August 8, 2006
August
8,
2006
To:
RMK
Acquisition Corporation
The Other Investors Listed on Schedule B
The Other Investors Listed on Schedule B
Re: Acquisition
of ARAMARK Corporation
Ladies
and Gentlemen:
Reference
is made to
(1) the
Agreement and Plan of Merger, dated as of the date hereof (the “Merger
Agreement”),
by
and among ARAMARK Corporation, a Delaware corporation (the “Company”),
RMK
Acquisition Corporation, a Delaware corporation (“MergerCo”),
and
RMK Finance LLC, a Delaware limited liability company (“SibCo”),
pursuant to which MergerCo, or its permitted assignees, will be merged with
and
into the Company (the “Merger”)
and
(2) the Interim Investors Agreement, dated as of the date hereof (the
“Interim
Investors Agreement”),
by
and among MergerCo, SibCo and the Investors named therein. Capitalized terms
used but not defined herein have the meanings ascribed to them in the Merger
Agreement and the Interim Investors Agreement, as appropriate. This letter
is
being delivered to the addressees in connection with the execution of the Merger
Agreement by the Company, MergerCo and SibCo.
This
letter confirms the commitment of the undersigned, subject to the conditions
set
forth herein, to purchase, or cause an assignee permitted by the fifth paragraph
of this letter (a “Permitted
Assignee”)
to
purchase shares of common stock, par value $0.10 per share, of MergerCo (or,
should the Investors hereafter agree, the shares of common stock, par value
$0.10, of ARAMARK Holdings Corporation (“Parent”))
(“Subscribed
Shares”)
for an
aggregate Purchase Price equal to the dollar commitment set forth next to the
undersigned’s name on Schedule A (the “Commitment”)
solely
for the purpose of funding, and to the extent necessary to fund, the Merger
Consideration pursuant to and in accordance with the Merger Agreement and to
pay
related expenses, provided
that the
undersigned and its Permitted Assignees shall not, under any circumstances,
be
obligated to contribute to, purchase equity or debt of or otherwise provide
funds to Parent in any amount in excess of the Commitment. The obligation of
the
undersigned and its Permitted Assignees to fund the Commitment is subject to
(a)
the terms of this letter, and (b) the substantially concurrent consummation
of
the Merger in accordance with the terms of the Merger Agreement and without
waiver of any condition or amendment of the Merger Agreement that, in either
case, is not consented to in writing by (1) the undersigned or (2) by the
Majority Investors in accordance with the Interim Investors
Agreement.
This
letter, and the undersigned’s obligation to fund the Commitment, will terminate
automatically and immediately upon the earliest to occur of (a) the Effective
Time, (b) termination of the Merger Agreement, (c) if MergerCo or SibCo breaches
any representation, warranty, covenant or agreement under the Merger Agreement,
and the Majority Investors agree to simultaneously terminate this letter and
the
corresponding letters delivered by each of the Investors and (d) the assertion
by the Company or any of its affiliates in any litigation or other proceeding
of
any claim under any Sponsor Letter Agreement of any Sponsor Group.
The
undersigned represents and warrants to MergerCo that: (i) the undersigned has
the requisite capacity and authority to execute and deliver this letter and
to
fulfill and perform the undersigned’s obligations hereunder and (ii) this letter
has been duly and validly executed and delivered by the undersigned and
constitutes a legal, valid and binding agreement of the undersigned enforceable
by the addressees against the undersigned in accordance with its
terms.
The
rights and obligations under this letter may not be assigned by any party hereto
without the prior written consent of MergerCo and each Investor, and any
attempted assignment shall be null and void and of no force or effect, except
as
permitted in this paragraph. Each of the undersigned may assign all or a portion
of its obligations to fund the Commitment to one or more of its affiliated
funds; provided,
however, that no assignment shall relieve the undersigned of its obligations
under this letter. This letter may not be amended, and no provision hereof
waived or modified, except by an instrument in writing signed by XxxxxxXx and
the undersigned and approved in writing by each Investor, except that this
letter and Schedule A may be amended by sole action of the undersigned solely
to
reflect the addition of one or more Permitted Assignees of all or a portion
of
the undersigned’s obligations to fund the Commitment as and to the extent
provided for in the immediately preceding sentence.
This
letter shall be binding on the undersigned solely for the benefit of the
addressees, and nothing set forth in this letter shall be construed to confer
upon or give to any person other than the addressees any benefits, rights or
remedies under or by reason of, or any rights to enforce or cause such addressee
to enforce, the Commitment or any provisions of this letter.
Notwithstanding
anything that may be expressed or implied in this letter, the addressees, by
their acceptance of the benefits of this letter, covenant, agree and acknowledge
that no person other than the undersigned (and to the extent a portion of the
commitment is assigned to one or more Permitted Assignees, such Permitted
Assignees) shall have any obligation hereunder and that, notwithstanding that
the undersigned (and to the extent a portion of the commitment is assigned
to
one or more Permitted Assignees, such Permitted Assignees) may be a partnership
or limited liability company, no recourse hereunder or under any documents
or
instruments delivered in connection herewith shall be had against any former,
current or future director, officer, employee, agent, general or limited
partner, manager, member, stockholder, affiliate or assignee (other than a
Permitted Assignee) of the undersigned (and to the extent a portion of the
commitment is assigned to one or more Permitted Assignees, such Permitted
Assignees) or any former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder, affiliate or assignee
(other than a Permitted Assignee) of any of the foregoing, whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by
virtue of any statute, regulation or other applicable law, it being expressly
agreed and acknowledged that no personal liability whatsoever shall attach
to,
be imposed on or otherwise be incurred by any former, current or future
director, officer, employee, agent, general or limited partner, manager, member,
stockholder, affiliate or assignee (other than a Permitted Assignee) of the
undersigned (and to the extent a portion of the commitment is assigned to one
or
more Permitted Assignees, such Permitted Assignees) or any former, current
or
future director, officer, employee, agent, general or limited partner, manager,
member, stockholder, affiliate or assignee (other than a Permitted Assignee)
of
any of the foregoing, as such, for any obligations of the undersigned (and
to
the extent a portion of the commitment is assigned to one or more Permitted
Assignees, such Permitted Assignees) under this letter or any documents or
instrument delivered in connection herewith or for any claim based on, in
respect of, or by reason of such obligations or their creation.
-2-
This
letter may only be enforced by the addressees at the direction of the Majority
Investors, so long as such Majority Investors are not themselves in default
of
any of their respective obligations under their respective equity commitment
letters or the Interim Investors Agreement and are ready, willing and able
to
consummate the Merger. Subject to the foregoing, MergerCo shall have no right
to
enforce this letter unless directed to do so by the Majority Investors in their
sole discretion. MergerCo’s creditors shall have no right to enforce this letter
or to cause MergerCo to enforce this letter.
Concurrently
with the execution and delivery of this letter, the undersigned is executing
and
delivering to the Company a Sponsor Letter Agreement related to MergerCo’s
obligations under the Merger Agreement. The Company’s remedies against the
undersigned under the Sponsor Letter Agreement shall, and are intended to be,
the sole and exclusive direct or indirect remedies available to the Company
against the undersigned and any former, current or future director, officer,
employee, agent, general or limited partner, manager, member, stockholder,
affiliate or assignee of the undersigned or any former, current or future
director, officer, employee, agent, general or limited partner, manager, member,
stockholder, affiliate or assignee of any of the foregoing in respect of any
liabilities or obligations arising under, or in connection with, the Merger
Agreement and the transactions contemplated thereby, including in the event
MergerCo or SibCo breaches its respective obligations under the Merger
Agreement, whether or not MergerCo’s or SibCo’s breach is caused by the
undersigned’s breach of its obligations under this letter. Nothing in this
letter, express or implied, is intended to or shall confer upon any person,
other than MergerCo and the Investors, any right, benefit or remedy of any
nature whatsoever under or by reason of this letter.
This
letter shall be treated as confidential and is being provided to the addressees
solely in connection with the Merger. This letter may not be used, circulated,
quoted or otherwise referred to in any document, except with the written consent
of the Majority Investors. The foregoing notwithstanding, and without prejudice
to the sixth paragraph of this letter, this letter may be provided to the
Company if the Company agrees to treat this letter as confidential, except
that
the Company and the undersigned may disclose the existence of this letter to
the
extent required by law, the applicable rules of any national securities exchange
or in connection with any SEC filings relating to the Merger, including the
Company Proxy Statement, Schedule 13E-3, any Schedule 13D filings by the
undersigned and Other Filings.
This
letter may be executed in counterparts and by facsimile. This letter shall
be
governed by, and construed and interpreted in accordance with, the laws of
the
State of Delaware, without giving effect to any applicable principles of
conflict of laws rules that would cause the laws of another State to otherwise
govern this Agreement. The parties hereto hereby (a) submit to the personal
jurisdiction of Delaware Court of Chancery, or in the event (but only in the
event) that such court does not have subject matter jurisdiction over an action
or proceeding, in the United States District Court for the District of Delaware,
and (b) waive any claim of improper venue or any claim that those courts are
an
inconvenient forum. The parties hereto agree that mailing of process or other
papers in connection with any 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.
-3-
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
OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
[remainder
of this page has been intentionally left blank]
-4-
| Very truly yours, | |
|
X.X.
XXXXXX PARTNERS (BHCA), L.P.
|
|
| By: JPMP Master Fund Manager, L.P., its General Partner | |
| By: JPMP Capital Corp., its General Partner | |
| By: ______________________ | |
|
Name:
|
|
|
Title:
|
|
| Accepted and Acknowledged: | |
| RMK ACQUISITION CORPORATION | |
| By: ______________________ | |
|
Name:
|
|
|
Title:
|
[Signature
Page to JPMP Commitment Letter]
Schedule
A
|
Investor
|
Dollar
Commitment
|
|
X.X.
Xxxxxx Partners (BHCA), L.P.
|
$200,000,000
|
Schedule
B
Other
Investors
GS
Capital Partners V Fund, L.P.
CCMP
Capital Investors II, L.P.
Xxxxxx
X.
Xxx Equity Fund VI, X.X.
Xxxxxxx
Xxxxxx Private Equity IX, L.P.
