of Borrowers' knowledge, all factual information furnished by Borrowers to Lender in connection with this Agreement is and will be accurate and complete on the date as of which such information is delivered to Lender and is not incomplete by the omission of any material fact necessary to make such information not misleading. H. ENVIRONMENTAL MATTERS. Borrowers are in compliance with all Environmental Laws where failure to comply could have a material adverse effect on Borrowers' financial condition or operations. Borrowers have not received notice of any claim that Borrowers are not in compliance with any Environmental Laws. Neither Borrowers, nor any of Borrowers' present assets or operations or Borrowers' past assets or operations, is subject to any order, agreement, proceeding or investigation by, with, or before any federal, state or local governmental agency or other party respecting any Environmental Laws. The term "Environmental Laws" means any federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any Hazardous Materials or other hazardous or toxic substance, as now or at any time hereafter in effect, including without limitation the Clean Air Act, 42 USC Section 7401 et seq.; Federal Water Pollution Control Act, 33 USC Section 1251 et seq.; Solid Waste Disposal Act, 42 USC Section 6901 et seq.; Comprehensive Environmental Response, Compensation and Liability Act, 42 USC Section 9601 et seq.; National Environmental Policy Act, 42 USCSection 4321 et seq.; regulations of the Environmental Protection Agency and any 154228 Page 12 of 45 Pages 5 applicable 1-al or state law, rule, regulation or rule of common law and any judicial interpretation thereof relating primarily to the environment or Hazardous Materials. The term "Hazardous Material" shall mean and include (a) any asbestos, PCBs, or dioxins, or insulation or other material composed of or containing asbestos, PCBs or dioxins, (b) oil, petroleum and any petroleum product, and (c) any hazardous, toxic, or dangerous waste, substance, or material defined as such in any Environmental Law. I. MARGIN STOCK. None of the proceeds of the Credit will be used for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). Borrowers are not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). J. TRUST. The Malcolm Glazer Trust is a revocable trust created pursuant to an agreement dated March 23, 1990 which has not been modified or revoked except for an Amendment dated July 23, 1993. K. NO DEFAULT. Borrowers are not in default under any existing indebtedness and the execution and delivery of the Financing Documents will not cause a default under any of such indebtedness. L. CONTINUATION OF REPRESENTATIONS AND WARRANTIES. All representations and warranties made under this Agreement shall be deemed to be made at and as of the date hereof and as of the date of any future advance under any Credit. 4. AFFIRMATIVE COVENANTS. Until full payment and performance of all obligations of Borrowers under the Financing Documents, Borrowers will, unless Lender consents otherwise in writing (and without limiting any requirement of any other Financing Document): A. FINANCIAL STATEMENTS. Maintain a system of accounting satisfactory to Lender and permit Lender's officers or authorized representatives to visit and inspect Borrowers' books of account and other records at such reasonable times and as often as Lender may desire, and pay the reasonable fees and disbursements of any accountants or other agents of Lender selected by Lender for the foregoing purposes. Unless written notice of another location is given to Lender, Borrowers' books and records will be located at Borrowers' address set forth above. 154228 Page 13 of 45 Pages 6 In addition, Borrowers will: 1. Furnish to Lender annual financial statements of Borrowers prepared by Borrowers within thirteen (13) months after the date of the most recent financial statement provided to Lender, in form and substance satisfactory to Lender, and including without limitation a listing of all assets and liabilities, a listing of all sources of income, a listing of the uses of income, the amount and sources of contingent liabilities, identification of joint owners as to listed assets, and an annual projection of sources and uses of income. Such financial statements must be dated and signed by the Borrowers, either prepared on the Lender's form or certified by the Borrowers. Such certification shall include the following sentence: "This financial statement is being submitted to NationsBank, N.A. for the purpose of obtaining credit and constitutes the true and correct statement of my/our financial condition". 2. Cause to be furnished to Lender within thirty (30) days of filing complete, signed copies of the Borrowers' federal income tax returns and of all related Schedule K-1's. 3. Furnish or cause to be furnished to Lender promptly such additional information, reports and statements respecting the business operations and financial condition of Borrowers, from time to time, as Lender may reasonably request. B. COMPLIANCE. Comply with all laws, regulations and governmental requirements including, without limitation, Environmental Laws applicable to Borrowers or to any of Borrowers' property, business operations and transactions. C. ADVERSE CONDITIONS OR EVENTS. Promptly advise Lender in writing of (i) any condition, event or act which comes to Borrowers' attention that would or might materially adversely affect Borrowers' financial condition or operations, or Lender's rights under the Financing Documents; (ii) any litigation filed by or against Borrowers; (iii) any default under the Financing Documents; (iv) any default under any agreement, mortgage, indenture or contract binding on Borrowers or affecting any of the Borrowers' property, including but not limited to the Third Party Lines of Credit (as hereinafter defined); (v) any and all enforcement, cleanup, remedial removal or other governmental or regulatory actions instituted, completed or threatened pursuant to any applicable federal, state or local laws, ordinances or regulations relating to any Hazardous Materials affecting Borrowers' property or business operations; and (vi) all claims made or threatened by any third party against Borrowers relating to damages, contribution, cost recovery, compensation, loss or 154228 Page 14 of 45 Pages 7 injury resulting from any Hazardous Materials. Borrowers shall immediately notify Lender of any remedial action taken by Borrowers with respect to Borrowers' property. D. TAXES AND OTHER OBLIGATIONS. Pay all of Borrowers' taxes and other obligations as the same become due and payable, except to the extent being contested in good faith by appropriate proceedings. E. PARI PASSU TREATMENT. Insure that the Lender will be treated on a pari passu basis with all other unsecured creditors of Borrowers, including but not limited to the lenders of the Third Party Lines of Credit. 5. NEGATIVE COVENANTS. Until full payment and performance of all obligations of Borrowers under the Financing Documents, Borrowers will not, without the prior written consent of Lender (and without limiting any requirement of any other Financing Document): A. TRANSFER OF ASSETS. Sell, lease, assign or otherwise dispose of or transfer any of the Borrowers' assets, except sales or other transfers of assets for which fair value is paid or transfers between Malcolm I. Glazer and the Malcolm Glazer Trust created pursuant to the agreement dated March 23, 1990. B. LIENS (NEGATIVE PLEDGE). Grant, suffer or permit any contractual or noncontractual lien on or security interest in Borrowers' assets, except in favor of Lender and/or lenders of Third Party Lines of Credit subject to pari passu treatment of the Lender and the lenders of the Third Party Lines of Credit as required under paragraph 4E above, or fail to promptly pay when due all lawful claims, whether for labor, materials or otherwise. The foregoing notwithstanding, the Borrowers will not enter into any negative pledge agreement with any other lender except those negative pledge agreements in favor of the lenders of the Third Party Lines of Credit. C. BORROWINGS. Create, incur, assume or become liable in any manner for any indebtedness (for borrowed money, reimbursement obligations under any letter of credit agreement, deferred payment for the purchase of assets, lease payments, as surety or guarantor for the debt of another, or otherwise) other than to Lender, which in the aggregate exceeds $100,000 with the exception of the unsecured term line of credit from SunBank of Florida in the maximum principal sum of $10,000,000 (the "SunBank Line of Credit"), the unsecured short term line of credit from Manufacturers and Traders Trust Company in the maximum principal sum of $10,000,000 (the "M&T Line of Credit;" collectively, with the SunBank Line of Credit, the "Third Party Lines of Credit") and the Non-Recourse Debt. The foregoing shall not be deemed to 154228 Page 15 of 45 Pages 8 prohibit the Borrowers from entering into stock purchase agreements or other contracts for the acquisition of assets. D. OTHER COVENANTS. Violate or fail to comply with any covenants or agreements regarding other indebtedness. E. CHARACTER OF BUSINESS. Change the general character of business conducted by Borrowers at the date hereof, or engage in any type of business not reasonably related to Borrowers' business as presently conducted. F. ENVIRONMENTAL LAW COMPLIANCE. Violate any Environmental Laws and Borrowers will not use or permit any other party to use any Hazardous Materials except such materials as are incidental~to Borrowers' normal course of business, maintenance and repairs. Borrowers agree to permit Lender, its agents, contractors and employees to enter and inspect Borrowers' premises at any reasonable times upon three (3) days prior notice for the purpose of conducting an environmental investigation and audit (including taking physical samples) to ensure that Borrowers are complying with this covenant. Borrowers shall provide Lender, its agents, contractors, employees and representatives with access to and copies of any and all data and documents relating to or dealing with any Hazardous Materials within five (5) days of the request thereof. 6. DEFAULT. The occurrence of any of the following shall constitute a default under this Agreement and under each of the other Financing Documents: A. Borrowers shall fail to pay in full when due any principal, interest, fee or other amount payable to Lender under any Financing Document or any other obligation of Borrowers to Lender, whether at maturity or otherwise; or B. The discovery by Lender that any representation or warranty by Borrowers in any Financing Document or in any financial statement, certificate, report or opinion submitted to Lender in connection with the Credit was incorrect or misleading in any material respect when made; or C. Borrowers shall fail to timely and properly observe, keep or perform any term, covenant, agreement or condition in any Financing Document; or D. A default shall occur under any of the Third Party Lines of Credit; or E. Any judgment against Borrowers or other levy or attachment against any property of Borrowers in excess of $25,000 remains unpaid, undischarged, not bonded or not dismissed for a period of thirty (30) days; or 154228 Page 16 of 45 Pages 9 F. The death or legal incapacity of Malcolm I. Glazer; or G. Any of the Borrowers (i) makes an assignment for the benefit of creditors'; (ii) admits in writing its inability to pay or fails to pay its debts generally as they become due; (iii) files a petition for relief under any chapter of the Bankruptcy Code or any other bankruptcy or debtor relief law, domestic or foreign, as now or hereafter in effect, or seeking the appointment of a trustee, receiver, custodian, liquidator or similar official for Borrowers or any of Borrowers' property; or any such action is commenced against Borrowers and Borrowers admit, acquiesce in or do not contest diligently the material allegations thereof, or the action results in entry of an order for relief against Borrowers, or Borrowers do not obtain permanent dismissal and discharge thereof before the earlier of trial thereon or sixty (60) days after commencement of the action; or (iv) makes a transfer or incurs an obligation which is fraudulent under any applicable law as to any creditor. 7. REMEDIES UPON DEFAULT. If an event of default shall occur: A. Any indebtedness of Borrowers under any of the Financing Documents shall, at Lender's option, without notice become immediately due and payable without presentment, demand, protest or notice of dishonor, all of which are hereby expressly waived by Borrowers; B. The obligation, if any, of Lender to permit further borrowings under any of the Financing Documents shall at Lender's option immediately cease and terminate; C. Lender shall have all rights, powers and remedies available under each of the Financing Documents, or afforded by law. All rights, powers and remedies of Lender in connection with each of the Financing Documents may be exercised at any time by the Lender and from time to time after the occurrence of any event of default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity. 8. NOTICES. All notices, requests or demands which any party is required or may desire to give to any other party under any provision of this Agreement must be in writing delivered to each party at the following address: Borrowers: Malcolm I. Glazer and/or The Malcolm Glazer Trust 1482 South Ocean Boulevard Palm Beach, Florida 33480 154228 Page 17 of 45 Pages 10 Lender: NationsBank, N.A. 5550 Friendship Boulevard Chevy Chase, Maryland 20815-7201 Attn: Jennifer Carey Bak With Copies To: Avram Glazer 18 Stoney Clover Lane Pittsford, N.Y. 14534 Gordon E. Forth, Esquire Woods, Oviatt, Gilman, Sturman & Clarke 44 Exchange Street Rochester, N.Y. 14614 or to such other address as any party may designate by written notice to all of the parties. Each such notice, request and demand shall be deemed given or made as follows: A. If sent by hand delivery, upon delivery; B. If sent by mail, upon the earlier of the date of receipt or five (5) days after receipt in the U.S. Mail, first class postage prepaid. 9. MISCELLANEOUS. Borrowers and Lender further covenant and agree as follows, without limiting any requirement of any other Financing Document except as provided in paragraph 9.F of this Agreement: A. EXPENSES. Borrowers agree to pay all out-of-pocket expenses of Lender, including but not limited to all reasonable attorney's fees and expenses, incurred in connection with the Financing Documents and the enforcement and collection of the Credit. B. CUMULATIVE RIGHTS AND NO WAIVER. Each and every right granted to Lender under any Financing Document, or allowed it by law or equity shall be cumulative of each other and may be exercised in addition to any and all other rights of Lender, and no delay in exercising any right shall operate as a waiver thereof, nor shall any single or partial exercise by Lender of any right preclude any other or future exercise thereof or the exercise of any other right. Borrowers expressly waive any presentment, demand, protest or other notice of any kind, including but not limited to notice of intent to accelerate and notice of acceleration. No notice to or demand on Borrowers in any case shall, of itself, entitle Borrowers to any other or future notice or demand in similar or other circumstances. C. APPLICABLE LAW. This Agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State in which 154228 Page 18 of 45 Pages 11 Lender is located as indicated by Lender's address in Section 8 of this Agreement and applicable United Stated federal law. D. AMENDMENT. No modification, consent, amendment or waiver of any provision of this Agreement, nor consent to any departure by Borrowers therefrom, shall be effective unless the same shall be in writing and signed by an Assistant Vice President or higher level officer of Lender, and then shall be effective only in the specific instance and for the purpose for which given. This Agreement is binding upon Borrowers, Borrowers' heirs, personal representatives, successors and assigns, and inures to the benefit of the Lender, its successors and assigns; however, no assignment or other transfer of Borrowers' rights or obligations hereunder shall be made or be effective without Lender's prior written consent nor shall it relieve Borrowers of any obligations hereunder. There is no third party beneficiary of this Agreement. The obligations of Borrowers hereunder shall be joint and several. E. DOCUMENTS. All documents, certificates and other items required under this Agreement to be executed and/or delivered to Lender shall be in form and content satisfactory to Lender and its counsel. F. COMPLIANCE WITH USURY LAWS. All existing and future agreements regarding the Credit are hereby limited so that in no event (including prepayment, default, demand for payment, or acceleration) shall the interest taken, reserved, contracted for, charged or received exceed the maximum nonusurious amount permitted by applicable law (the "Maximum Amount"); any document possibly to the contrary shall be automatically reformed and the interest payable automatically reduced to the Maximum Amount, without necessity of execution of any amendment or new document; if Lender ever receives interest in an amount which apart from this provision would exceed the Maximum Amount, the excess shall, without penalty, be applied to principal due at maturity or be refunded to the payor if the principal is paid in full; and all interest paid or agreed to be paid shall be spread throughout the full term (including extensions) of the debt so that the amount of interest does not exceed the Maximum Amount. G. PARTIAL INVALIDITY. A determination that any provision of any Financing Document is unenforceable or invalid shall not affect the enforceability or validity of any other provision and the determination that the application of any provision of any Financing Document to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstances. H. SURVIVABILITY. All covenants, agreements, representations, and warranties made herein or in the other Financing Documents shall survive the making of the Credit and 154228 Page 19 of 45 Pages 12 shall continue in full force and effect so long as the Credit is outstanding or the obligation of the Lender to make any advances under the Line shall not have expired. 10. WAIVER OF JURY TRIAL. BORROWERS WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH LENDER MAY BE A PARTY, ARISING OUT OF OR IN CONNECTION WITH OR IN ANY WAY PERTAINING TO THIS AGREEMENT OR THE LOAN DOCUMENTS. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTION OR PROCEEDINGS, INCLUDING CLAIMS AGAINST ANY PARTIES WHO ARE NOT PARTIES TO THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY BORROWERS. THIS WRITTEN AGREEMENT AND THE OTHER FINANCING DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS# OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. WITNESS: LENDER: NATIONSBANK, N.A. _______________________ By: S//JENNIFER CAREY BAK ------------------------- Jennifer Carey Bak Vice President WITNESS: BORROWERS: _______________________ S//MALCOLM I. GLAZER ------------------------- Malcolm I. Glazer, by Avram Glazer pursuant to Power of Attorney attached hereto and made a part hereof 154228 Page 20 of 45 Pages 13 THE MALCOLM GLAZER TRUST ________________________ S//MALCOLM I. GLAZER, TRUSTEE ----------------------------- Malcolm I. Glazer, Trustee by Avram Glazer pursuant to Power of Attorney attached hereto and made a part hereof STATE/COMMONWEALTH OF ____________, CITY/COUNTY OF _____________, TO WIT: I HEREBY CERTIFY, that on this ___ day of ______________, 1994, before me, the undersigned Notary Public of said State/Commonwealth, personally appeared Jennifer Carey Bak, who acknowledged herself to be a vice president of NationsBank, N.A., known to me (or satisfactorily proven) to be a person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained as the duly authorized vice president of said Bank by signing the name of the Bank by herself as vice president WITNESS my hand and Notarial Seal. ______________________________ Notary Public My Commission Expires: 154228 Page 21 of 45 Pages EX-99.10 3 $10,000,000.00 PROMISSORY NOTED DATED 11/14/94 1 Exhibit 10 PROMISSORY NOTE $10,000,000 Chevy Chase, Maryland November 14, 1994 FOR VALUE RECEIVED, MALCOLM I. GLAZER, a resident of the State of Florida and THE MALCOLM GLAZER TRUST, a trust created pursuant to agreement dated March 23, 1990 (collectively, the "Borrowers"), jointly and severally promise to pay to the order of NATIONSBANK, N.A. (the "Lender"), the principal sum of TEN MILLION DOLLARS ($10,000,000) (the "Principal Sum"), or so much thereof as has been or may be advanced or readvanced to or for the account of the Borrowers pursuant to the terms and conditions of the Credit Agreement (as hereinafter defined), together with interest thereon at the rate or rates hereinafter provided, in accordance with the following: 1. Interest. Commencing as of the date hereof and continuing until repayment in full of all sums due hereunder, the unpaid Principal Sum shall bear interest at the fluctuating prime rate of interest established and declared by the Lender from time to time (the "Prime Rate") per annum. The Prime Rate does not necessarily represent the lowest rate of interest charged by the Lender to Borrowers. The rate of interest charged under this Note shall change immediately and contemporaneously with any change in the Prime Rate. All interest payable under the terms 154228 Page 22 of 45 Pages 2 of this Note shall be calculated on the basis of a 360-day year and the actual number of days elapsed. 2. Payments and Maturity. The unpaid Principal Sum, together with interest thereon at the rate or rates provided above, shall be payable as follows: (a) Interest only on the unpaid Principal Sum shall be due and payable monthly, commencing December 1, 1994, and on the first day of each month thereafter to maturity; and (b) Unless sooner paid, the unpaid Principal Sum, together with interest accrued and unpaid thereon, shall be due and payable in full on October 1, 1995. The fact that the balance hereunder may be reduced to zero from time to time pursuant to the Credit Agreement will not affect the continuing validity of this Note or the Credit Agreement; and the balance may be increased to the Principal Sum after any such reduction to zero. 3. Default Interest. Upon the occurrence of an Event of Default (as hereinafter defined), the unpaid Principal Sum shall bear interest thereafter at a rate four percent (4%) per annum in excess of the then current rate or rates of interest hereunder until such Event of Default is cured. 4. Late Charges. If the Borrowers shall fail to make any payment under the terms of this Note within fifteen (15) days after the date such payment is due, the Borrowers shall pay to the Lender on demand a late charge equal to five percent (5%) of such payment. 154228 Page 23 of 45 Pages 3 5. Application and Place of Payments. All payments, made on account of this Note shall be applied first to the payment of any late charge then due hereunder, second to the payment of accrued and unpaid interest then due hereunder, and the remainder, if any, shall be applied to the unpaid Principal Sum. All payments on account of this Note shall be paid in lawful money of the United States of America in immediately available funds during regular business hours of the Lender at its principal office in Bethesda, Maryland or at such other times and places as the Lender may at any time and from time to time designate in writing to the Borrowers. 6. Prepayment. The Borrowers may prepay the Principal Sum in whole or in part without premium or penalty. 7. Credit Agreement and Other Financing Documents. This Note is the "Note" described in a Credit Agreement of even date herewith by and between the Borrowers and the Lender (as amended, modified, restated, substituted, extended and renewed at any time and from time to time, the "Credit Agreement"). The indebtedness evidenced by this Note is included within the meaning of the term "Obligations" as defined in the Credit Agreement. The term "Financing Documents" as used in this Note shall mean collectively this Note, the Credit Agreement and any other instrument, agreement, or document previously, simultaneously, or hereafter executed and delivered by the Borrowers and/or any other person, singularly or jointly with any other person, 154228 Page 24 of 45 Pages 4 evidencing, securing, guaranteeing, or in connection with the Principal Sum, this Note and/or the Credit Agreement. 8. Events of Default. The occurrence of any one or more of the following events shall constitute an event of default (individually, an "Event of Default" and collectively, the "Events of Default") under the terms of this Note: (a) The failure of the Borrowers to pay to the Lender when due any and all amounts payable by the Borrowers to the Lender under the terms of this Note; or (b) The occurrence of an event of default (as defined therein) under the terms and conditions of any of the other Financing Documents. 9. Remedies. Upon the occurrence of an Event of Default at the option of the Lender, all amounts payable by the Borrowers to the Lender under the terms of this Note shall immediately become due and payable by the Borrowers to the Lender without notice to the Borrowers or any other person, and the Lender shall have all of the rights, powers, and remedies available under the terms of this Note, any of the other Financing Documents and all applicable laws. The Borrowers and all endorsers, guarantors, and other parties who may now or in the future be primarily or secondarily liable for the payment of the indebtedness evidenced by this Note hereby severally waive presentment, protest and demand, notice of protest, notice of demand and of dishonor and non-payment of this Note and expressly agree that this Note or any payment hereunder may be extended from time to time without 154228 Page 25 of 45 Pages 5 in any way affecting the liability of the Borrowers, guarantors and endorsers. 10. Confessed Judgment. Upon the occurrence of an Event of Default, the Borrowers hereby authorize any attorney designated by the Lender or any clerk of any court of record to appear for the Borrowers in any court of record and confess judgment without prior hearing against the Borrowers in favor of the Lender for and in the amount of the unpaid Principal Sum, all interest accrued and unpaid thereon, all other amounts payable by the Borrowers to the Lender under the terms of this Note or any of the other Financing Documents, costs of suit, and attorneys' fees of fifteen-percent (15%) of the unpaid Principal Sum and interest then due hereunder. The Borrowers hereby release, to the extent permitted by applicable law, all errors and all rights of exemption, appeal, stay of execution, inquisition, and other rights to which the Borrowers may otherwise be entitled under the laws of the United States of America or of any state or possession of the United States of America now in force and which may hereafter be enacted. The authority and power to appear for and enter judgment against the Borrowers shall not be exhausted by one or more exercises thereof or by any imperfect exercise thereof and shall not be extinguished by any judgment entered pursuant thereto. Such authority may be exercised on one or more occasions or from time to time in the same or different jurisdictions as often as the Lender shall deem necessary or 154228 Page 26 of 45 Pages 6 desirable, for all of which this Note shall be a sufficient warrant. 11. Expenses. The Borrowers promise to pay to the Lender on demand by the Lender all costs and expenses incurred by the Lender in connection with the collection and enforcement of this Note, including, without limitation, reasonable attorneys' fees and expenses and all court costs. 12. Notices. Any notice, request, or demand to or upon the Borrowers or the Lender shall be deemed to have been properly given or made when delivered in accordance with Paragraph 8 of the Credit Agreement. 13. Miscellaneous. Each right, power, and remedy of the Lender as provided for in this Note or any of the other Financing Documents, or now or hereafter existing under any applicable law or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for in this Note or any of the other Financing Documents or now or hereafter existing under any applicable law, and the exercise or beginning of the exercise by the Lender of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by the Lender of any or all such other rights, powers, or remedies. No failure or delay by the Lender to insist upon the strict performance of any term, condition, covenant, or agreement of this Note or any of the other Financing Documents, or to exercise any right, power, or remedy consequent upon a breach thereof, shall constitute a 154228 Page 27 of 45 Pages 7 waiver of any such term, condition, covenant, or agreement or of any such breach, or preclude the Lender from exercising any such right, power, or remedy at a later time or times. By accepting payment after the due date of any amount payable under the terms of this Note, the Lender shall not be deemed to waive the right either to require prompt payment when due of all other amounts payable under the terms of this Note or to declare an Event of Default for the failure effect such prompt payment of any such other amount. No course of dealing or conduct shall be effective to amend, modify, waive, release, or change any provisions of this Note. 14. Partial Invalidity. In the event any provision of this Note (or any part of any provision) is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision (or remaining part of the affected provision) of this Note; but this Note shall be construed as if such invalid, illegal, or unenforceable provision (or part thereof) had not been contained in this Note, but only to the extent it is invalid, illegal, or unenforceable. 15. Captions. The captions herein set forth are for convenience only and shall not be deemed to define, limit, or describe the scope or intent of this Note. 16. Applicable Law. The Borrowers acknowledge and agree that this Note shall be governed by the laws of the State of 154228 Page 28 of 45 Pages 8 Maryland, even though for the convenience and at the request of the Borrowers, this Note may be executed elsewhere. 17. Consent to Jurisdiction. The Borrowers irrevocably submit to the jurisdiction of any state or federal court sitting in the State of Maryland over any suit, action, or proceeding arising out of or relating to this Note or any of the other Financing Documents. The Borrowers irrevocably waive, to the fullest extent permitted by law, any objection that the Borrowers may now or hereafter have to the laying of venue of any such suit, action, or proceeding brought in any such court and any claim that- any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum. Final judgment in any such suit, action, or proceeding brought in any such court shall be conclusive and binding upon the Borrowers and may be enforced in any court in which the Borrowers are subject to jurisdiction by a suit upon such judgment, provided that service of process is effected upon the Borrowers as provided in this Note or as otherwise permitted by applicable law. 18. Service of Process. The Borrowers hereby irrevocably designate and appoint Joel Glazer, 7701 Woodmont Avenue, Bethesda, Maryland 20814, as the Borrowers's authorized agent to receive on the Borrowers' behalf service of any and all process that may be served in any suit, action, or proceeding instituted in connection with this Note in any state or federal court sitting in the State of Maryland. If such agent shall cease so to act, the Borrowers shall irrevocably designate and appoint 154228 Page 29 of 45 Pages 9 without delay another such agent in the State of Maryland satisfactory to the Lender and shall promptly deliver to the Lender evidence in writing of such agent's acceptance of such appointment and its agreement that such appointment shall be irrevocable. The Borrowers hereby consent to process being served in any suit, action, or proceeding instituted in connection with this Note by serving a copy thereof upon the agent hereinabove designated and appointed by the Borrowers as the Borrowers' agent for service of process. The Borrowers irrevocably agree that such service shall be deemed in every respect effective service of process upon the Borrowers in any such suit, action or proceeding, and shall, to the fullest extent permitted by law, be taken and held to be valid personal service upon the Borrowers. Nothing in this Section shall affect the right of the Lender to serve process in any manner otherwise permitted by law or limit the right of the Lender otherwise to bring proceedings against the Borrowers in the courts of any jurisdiction or jurisdictions. 19. WAIVER OF TRIAL BY JURY. THE BORROWERS HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE BORROWERS OR EITHER OF THEM, AND THE LENDER MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS NOTE OR (B) THE FINANCING DOCUMENTS. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS NOTE. 154228 Page 30 of 45 Pages 10 THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE BORROWERS, AND THE BORROWERS HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THE BORROWERS FURTHER REPRESENT THAT THEY HAVE BEEN REPRESENTED IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. IN WITNESS WHEREOF, the Borrowers have caused this Note to be executed under seal as of the date first written above. WITNESS: THE MALCOLM GLAZER TRUST __________________________ By: S//MALCOLM GLAZER, TRUSTEE ----------------------------- MALCOLM I. GLAZER, TRUSTEE by Avram Glazer, Pursuant to Power of Attorney attached hereto and made a part hereof 154228 Page 31 of 45 Pages EX-99.11 4 ESCROW DEPOSIT AGREEMENT DATED 11/2/94 1 Exhibit 11 ESCROW DEPOSIT AGREEMENT November 2, 1994 Wertheim Schroder & Co. Incorporated The Equitable Center 787 Seventh Avenue New York, New York 10019-6016 Attention: Michael Dura, Managing Director Re: Envirodyne Industries, Inc. ("Company") Gentlemen: Reference is hereby made to a letter agreement dated as of August 16, 1994 (the "Letter Agreement"), between THE MALCOLM I. GLAZER TRUST ("Purchaser") and The Argosy Securities Group, L.P. ("Seller") pursuant to which Purchaser agreed to purchase from Seller and Seller agreed to sell to Purchaser 577,738 shares of the Company's common stock, par value $0.01 per share ("Original Shares"), at a net price of $5.165 per share on the terms and conditions therein, as amended and modified hereby. On October 12, 1994 and as permitted in the Letter Agreement, Seller sold 288,500 Original Shares (the "Retained Shares") which have a net purchase price of $1,493,914. Seller and Purchaser hereby agree to change the September 26, 1994 reference in the Letter Agreement to 12:00 p.m. on November 18, 1994 (the "Notice Time"). Terms defined in the Letter Agreement not otherwise defined herein have the meanings assigned to them in the Letter Agreement. Purchaser and Seller desire to open and maintain an escrow deposit account (the "Escrow Account") on the terms and conditions contained herein with WERTHEIM SCHRODER & CO. INCORPORATED ("Escrow Agent" or "you"). The Escrow Agent agrees to open an Escrow Account which shall be governed by the terms and conditions of this letter agreement (the "Agreement"). Accordingly, in consideration of the premises and the mutual covenants and undertakings contained herein, the parties hereto, intending to be legally bound hereby, agree as follows: Section 1. Deposit. (a) For a period commencing as of the date hereof and terminating on the Termination Date (hereinafter defined in Section 5), you agree to act as depository and escrow agent and to receive and disburse certain stock certificates and undated stock powers executed in blank as described in Section 1(b) 154228 Page 32 of 45 Pages 2 below, and income (including proceeds, if any on the sale of Retained Shares and/or Zapata Shares as defined below in this Section 1(a)) and Distributions (as defined below in this Section 1(a)), if any, thereon (collectively the "Escrow Assets") all in accordance with the provisions of this Agreement. Further, you agree to accept at any time after the date hereof any distributions of cash or property ("Distributions") made with respect to the Retained Shares or Zapata Shares (as defined in Section 1(b)) after the date hereof other than ordinary cash dividends on the Zapata Shares, which dividends shall be retained by and be the property of Purchaser. (b) Simultaneously with the execution of this Agreement, Seller has deposited or caused to be deposited with you in the Escrow Account, the Escrow Documents identified on attached Schedule I (collectively "Seller's Escrow Documents"), and Purchaser has deposited or caused to be deposited with you the documents identified on attached Schedule II which documents include 1,000,000 shares of common stock, $.25 par value, of Zapata Corporation (the "Zapata Shares"), ("Purchaser's Escrow Deposit"). The Escrow Agent hereby acknowledges receipt of the Escrow Assets identified on Schedules I and II. (c) So long as the net purchase price due Seller under the Letter Agreement for the Retained Shares and Purchaser's obligation under Section 6 have not been paid in full, Seller shall be entitled to exercise all voting and other consensual rights pertaining to Seller's Escrow Documents or any part thereof for any purpose. Upon and after Seller's receipt of the net purchase price for the Retained Shares and the discharge of all Purchaser's obligations under Section 6, prior to the receipt of Seller's Termination Notice (as defined in Section 3(c) below), the rights of Seller to exercise any voting or other consensual rights which it would otherwise be entitled to exercise with respect to the Retained Shares shall cease, and Seller shall be deemed to have granted Purchaser an irrevocable proxy coupled with an interest to have the sole right to exercise voting and other consensual rights with respect to the Retained Shares. (d) So long as the Zapata Shares have not been sold by the Escrow Agent in accordance with Section 2, Purchaser shall be entitled to (i) exercise all voting and other consensual rights pertaining to the Zapata Shares or any part thereof for any purpose and (ii) to receive and retain all ordinary cash and dividends made with respect to the Zapata Shares. Section 2. Disbursements. (a) Notwithstanding anything herein or elsewhere to the contrary, upon receipt, prior to the date Seller gives Seller's Termination Notice, of a written certificate executed by 154228 Page 33 of 45 Pages 3 Purchaser that the expiration or earlier termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 ("HSR Act") has occurred in respect of the purchase of the Retained Shares and a certificate from Seller to the effect that Seller has received the net purchase price for the Retained Shares and the amount, if any, owed under Section 6 ("Payment Certificate"), the Escrow Agent shall immediately disburse (i) to Purchaser the Escrow Assets (other than ordinary regular cash Distributions in respect of the Retained Shares), and (ii) to Seller such ordinary regular cash Distributions. (b) On or after the Notice Time, the following provisions shall apply if the certificates required under Section 2(a) have not been delivered to the Escrow Agent prior to such time: (i) Upon receipt of a certificate executed by Seller having attached thereto Seller's Termination Notice stating that no monies are owed by Purchaser to Seller under Section 6, or a certificate executed by Purchaser having attached thereto a Purchaser's Termination Notice (as defined below in Section 3(f)) the Escrow Agent shall promptly return (x) the Retained Shares and Distributions thereon to Seller and (y) the Purchaser's Escrow Deposit and Distributions thereon to Purchaser. Seller shall be under no obligation to deliver the aforesaid certificate contemplated for Seller. (ii) Upon receipt of a certificate executed by Seller having attached thereto Seller's Termination Notice and stating therein that (u) Purchaser owes Seller monies under Section 6 that have not been paid and (v) Seller has elected not to sell any Retained Shares, then Escrow Agent shall (2) prior to the receipt of Purchaser's Termination Notice, sell as many Zapata Shares as are necessary to satisfy the amounts owned by Purchaser to Seller under Section 6, as evidenced by such certificate and such additional amounts as may be so owed after the date of such certificate through the last date on which a sufficient number of Zapata Shares have been sold, as evidenced by a Section 6 Certificate delivered by Seller to Escrow Agent and Purchaser, (x) disburse to Seller from the net proceeds of such sales the amount owed stated in the Seller's certificates to be owed to Seller by Purchaser under Section 6, (y) disburse to Seller all retained Shares and all Distributions thereon and (z) upon disbursement in full of the amount stated to be so owed to Seller, disburse any excess net proceeds from such sales together with the remaining Purchaser's Escrow Deposit and Distributions thereto to Purchaser. Seller shall be under no obligation to deliver the aforesaid certificate. (iii) Upon receipt of a certificate executed by Seller having attached thereto Seller's Termination Notice and stating that (u) Purchaser owes Seller monies under Section 154228 Page 34 of 45 Pages 4 6 which have not been paid and/or (v) Seller has elected to sell a specified number (which number can be expressed as a formula), of Retained Shares, then Escrow Agent shall (2) first, sell such number of Retained Shares, (x) second, sell Zapata Shares prior to the receipt of Purchaser's Termination Notice if the per share price ("Per Share Price") obtained for the Retained Shares sold, after reduction for brokerage commission ("Net Per Shares Price"), is less than $5.165 (such price to be adjusted for stock splits, stock dividends and the like) to the extent of such deficiency and to extent of the amount owed by Purchaser to Seller under Section 6 as specified in such certificate and/or may thereafter be specified in a Section 6 Certificate for amounts owed through the lst day on which a sufficient number of Zapata Shares have been sold and (y) disburse (A) any unsold Retainer Shares (and all Distributions thereon) to Seller, (B) the net proceeds from the sale of the Retained Shares pursuant to (iii) (w) above to Seller, and (C) upon disbursement in full of such amount to Seller, the remaining Purchaser's Escrow Deposit and Distributions thereon to Purchase. Seller shall be under no obligation to deliver the aforesaid certificate. (iv) Upon receipt of a certificate executed by Seller having attached thereto Seller's Closing Notice and stating that the waiting period under the HSR Act has expired or terminated and that the net purchase price due under the Letter Agreement for the Retained Shares has not been paid, then the Escrow Agent shall (y) sell as many of the Zapata Shares as may be necessary such that after completion of such sales the Net Per Share Price when multiplied by the number of Zapata Shares so sold is at least equal to the sum of (A) the net purchase price due for the Retained Shares (or such lesser amount as may be obtained by the sale of all the Zapata Shares) and (B) such amount as may be owed Seller under Section 6 below, as evidenced by the amount set forth in the Seller's Closing Notice or in any thereafter delivered Section 6 Certificate (for amounts owed through the lst day on which a sufficient number of Zapata Shares have been sold) and (z) disburse (A) the net proceeds from such sales to Seller, (B) upon receipt of a certificate executed by Seller stating that it has received payment in full of the purchase price for the Retained Shares and amounts owed under Section 6, the remaining Escrow Assets (which shall include, without limitations, the Retained Shares to Purchaser). Notwithstanding anything else in this Section 2, or any certificate or instruction previously received to the contrary, upon receipt of a Payment Certificate, the Escrow Agent shall immediately cease to sell any remaining Zapata Shares and shall distribute any net proceeds received after delivery of such Payment Certificate from the Zapata Shares to Purchaser. 154228 Page 35 of 45 Pages 5 (v) Upon receipt of a certificate executed by Purchaser on or after the expiry of a period commencing on the Notice Time and ending after the expiry of 90 days thereafter plus such additional number of days at any time during which, through the action of Purchaser (including the existence of black-out periods under the SLA referred to in Section 2(c) below or the failure of any registration statement referred to in the SLA to remain effective), the Zapata Shares (in the case of Section 2(b)(ii) or 2(b)(iv) hereof) or either the Zapata Shares or the Retained Shares in the case of Section 2(b)(iii) hereof could not be sold (the "Sale Period") having attached thereto Purchaser's Termination Notice (hereinafter defined in Section 3(f)), stating therein that it has elected to terminate the Letter Agreement and a certificate form Seller that no amounts are owed it under Section 6, the Escrow Agent shall promptly return (x) the Retained Shares and Distributions thereon to Seller and (y) the Purchaser's Escrow Deposit and Distributions thereon, if any, to Purchaser. Purchaser and Seller agree that (A) the Escrow Agent is authorized to conduct such sales of the Retained Shares and the Zapata Shares to satisfy Purchaser's obligation to Seller, (B) sales of the Zapata Shares are for the account of Purchaser and are not being made by Seller or the Escrow Agent who will have no responsibility with respect thereto and sales of the Retained Shares are for the account of Seller and are not being made by Purchaser or Escrow Agent who will have no responsibility thereto. All sales of shares hereunder shall be in unsolicited agency transactions. The Escrow Agent shall provide a weekly report to Purchaser and Seller accounting for all sales of Retained Shares and Zapata Shares. Seller shall be entitled to any monies recognized as the result of markdowns made on all such sales of Retained Shares and Zapata Shares, in accordance with markdown procedures described under the Rules of Fair Practice of the NASD by-laws. (c) Notwithstanding any certificates or instructions to the contrary, the parties hereto acknowledge and agree that the Zapata Shares are subject to a Securities Liquidity Agreement dated as of December 19, 1990 among Zapata and certain of its stockholders ("SLA") and that under the SLA the sale of Zapata Shares may be prohibited during certain black-out periods. The parties agree to observe at all times any such black-out periods of which Escrow Agent receives notice and to not sell any Zapata Shares during such period. Purchaser represents and warrants to Seller that: (i) to the best of its knowledge, (x) it has provided Seller with a true and correct copy of the SLA; and (y) there are no amendments to the SLA; (ii) the Zapata Shares are owned by Purchaser, free and clear of all liens, claims and encumbrances (collectively, "Liens" and are not subject to any 154228 Page 36 of 45 Pages 6 restriction on transfer, whether by way of operation of law or otherwise (other than pursuant to the SLA), or the exercise of any rights in respect thereof; and (iii) that the sale of the Zapata Shares is covered by an effective Shelf Registration Statement pursuant to the SLA. Purchaser agrees that (iv) until the Termination Date, it will not, without Sellers' prior written consent, permit the SLA to be amended in a manner which is adverse to Seller's rights herein or in the Letter Agreement; and (v) it shall promptly upon request of Seller or Escrow Agent deliver to them such number of copies of the prospectus in respect of such Shelf Registration Statement as may be reasonably required by them. Seller hereby represents and warrants to Purchaser that it owns the Retained Shares, free and clear of all Liens. (d) The trust impressed upon the Escrow Assets by reason of this Agreement shall in all cases cease and all Escrow Assets shall be free of such trust upon being disbursed in accordance with this Section 2. (e) Purchaser and Seller shall each give the other copies of all certificates, notices and instructions either shall give to the Escrow Agent pursuant to this Agreement at the same time they are given to the Escrow Agent. Section 3. Certain Covenants. (a) Purchaser and Seller agree that they will not (i) sell or otherwise dispose of, or grant any option with respect to, any of the Escrow Assets other than as provided in Section 2 hereof, (ii) create or permit to exist any lien or encumbrance upon or with respect to any of the Escrow Assets, or (iii) take any action or permit any action to be taken that would invalidate or restrict the transfers contemplated under the Letter Agreement of any certificates or instruments representing or evidencing any or all of Seller's Escrow Documents. (b) Purchaser shall promptly forward to Seller copies of any written confirmation which it receives from the Federal Trade Commission that the waiting period under the HSR Act has terminated or expired. (c) If Purchaser has not paid to Seller the net purchase price due for the Retained Shares as of the Notice Time, then as of and after such time (and not at any time before such time), Seller may: (i) Elect at any time (unless the Letter Agreement has been previously terminated) to terminate Purchaser's right to purchase the Retained Shares under the Letter Agreement by giving Purchaser written notice ("Seller's Termination Notice") thereof. In such event, Seller shall determine the amount, if any, which may be owed to it under Section 6 154228 Page 37 of 45 Pages 7 below and set forth such amount in Seller's Termination Notice together with wire instructions for payment of such amount by Purchaser (including ABA account and routing numbers) and the number of Retained Shares (as contemplated by Section 2(b)(iii) hereof), if any, which it elects to have the Escrow Agent sell. In addition, Seller shall attach to Seller's Termination Notice calculations and documentation supporting the amount which Seller has determined Purchaser to owe Seller under Section 6. Seller agrees not to deliver a certificate to Escrow Agent with instructions to take the actions contemplated under Sections 2(b)(ii) or (iii) unless it first complies with the requirements of this Section 3(c)(i). (ii) Elect, on or after the date on which it receives notice that the HSR Act waiting period has expired or terminated, to close the purchase and sales of the Retained Shares by giving written notice ("Seller's Closing Notice" thereof to Purchaser and stating therein (x) the closing date, which shall be within two business days after delivery of the Seller's Closing Notice, and (y) the amount owed to Seller under Section 6 below. In addition, Seller shall attach to Seller's Termination Notice calculations and documentation supporting the amount which Seller has determined Purchaser to owe Seller under Section 6. Seller agrees not to deliver a certificate to Escrow Agent with instruction to take the actions contemplated under Section 2(b)(iv) unless it first complies with the requirement of this Section 3(c)(ii). (d) Seller may only give one written notice (i.e., Seller's Termination Notice or Seller's Closing Notice) as of or after the Notice Time as to whether it has elected to proceed with the purchase and sale transaction, or to terminate Purchaser's right to purchase Retained Shares, contemplated under the Letter Agreement and may not give any such notice if Purchaser's Termination Notice has been given. When given, any such notice by Seller shall be irrevocable and shall bind Seller unless otherwise agreed in writing by Seller and Purchaser. (e) Immediately after Seller's receipt of payment in full of the purchase price for the Retained Shares and the amounts owed Seller by Purchaser under Section 6 if any (whether as a result of payments from Purchaser or disbursements from Escrow Agent). Seller shall deliver a Payment Certificate to the Escrow Agent to such effect. (f) If the purchase and sale of the Retained Shares has not closed or the disbursements otherwise contemplated by the applicable provisions of Section 2 hereof have not occurred after the expiry of the Sale Period, then Purchaser may terminate the Letter Agreement as of and after such date by giving written 154228 Page 38 of 45 Pages 8 notice ("Purchaser's Termination Notice") thereof to Seller. Purchaser shall not deliver Purchaser's Termination Notice before the expiry of the Sale Period. Simultaneously with giving such notice, Purchaser shall execute and deliver to the Escrow Agent a certificate stating that actions which it has taken in such regard. After receiving Purchaser's Termination Notice, Seller shall advise Purchaser in writing of the amount, if any, which is owed pursuant to Section 6. Immediately after Seller's receipt of payment in full of all amounts owed Seller by Purchaser under Section 6, Seller shall execute and deliver a certificate to the Escrow Agent to such effect. Section 4. Tax Liability of Parties. All taxable income and loss on sales of Retained Shares or Zapata Shares by the Escrow Agent shall be for Seller's or Purchaser's account, respectively. Section 5. Effect of Final Disbursements. Upon complete distribution of the Escrow Assets, as provided for in Section 2, this Agreement shall terminate (the date upon which such actions are completed being herein referred to as the "Termination Date") and you will be relieved of any further duties and responsibility in connection therewith. Section 6. Purchaser's Payments. Purchaser has paid to Seller today $57,500.00 representing all finance, escrow, and legal charges related to this Agreement and the Letter Agreement through November 15, 1994. Purchaser shall have no obligation to Seller whatsoever to reimburse, pay or otherwise be liable to Seller (or any other party) for any such cost or expense arising prior to or attributable to any time before November 15, 1994 whether in connection with the sale of 288,500 of the Original Shares or otherwise. Notwithstanding the immediately preceding sentence, Purchaser shall promptly pay to Seller (a) all out-of-pocket costs and expenses of Seller (including, without limitation, all legal fees and disbursements) arising from (i) any dispute in respect of this Agreement or the Letter Agreement, whenever such costs and expenses arise if Seller prevails in such dispute, and (ii) any litigation involving any third party in connection with this Agreement, the letter Agreement, Purchaser's purchaser of securities of the Company or the transaction contemplated hereby or thereby and (b) all Seller's finance charges and its actual out- of-pocket expense (including, without limitation, reasonable fees and disbursements of counsel), reasonably and whenever incurred by Seller after November 15, 1994 in connection with all other matters related to this Agreement. On the first business day of each calendar week, commencing on November 21, 1994, Purchaser shall pay to Seller an amount, in immediately available funds, equal to Seller's finance charges (which are equal to the Broker's Call Rate), with respect to each share held at any time in the Escrow Account for and during the immediately preceding calendar week. The Broker's 154228 Page 39 of 45 Pages 9 Call Rate shall be Seller's Broker's Call Rate in effect for the time in respect of which payment hereunder is computed. Seller may at any time, and shall at any time after November 15, 1994 if so requested to do so by Purchaser, deliver to Purchaser and Escrow Agent a certificate (a "Section 6 Certificate") describing in reasonable detail amounts which may at the time be owing Seller pursuant to this Section 6. Section 7. Expenses of Escrow Agent. For your services as Escrow Agent and depository under this Agreement, as compensation for all services performed, Seller shall pay to you a fee of $5,000 ("Escrow Fee") at or about the time of execution of this Agreement, Seller will reimburse you for actual out-of-pocket expenses. Reimbursable expenses include, without limitation, fees and disbursements of counsel reasonably incurred in connection with the negotiation, execution, delivery, amendment (if any) and enforcement of this Agreement and with the established and routing administration of the Escrow Account. Such fees and expenses incurred to date will be paid upon execution of this Agreement and all other subsequent expenses will be paid within five days of the Termination Date. The brokerage commission for any shares of stock sold pursuant to the terms hereof shall be $.05 per share, subject to adjustments for stock splits, etc. Section 8. Limitation of Liability. (a) It is understood and agreed that you will have no duties or responsibilities other than those set forth herein and will: (i) Be under no duty to accept Escrow Documents or Escrow Deposits from anyone other than Seller or Purchaser (or their agents) or to give any receipt therefor except to Seller. (ii) Be protected in acting upon any notice, certificate, approval, consent or other paper reasonably believed by you to be genuine, signed by the proper party or parties and in accordance with the terms of this Agreement and may, without limiting the generality of the foregoing disregard any and all notices and warnings given by any other person, except only orders, judgments or decrees of any court (with which you are hereby authorized to comply) notwithstanding that any such order, judgment, or decree is subsequently reversed, modified, annulled, set aside or vacated, or found to have been entered without jurisdiction. (iii) Be deemed conclusively to have given and delivered any notice, request, claim, demand or 154228 Page 40 of 45 Pages 10 other communication hereunder if the same is in writing and is given (and, except as otherwise provided in this Agreement, shall be deemed to have been duly delivered if so given) if delivered in person or sent by fax, or sent by a reputable overnight courier service to the respective parties as follows: If to Purchaser: Malcolm I. Glazer 1482 South Ocean Boulevard Palm Beach, Florida 33480 With Copies to: Woods, Oviatt, Gilman, Sturman & Clarke 44 Exchange Street Rochester, New York 1461 Attention: Mr. Gordon E. Forth, Esq. and Mr. Avram Glazer 18 Stoney Clover Lane Pittsford, New York 14534 If to Seller: The Argosy Securities Group 1125 Avenue of the Americas 22nd Floor New York, New York 10019 Attention: Mr. Neal Thomas With a copy to: Willkie Farr & Gallagher One Citicorp Center 153 East 53rd Street New York, New York 10022-4677 Attention: Mr. Laurence D. Weltman, Esq. or such other address as any such party may have furnished to the other parties in writing in accordance herewith, except that notices of change of address shall only be effective upon receipt. (b) The Escrow Agent, at its sole option, is authorized to deposit the Escrow Assets, into court pursuant to 154228 Page 41 of 45 Pages 11 any relevant statute and commence an action in interpleader, in order to obtain a judicial determination as to the party legally entitled to receive the same. (c) The Escrow Agent shall not be responsible or liable to any person, whether or not a party to this Agreement, for any act or omission of any kind so long as it has acted in good faith upon the instructions herein contained or hereafter delivered to it, except that the Escrow Agent shall be responsible and liable for acts or omissions resulting from the Escrow Agent's willful misconduct or gross negligence. Nothing herein contained shall be deemed to impose upon the Escrow Agent any duty to exercise discretion, it being the intention hereof that the Escrow Agent shall not be obligated to act except upon written instructions or directions. (d) The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, and shall not be liable for any mistake of fact or error of judgment or for any actions or omissions of any kind unless caused by willful misconduct or gross negligence. (e) The Escrow Agent may resign at any time upon prior written notice to Purchaser and Seller. Seller and Purchaser, if they agree, may remove the Escrow Agent at any time, upon prior written notice to the Escrow Agent. In the case of the Escrow Agent's resignation, its only duty until a successor escrow agent shall have been appointed and shall have accepted such appointment shall be to hold and disburse the Escrow Assets in accordance with the provisions contained in this Agreement. Section 9. Notices to Parties. All notices, requests, claims, demands and other communications hereunder to the Parties hereto shall be in writing and shall be given (and, except as otherwise provided in this Agreement, shall be deemed to have been duly delivered if so given), if delivered in person, by fax, or sent by a reputable overnight courier service to such party at the address set forth below or to such other address as such party may have furnished to the other parties in writing in accordance herewith, except that notices of change of address shall only be effective upon receipt. Section 10. Miscellaneous. This Agreement is a personal one among the parties hereto and no party hereto may assign or attempt to assign this Agreement or any interest or right herein without the consent of the other parties hereto. Nothing in this Agreement is intended to or will confer upon any person other than the parties hereto any legal or equitable right, remedy or claim. This Agreement will be construed in accordance with the internal laws of the State of new York without giving effect to the parties of conflict of laws thereof. This Agreement may be 154228 Page 42 of 45 Pages 12 amended or modified only by an instrument signed by Purchaser, the Escrow Agent and Seller. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. This Agreement may be executed by facsimile signature transmitted to any other party by electronic transmission. The parties shall be bound by a facsimile signature once transmitted to another party. The later transmission of an originally executed copy of any such document shall not invalidate any signature previously given by electronic transmission. Except as specifically herein provided, the Letter Agreement shall remain in full force and effect. If the foregoing terms and conditions are satisfactory to you, please so indicate by executing in the space provided below and returning two copies of this letter to the undersigned. Very truly yours, Purchaser: THE MALCOLM GLAZER TRUST Dated: November 2, 1994 By: S// MALCOLM I. GLAZER, TRUSTEE --------------------------------- Malcolm I. Glazer, Trustee 1482 South Ocean Boulevard Palm Beach, Florida 33480 Seller: THE ARGOSY SECURITIES GROUP, L.P. Dated: November 2, 1994 By: S//NEAL THOMAS --------------------------------- Name: Neal Thomas Title: Chief Operating Officer 1125 Avenue of the Americas 22nd Floor New York, New York 10019 Escrow Agent: WERTHEIM SCHRODER & CO. INCORPORATED Dated: November 2, 1994 By: S// MICHAEL DURA --------------------------------- Name: Michael Dura Title: Managing Director The Equitable Center 787 Seventh Avenue New York, New York 10019-60616 154228 Page 43 of 45 Pages 13 SCHEDULE I TO ESCROW DEPOSIT AGREEMENT Seller's 289,238 shares of Envirodyne Industries, Inc. common stock, par value $0.01 per share, ("Retained Shares") are currently held in uncertificated form and identified by computer entries on the books of Cede & Company ("Financial Intermediary") indicating the Seller to be the beneficial owner thereof. The Seller has notified the Financial Intermediary of the establishment of the Escrow Account and requested that the Retained Shares be registered on the books of the Financial Intermediary, at the Seller's expense, in the name of the Escrow Agent. The Seller hereby authorizes the Financial Intermediary to accept without question the Escrow Agent's exercise of any rights with respect to the Retained Shares and shall have no liability to the Seller in doing so. The Seller hereby acknowledges and agrees that the Financial Intermediary may rely on the statements made and authorization given hereby. 154228 Page 44 of 45 Pages 14 SCHEDULE II TO ESCROW DEPOSIT AGREEMENT 1. The following share certificates aggregating 1,000,000 shares of Zapata Corporation common stock, par value $0.25 per share: (a) Certificate no. ZC3888 representing 500,000 Shares registered in the name of The Malcolm Glazer Trust. (b) Certificate No. ZC3880 representing 500,000 Shares registered in the name of The Malcolm Glazer Trust. 2. Undated Stock Power executed in blank by Malcolm I. Glazer, as Trustee for The Malcolm Glazer Trust U/A dated as of March 23, 1990 for Certificate No. ZC3888 and Undated Stock Power executed in blank by Malcolm I. Glazer, as trustee for The Malcolm I. Glazer Trust U/A dated as of March 23, 1990 for Certificate No. ZC3889. 154228 Page 45 of 45 Pages -----END PRIVACY-ENHANCED MESSAGE-----