August 8, 2006
August
8,
2006
ARAMARK
Corporation
0000
Xxxxxx Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
Ladies
and Gentlemen:
This
Letter Agreement is being delivered by CCMP Capital Investors II, L.P. (the
“Investor”)
to
ARAMARK Corporation, a Delaware corporation (the “Company”),
in
connection with the execution of that Agreement and Plan of Merger, dated as
of
the date hereof (as it may be amended from time to time, the “Merger
Agreement”),
between RMK Acquisition Corporation, a Delaware corporation (“MergerCo”),
RMK
Finance LLC, a Delaware limited liability company (“SibCo”),
and
the Company, pursuant to which MergerCo will merge into the Company. The
Investor and the Company hereby agree as follows:
1. OBLIGATIONS.
To
induce the Company to enter into the Merger Agreement, the Investor hereby
absolutely, unconditionally and irrevocably guarantees to the Company, on the
terms and conditions set forth herein, the payment obligations of MergerCo
under
the third-to-last and next-to-last sentences of Section 5.14(a), the last two
sentences of Section 5.15, Section 7.6(c) and the second sentence of 7.6(d)
of
the Merger Agreement (the “Obligations”);
provided
that the
maximum amount payable by the Investor hereunder shall not exceed $15,000,000
(the “Investor
Cap”;
the
Obligations, as limited by the Investor Cap, the “Merger
Agreement Obligations”),
it
being understood that the Company will not seek to enforce this Letter Agreement
without giving effect to the Investor Cap. In furtherance of the foregoing,
the
Investor acknowledges that the Company may, in its sole discretion, bring and
prosecute a separate action or actions against the Investor for the full amount
of the Merger Agreement Obligations, regardless of whether action is brought
against MergerCo pursuant to the last sentence of Section 10(a) of this Letter
Agreement or any other guarantor pursuant to a letter agreement of similar
purpose and effect dated as of the date hereof to be entered into between the
Company and such other guarantor (the “Other
Investors”),
whether MergerCo or any Other Investors are joined (to the extent permitted
by
Section 10(a)) in any such action or actions or whether MergerCo or Other
Investors were primarily responsible for causing the payment obligations of
MergerCo under the Merger Agreement.
2. NATURE
OF THE OBLIGATIONS.
The
Company shall not be obligated to file any claim relating to the Obligations
in
the event that MergerCo becomes subject to a bankruptcy, reorganization or
similar proceeding, and the failure of the Company to so file shall not affect
the Investor’s obligations hereunder. In the event that any payment to the
Company hereunder is rescinded or must otherwise be returned for any reason
whatsoever, the Investor shall remain liable hereunder with respect to its
Merger Agreement Obligations as if such payment had not been made (subject
to
the terms hereof). This is an unconditional guarantee of payment and not of
collectibility.
3. CHANGES
IN OBLIGATIONS, CERTAIN WAIVERS.
The
Investor agrees that the Company may at any time and from time to time, without
notice to or further consent of the Investor, extend the time of payment of
any
of the Obligations, and may also make any agreement with MergerCo or with any
other person (including any Other Investors) interested in the transactions
contemplated by the Merger Agreement, for the extension, renewal, payment,
compromise, discharge or release thereof, in whole or in part, or for any
modification of the terms thereof or of any agreement between the Company and
MergerCo or any such other person without in any way impairing or affecting
the
Investor’s obligations under this Letter Agreement. The Investor agrees that its
obligations hereunder shall not be released or discharged, in whole or in part,
or otherwise affected by (a) the failure of the Company to assert any claim
or
demand or to enforce any right or remedy against MergerCo or any other person
interested in the transactions contemplated by the Merger Agreement (including
any Other Investors); (b) any change in the time, place or manner of payment
of
any of the Obligations or any rescission, waiver, compromise, consolidation
or
other amendment or modification of any of the terms or provisions of the Merger
Agreement or any other agreement evidencing, securing or otherwise executed
in
connection with any of the Obligations (provided that any such change,
rescission, waiver, compromise, consolidation or other amendment or modification
shall be subject to the prior written consent of MergerCo to the extent required
under the Merger Agreement); (c) the addition, substitution or release of any
entity or other person interested in the transactions contemplated by the Merger
Agreement, including any Other Investors (provided that any such addition,
substitution or release shall be subject to the prior written consent of
MergerCo to the extent required under the Merger Agreement); (d) any change
in
the corporate existence, structure or ownership of MergerCo or any other person
interested in the transactions contemplated by the Merger Agreement (including
any Other Investors); (e) any insolvency, bankruptcy, reorganization or other
similar proceeding affecting MergerCo or any other person interested in the
transactions contemplated by the Merger Agreement (including any Other
Investors); (f) the existence of any claim, set-off or other right which the
Investor may have at any time against MergerCo or the Company, whether in
connection with the Obligations or otherwise; (g) any lack of enforceability
of
the Merger Agreement or any agreement or instrument relating thereto; or (h)
the
adequacy of any other means the Company may have of obtaining payment of any
of
the Obligations. To the fullest extent permitted by law, the Investor hereby
expressly waives any and all rights or defenses arising by reason of any law
which would otherwise require any election of remedies by the Company. The
Investor waives promptness, diligence, notice of the acceptance of this Letter
Agreement and of the Obligations, presentment, demand for payment, notice of
non-performance, default, dishonor and protest, notice of any Obligations
incurred and all other notices of any kind (except for notices to be provided
to
MergerCo and its counsel in accordance with Section 8.7 of the Merger
Agreement), all defenses which may be available by virtue of any valuation,
stay, moratorium law or other similar law now or hereafter in effect, any right
to require the marshalling of assets of MergerCo or any other person interested
in the transactions contemplated by the Merger Agreement (including any Other
Investors), and all suretyship defenses generally (other than fraud or willful
misconduct by the Company or any of its subsidiaries, defenses to the payment
of
the Obligations that are available to MergerCo under the Merger Agreement or
breach by the Company of this Letter Agreement, each of the foregoing defenses
being retained by the Investor). The Investor acknowledges that it will receive
substantial direct and indirect benefits from the transactions contemplated
by
the Merger Agreement and that the waivers set forth in this Letter Agreement
are
knowingly made in contemplation of such benefits.
The
Company hereby covenants and agrees that it shall not institute, and shall
cause
its subsidiaries and Controlled Affiliates (as defined below) not to institute,
and shall instruct each affiliate that is not a Controlled Affiliate not to
institute in the name of or on behalf of the Company or any other person, any
proceeding or bring any other claim arising under, or in connection with, the
Merger Agreement or the transactions contemplated thereby, against the Investor,
MergerCo, the Investor Affiliates or MergerCo Affiliates (as defined below)
except for claims against the Investor under this Letter Agreement and against
Other Investors under their letter agreements, and the Investor hereby covenants
and agrees that it shall not institute, and shall cause its affiliates not
to
institute, any proceeding asserting that this Letter Agreement is illegal,
invalid or unenforceable, in whole or in part. The Company shall not have any
obligation to proceed at any time or in any manner against, or exhaust any
or
all of the Company’s rights against, any person liable for any Obligations prior
to proceeding against the Investor hereunder. For purposes of this Letter
Agreement, “Controlled
Affiliate”
of
any
person means any affiliate that such person directly or indirectly controls
(within the meaning of Rule 12b-2 of the Exchange Act) and, for purposes of
this
Letter Agreement, includes the directors and officers of such person. The
Investor hereby unconditionally and irrevocably waives, and agrees not to
exercise, any rights that it may now have or hereafter acquire against MergerCo
or the Other Investors that arise from the existence, payment, performance,
or
enforcement of the Investor’s Merger Agreement Obligations under or in respect
of this Letter Agreement or any other agreement in connection therewith,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in
any
claim or remedy of the Company against MergerCo or the Other Investors, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive
from
MergerCo or such other person, directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security on account of such
claim, remedy or right, unless and until its Merger Agreement Obligations and
any amounts payable under the proviso to the last sentence of Section 8 of
this
Letter Agreement shall have been paid in full in cash. If any amount shall
be
paid to the Investor in violation of the immediately preceding sentence at
any
time prior to the payment in full in cash of the Merger Agreement Obligations
and any amounts payable under the proviso to the last sentence of Section 8
of
this Letter Agreement, such amount shall be received and held in trust for
the
benefit of the Company, shall be segregated from other property and funds of
the
Investor and shall forthwith be paid or delivered to the Company in the same
form as so received (with any necessary endorsement or assignment) to be
credited and applied to the Merger Agreement Obligations and any amounts payable
under the proviso to the last sentence of Section 8 of this Letter Agreement,
in
accordance with the terms of the Merger Agreement, whether matured or unmatured,
or to be held as collateral for any Merger Agreement Obligations and any amounts
payable under the proviso to the last sentence of Section 8 of this Letter
Agreement thereafter arising. Notwithstanding anything to the contrary contained
in this Letter Agreement, the Company hereby agrees that to the extent MergerCo
is relieved by the parties to the Merger Agreement (including the Company)
of
its obligations under the third-to-last and next-to-last sentences of Section
5.14(a), the last two sentences of Section 5.15, Section 7.6(c) and the second
sentence of 7.6(d) of the Merger Agreement, the Investor shall be similarly
relieved of its obligations under this Letter Agreement.
4. NO
WAIVER; CUMULATIVE RIGHTS.
No
failure on the part of the Company to exercise, and no delay in exercising,
any
right, remedy or power hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise by the Company of any right, remedy or power
hereunder preclude any other or future exercise of any right, remedy or power.
Each and every right, remedy and power hereby granted to the Company or allowed
it by law or other agreement shall be cumulative and not exclusive of any other,
and may be exercised by the Company at any time or from time to
time.
5. REPRESENTATIONS
AND WARRANTIES.
The
Investor hereby represents and warrants that:
(a) the
execution, delivery and performance of this Letter Agreement have been duly
authorized by all necessary action and do not contravene any provision of the
Investor's charter, partnership agreement, operating agreement or similar
organizational documents or any law, regulation, rule, decree, order, judgment
or contractual restriction binding on the Investor or its assets;
(b) all
consents, approvals, authorizations, permits of, filings with and notifications
to, any governmental authority necessary for the due execution, delivery and
performance of this Letter Agreement by the Investor have been obtained or
made
and all conditions thereof have been duly complied with, and no other action
by,
and no notice to or filing with, any governmental authority or regulatory body
is required in connection with the execution, delivery or performance of this
Letter Agreement;
(c) this
Letter Agreement constitutes a legal, valid and binding obligation of the
Investor enforceable against the Investor in accordance with its terms, subject
to (i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting creditors' rights
generally, and (ii) general equitable principles (whether considered in a
proceeding in equity or at law); and
(d) the
Investor has the financial capacity to pay and perform its obligations under
this Letter Agreement, and all funds necessary for the Investor to fulfill
its
Merger Agreement Obligations under this Letter Agreement shall be available
to
the Investor for so long as this Letter Agreement shall remain in effect in
accordance with Section 8 hereof.
6. NO
ASSIGNMENT.
Neither
the Investor nor the Company may assign its rights, interests or obligations
hereunder to any other person (except by operation of law) without the prior
written consent of the Company or the Investor, as the case may be; provided,
however, that Investor may assign all or a portion of its obligations hereunder
to an affiliate or to an entity managed or advised by an affiliate of Investor,
provided that no such assignment shall relieve Investor of any liability or
obligation hereunder except to the extent actually performed or satisfied by
the
assignee.
7. NOTICES.
All
notices and other communications hereunder shall be in writing in the English
language and shall be given (a) on the date of delivery if delivered personally,
(b) on the first business day following the date of dispatch if delivered by
a
nationally recognized next-day courier service, (c) on the fifth business day
following the date of mailing if delivered by registered or certified mail
(postage prepaid, return receipt requested) or (d) if sent by facsimile
transmission, when transmitted and receipt is confirmed. All notices to the
Investor hereunder shall be delivered as set forth below or to such other
address or facsimile number as the Investor shall have notified the Company
in a
written notice delivered to the Company in accordance with the Merger
Agreement:
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
Xxxxxx
with
a
copy to:
Wachtell,
Lipton, Xxxxx & Xxxx
00
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Xxxxxx
X.
Xxxx, Esq.
Xxxx
Xxxxxx, Esq.
8. CONTINUING
OBLIGATION.
This
Letter Agreement shall remain in full force and effect and shall be binding
on
the Investor, its successors and assigns until all of the Merger Agreement
Obligations have been indefeasibly paid in full. Notwithstanding the foregoing,
this Letter Agreement shall terminate and the Investor shall have no further
obligations under this Letter Agreement as of the earlier of (i) the Effective
Time (as defined in the Merger Agreement), and (ii) the first anniversary of
the
termination of the Merger Agreement in accordance with its terms, except as
to a
claim for payment of any Obligation presented by the Company to MergerCo or
any
Investor (including the Other Investors) by such first anniversary.
Notwithstanding the foregoing, in the event that the Company or any of its
subsidiaries or Controlled Affiliates asserts in any litigation or other
proceeding that the provisions of Section 1 hereof limiting the Investor’s
liability to the amount of the Investor Cap or the provisions of this Section
8
or Section 9 hereof are illegal, invalid or unenforceable in whole or in part,
or asserting any theory of liability against the Investor, the Investor
Affiliates, MergerCo or the Merger Affiliates with respect to the transactions
contemplated by the Merger Agreement other than liability of the Investor under
this Letter Agreement (as limited by the provisions of Section 1), or if the
Company fails to instruct any affiliate that is not a Controlled Affiliate
not
to make any such assertion prior to such affiliate that is not a Controlled
Affiliate actually making such assertion, then (i) the obligations of the
Investor under this Letter Agreement shall terminate ab
initio
and be
null and void, (ii) if the Investor has previously made any payments under
this
Letter Agreement, it shall be entitled to recover such payments, and (iii)
neither the Investor nor any of its affiliates shall have any liability to
the
Company with respect to the transactions contemplated by the Merger Agreement
or
under this Letter Agreement; provided,
however,
that if
the Investor asserts in any litigation or other proceeding that this Letter
Agreement is illegal, invalid or unenforceable in accordance with its terms,
then, to the extent the Company prevails in such litigation or proceeding,
the
Investor shall pay on demand all reasonable fees and out of pocket expenses
of
the Company in connection with such litigation or proceeding.
9. NO
RECOURSE.
The
Company acknowledges that the sole assets of MergerCo are cash in a de minimis
amount and its rights under the Merger Agreement, and that no additional funds
are expected to be contributed to MergerCo unless and until the Closing occurs.
Notwithstanding anything that may be expressed or implied in this Letter
Agreement or any document or instrument delivered contemporaneously herewith,
and notwithstanding the fact that the Investor may be a partnership or limited
liability company, by its acceptance of the benefits of this Letter Agreement,
the Company acknowledges and agrees that it has no right of recovery against,
and no personal liability shall attach to, the former, current or future
security holders, directors, officers, employees, agents, affiliates, members,
managers, general or limited partners or assignees of the Investor, MergerCo,
SibCo or any former, current or future security holder, director, officer,
employee, general or limited partner, member, manager, affiliate, agent,
assignee or representative of any of the foregoing (collectively, including
SibCo but not including MergerCo, the “Investor
Affiliates”
or
“MergerCo
Affiliates”),
through MergerCo or otherwise, whether by or through attempted piercing of
the
corporate, partnership or limited liability company veil, by or through a claim
by or on behalf of MergerCo against the Investor, Investor Affiliates, or
MergerCo Affiliates, (including a claim to enforce the commitment letter dated
as of the date hereof from the Investor and the Other Investors to MergerCo)
by
the enforcement of any assessment or by any legal or equitable proceeding,
by
virtue of any statue, regulation or applicable law, or otherwise, except for
its
rights to recover from the Investor (but not the Investor Affiliates or MergerCo
Affiliates (including any general partner or managing member)) its Merger
Agreement Obligations under and to the extent provided in this Letter Agreement
subject to the limitations described herein, and its rights against Other
Investors pursuant to the terms of their written letter agreements delivered
contemporaneously herewith. Recourse against the Investor under this Letter
Agreement and against Other Investors pursuant to the terms of their written
letter agreements delivered contemporaneously herewith shall be the sole and
exclusive remedy of the Company and all of its subsidiaries and affiliates
against the Investor, the Investor Affiliates, MergerCo, SibCo, and MergerCo
Affiliates in respect of any liabilities or obligations arising under, or in
connection with, the Merger Agreement or the transactions contemplated thereby
or hereby. Nothing set forth in this Letter Agreement shall be construed to
confer or give to any person (including any person acting in a representative
capacity) other than the Company and the Investor any rights or remedies against
any person other than the Company and the Investor as expressly set forth
herein.
10. RELEASE.
(a) By
its acceptance of this Letter Agreement, the Company hereby covenants and agrees
that (1) neither the Company nor any of its subsidiaries or affiliates, and
the
Company agrees, to the maximum extent permitted by law, none of its affiliates,
members, securityholders or representatives, has or shall have any right of
recovery under or in connection with the Merger Agreement or the transactions
contemplated thereby or otherwise relating thereto, and to the extent that
it
has or obtains any such right, it, to the maximum extent permitted by law,
hereby waives (on its own behalf and on behalf of each of the aforementioned
persons) each and every such right against, and hereby releases, the Investor,
MergerCo, SibCo and each of the former, current or future security holders,
directors, officers, employees, agents, affiliates, members, managers, general
or limited partners or assignees and representatives of the Investor and
MergerCo (collectively, the “Released
Persons”),
from
and with respect to any claim, known or unknown, now existing or hereafter
arising, in connection with any transaction contemplated by or otherwise
relating to the Merger Agreement or the transactions contemplated thereby,
whether by or through attempted piercing of the corporate, partnership or
limited liability company veil, by or through a claim by or on behalf of
MergerCo (or any other person) against any Released Person, or otherwise under
any theory of law or equity (the “Released
Claims”),
other
than claims against the Investor pursuant to this Letter Agreement for up to
its
Merger Agreement Obligations; and (2) recourse against the Investor under this
Letter Agreement (and solely to the extent of the Investor’s Merger Agreement
Obligations) shall be the sole and exclusive remedy of the Company and the
Company agrees, to the maximum extent permitted by law, each of its affiliates
and representatives, against the Investor and each Released Person in respect
of
any liabilities or obligations arising under, or in connection with, the Merger
Agreement or the transactions contemplated thereby or otherwise relating
thereto. The Company hereby covenants and agrees that, it shall not institute,
directly or indirectly, and shall cause its Controlled Affiliates not to
institute, and shall instruct its affiliates that are not Controlled Affiliates
not to institute, any proceeding or bring any other claim arising under, or
in
connection with, the Merger Agreement or the transactions contemplated thereby
or otherwise relating thereto, against any Released Person except claims against
the Investor (and solely to the extent of the Investor’s Merger Agreement
Obligations) under this Letter Agreement. Notwithstanding the foregoing, in
connection with the pursuit by the Company of a claim under this Letter
Agreement, the Company may pursue a declaratory judgment claim against MergerCo,
but solely to the extent necessary to demonstrate that MergerCo has failed
to
perform its obligations under the Merger Agreement; provided,
that
such claim by the Company does not seek any other remedy (including damages)
against MergerCo.
(b)
For
all purposes of this Letter Agreement, pursuit of a claim against a person
by
the Company or any of the Company’s subsidiaries or Controlled Affiliates or the
failure of the Company to instruct any affiliate that is not a Controlled
Affiliate not to bring any claim in the name of or on behalf of the Company
prior to such affiliate that is not a Controlled Affiliate actually pursuing
such a claim, shall be deemed to be pursuit of a claim by the Company. A person
shall be deemed to have pursued a claim against another person if such first
person brings a legal action against such person, adds such other person to
an
existing legal proceeding, or otherwise asserts a legal claim of any nature
against such person.
(c)
The
Company acknowledges the Investor is agreeing to enter into this Letter
Agreement in reliance on the provisions set forth in this Section 10. This
Section 10 shall survive termination of this Letter Agreement.
11. GOVERNING
LAW.
This
Letter Agreement will be governed by, and construed in accordance with, the
Laws
of the State of New York, without giving effect to any applicable principles
of
conflict of laws that would cause the Laws of another State to otherwise govern
this Agreement.
12. SUBMISSION
TO JURISDICTION.
Each of
the parties hereto irrevocably agrees that any legal action or proceeding with
respect to this Letter Agreement and the rights and obligations arising
hereunder, or for recognition and enforcement of any judgment in respect of
this
Letter Agreement and the rights and obligations arising hereunder brought by
the
other party hereto or its successors or assigns shall be brought and determined
exclusively in any state or federal court sitting in the Borough of Manhattan
of
The City of New York, or in the event (but only in the event) that such court
does not have subject matter jurisdiction over such action or proceeding, in
the
United States District Court for the Southern District of New York. Each of
the
parties hereto agrees that mailing of process or other papers in connection
with
any such action or proceeding in the manner provided in Section 8.7 of the
Merger Agreement or in such other manner as may be permitted by applicable
laws,
will be valid and sufficient service thereof. Each of the parties hereto hereby
irrevocably submits with regard to any such action or proceeding for itself
and
in respect of its property, generally and unconditionally, to the personal
jurisdiction of the aforesaid courts and agrees that it will not bring any
action relating to this Letter Agreement or any of the transactions contemplated
by this Letter Agreement in any court or tribunal other than the aforesaid
courts. Each of the parties hereto hereby irrevocably waives, and agrees not
to
assert, by way of motion, as a defense, counterclaim or otherwise, in any action
or proceeding with respect to this Letter Agreement and the rights and
obligations arising hereunder, or for recognition and enforcement of any
judgment in respect of this Letter Agreement and the rights and obligations
arising hereunder (i) any claim that it is not personally subject to the
jurisdiction of the above named courts for any reason other than the failure
to
serve process in accordance with this Section 12, (ii) any claim that it or
its
property is exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through service of notice,
attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise) and (iii) to the fullest extent permitted
by
the applicable law, any claim that (x) the suit, action or proceeding in such
court is brought in an inconvenient forum, (y) the venue of such suit, action
or
proceeding is improper or (z) this Letter Agreement, or the subject matter
hereof, may not be enforced in or by such courts.
13. WAIVER
OF JURY TRIAL.
EACH
OF
THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LETTER
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
14. COUNTERPARTS.
This
Letter Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed shall be deemed to be
an
original but all of which taken together shall constitute one and the same
instrument.
(Signature
pages follow)
| Very truly yours, | |||
| CCMP CAPITAL INVESTORS II, L.P. | |||
| By: CCMP Capital Associates, L.P., its General Partner | |||
| By: CCMP Capital Associates GP, LLC, its general partner | |||
|
By:
Name: Title: |
|||
| Acknowledged and accepted: | |||
| ARAMARK CORPORATION | |||
|
By:
Name: Title: |
