Exhibit 2.2
FIRST AMENDMENT
TO
PURCHASE AGREEMENT
FIRST AMENDMENT TO PURCHASE AGREEMENT, dated as of November 30, 2001
("First Amendment"), between The ServiceMaster Company, a Delaware corporation
("Parent"), and ARAMARK Corporation, a Delaware corporation ("Buyer").
PRELIMINARY STATEMENT:
WHEREAS, Parent and Buyer have entered into a Purchase Agreement,
dated as of October 3, 2001 (the "Purchase Agreement"), providing, among other
things, for the purchase and sale of Parent's Management Services division; and
WHEREAS, each of Parent and Buyer desires to amend and supplement the
Purchase Agreement in certain respects as described in this First Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, it is hereby agreed between Parent and Buyer
as follows:
1. Definitions.
Except as otherwise indicated herein or unless the context otherwise
requires, capitalized terms used but not defined herein shall have the meanings
ascribed thereto in the Purchase Agreement.
2. Amendment of Definition of "Target Net Working Capital."
The definition of "Target Net Working Capital" in Section 1.1 of the
Purchase Agreement is hereby amended to substitute the amount "$45,664,000" for
the amount "$44,748,000" as it appears therein.
3. Addition of ServiceMaster Direct Marketing Corporation as a Seller and
Kowalski-Dickow Associates, Inc. as a Conveyed Company; Transfer of
Halliwell Engineering Associates, L.L.C. to ServiceMaster Management
Services, Inc.
(a) The second recital to the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"WHEREAS, Parent holds, directly or indirectly, all of the outstanding
shares of capital stock of (i) ServiceMaster Management Services, Inc., a
Delaware corporation ("SMMS Inc."), (ii) Quantum Resource Corporation, a
Delaware corporation ("QRC"), (iii) ServiceMaster of Canada Limited, a
Canadian corporation ("SVM Canada"), and (iv) ServiceMaster Direct
Marketing Corporation, an Illinois corporation ("SMDMC"), and 100% of the
membership interests in ServiceMaster Strategic II L.L.C., a Delaware
limited liability company ("Strategic") (Parent, SVM Canada, SMDMC and
Strategic being referred to herein individually as a "Seller" and
collectively as "Sellers");"
(b) The third recital to the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"WHEREAS, immediately prior to the Closing (as defined below), SMMS
Inc. will hold 100% of the membership interests in Halliwell Engineering
Associates, L.L.C., a Delaware limited liability company ("HEA");"
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(c) The seventh recital to the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"WHEREAS, immediately prior to the Closing, SMDMC will own all of the
outstanding shares of capital stock of CMI Group, Inc., a Wisconsin
corporation ("CMIG"), and Kowalski-Dickow Associates, Inc., a Wisconsin
corporation ("KDA");"
(d) The eighth recital to the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"WHEREAS, the parties hereto desire that Sellers shall sell and
transfer to Buyer, and Buyer shall purchase from Sellers (i) all of the
outstanding capital stock of each of SMMS Inc., QRC, MS Canada, CMIG and
KDA and (ii) the SMMSLP LP Interests, all on the terms and subject to the
conditions set forth herein; and"
(e) The ninth recital to the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"WHEREAS, SMMS Inc., QRC, MS Canada, CMIG, KDA and SMMSLP are referred
to herein individually as a "Conveyed Company" and collectively as the
"Conveyed Companies"."
(f) The definition of "Closing" in Section 1.1 of the Purchase Agreement is
hereby amended to delete ", the HEA Membership Interests" therefrom.
(g) The definition of "Conveyed Companies Subsidiaries" in Section 1.1 of
the Purchase Agreement is hereby amended to substitute the term "HEA" for the
term "KDA" as it appears therein.
(h) The definition of "KDA" in Section 1.1 of the Purchase Agreement is
hereby amended, supplemented and restated in its entirety to read as follows:
" `KDA' has the meaning specified in the seventh recital to this Agreement."
(i) The definition of "HEA Membership Interests" in Section 1.1 of the
Purchase Agreement is hereby deleted in its entirety.
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(j) The definition of "Shares" in Section 1.1 of the Purchase Agreement is
hereby amended to substitute the term "KDA" for the term "SMDMC" as it appears
therein.
(k) The definition of "SMDMC" in Section 1.1 of the Purchase Agreement is
hereby amended to substitute the word "second" for the word "seventh" as it
appears therein.
(l) The definition of "SMHC" in Section 1.1 of the Purchase Agreement is
hereby deleted in its entirety.
(m) The definition of "SMHC Instrument of Assignment and Assumption" in
Section 1.1 of the Purchase Agreement is hereby deleted in its entirety.
(n) Section 2.1 of the Purchase Agreement is hereby amended, supplemented
and restated in its entirety to read as follows:
"Purchase and Sale of the Shares. Upon the terms and subject to the
conditions of this Agreement, on the Closing Date, Parent, SVM Canada or
SMDMC, as appropriate, shall sell, transfer, assign, convey and deliver to
Buyer, free and clear of all Encumbrances, and Buyer shall purchase and
accept from Parent, SVM Canada or SMDMC, as appropriate, the Shares."
(o) Section 2.2 of the Purchase Agreement is hereby deleted in its entirety
and replaced with the phrase "[Reserved]."
(p) The first sentence of Section 3.1 of the Purchase Agreement is hereby
amended to delete "the HEA Membership Interests," therefrom.
(q) Section 4.2 of the Purchase Agreement is hereby amended to substitute
the term "SMDMC" for the term "SMHC" as it appears therein.
(r) Section 4.3(b) of the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"The Strategic Instrument of Assignment and Assumption, duly executed
by Buyer;"
(s) Section 4.4(a) of the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"(a) Copies of the Certificate of Incorporation, Articles of
Incorporation or Certificate of Formation, as the case may be, of each of
Parent, SMDMC and Strategic certified as of a recent date by the Secretary
of State of the State of Delaware or Illinois, as applicable;"
(t) Section 4.4(c) of the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
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"(c) Certificate of good standing of each of Parent, SMDMC and
Strategic issued as of a recent date by the Secretary of State of the State
of Delaware or Illinois, as applicable;"
(u) Section 4.4(f) of the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"(f) Copies of the Certificate of Incorporation, Articles of
Incorporation, Certificate of Formation or Certificate of Limited
Partnership, as the case may be, of each of SMMS Inc., QRC, CMIG, KDA and
SMMSLP certified as of a recent date by the Secretary of State of the State
of Delaware or Wisconsin, as applicable;"
(v) Section 4.4(h) of the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"(h) Certificate of good standing of each of SMMS Inc., QRC, CMIG,
KDA and SMMSLP certified as of a recent date by the Secretary of State of
the State of Delaware or Wisconsin, as applicable;"
(w) Section 4.4(l) of the Purchase Agreement is hereby deleted in its
entirety.
(x) The first sentence of Section 4.6(a) of the Purchase Agreement is
hereby amended, supplemented and restated in its entirety to read as follows:
"Within 120 days following final determination of the Purchase Price
in accordance with Section 3.3 (unless such deadline is extended by mutual
agreement or unless sooner required under applicable law), Parent and Buyer
shall negotiate and prepare a schedule (the "Allocation Schedule")
allocating the Purchase Price among (i) the Shares attributable to each of
SMMS Inc., QRC, MS Canada, CMIG and KDA, (ii) the SMMSLP LP Interests,
(iii) if requested by either party, the assets held by SMMSLP and (iv) if
the Downers Grove Real Property Buyer is a Person other than a Company, the
Downers Grove Real Property."
(y) The second sentence of Section 4.6(a) of the Purchase Agreement is
hereby amended and supplemented to add the following to the end thereof:
"; provided, that notwithstanding anything herein to the contrary,
Parent and Buyer agree that $2,123,000 shall be allocated to the Shares
attributable to MS Canada."
(z) Section 4.6(b) of the Purchase Agreement is hereby amended to delete
the term "SMDMC" from each place it appears in the first sentence thereof.
(aa) Section 5.1 of the Purchase Agreement is hereby amended and
supplemented to substitute "Parent" for "Each of Parent and SMHC" in paragraph
(a) thereof and to add a new paragraph (d) which shall read as follows:
"(d) SMDMC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Illinois."
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(bb) The last sentence of Section 5.2(b) of the Purchase Agreement is
hereby amended to delete ", the HEA Membership Interests" therefrom.
(cc) Section 5.4(c)(i) of the Purchase Agreement is hereby amended to
delete "the HEA Membership Interests," therefrom.
(dd) Section 6.5 of the Purchase Agreement is hereby amended to delete ",
the HEA Membership Interests" from each place it appears therein.
(ee) Section 7.8 of the Purchase Agreement is hereby deleted in its
entirety and replaced with the phrase "[Reserved]."
(ff) Section 8.2(a)(i) of the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"(i) Parent shall be liable for and pay, and pursuant to Article XI
shall indemnify and hold harmless each Buyer Group Member from and against
any and all Losses and Expenses incurred by such Buyer Group Member in
connection with or arising from, any and all Taxes (A) imposed on any
Company pursuant to Treas. Reg. (S) 1.1502-6 or similar provision of state
or local law solely as a result of such Company having been a member of a
group of corporations joining in filing Tax Returns on a consolidated,
combined or unitary basis, (B) imposed on or with respect to any Company,
for which any Company may otherwise be liable, or with respect to the
SMMSLP LP Interests, in each case described in this clause (B) for any
taxable year or period that ends on or before the Closing Date and, with
respect to any Straddle Period, the portion of such Straddle Period ending
on and including the Closing Date, (C) arising solely from the termination,
as of the Closing Date, of any Company that is a corporation as a member of
the affiliated group (as defined in Section 1504 of the Code) of which
Parent is the parent corporation, (D) arising from the distribution of or
otherwise relating to the Excluded Assets or the Excluded Business or (E)
that are Section 338(h)(10) Taxes; provided, however, that Parent shall not
be liable for or pay, and shall not indemnify or hold harmless any Buyer
Group Member from and against, (I) any incremental Taxes (other than
Section 338(h)(10) Taxes) that result from any actual or deemed election
under Section 338 of the Code or any similar provisions of state, local or
foreign law as a result of the purchase of the Shares or the SMMSLP LP
Interests, or the deemed purchase of shares or equity of any Conveyed
Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or
any Company engaging in any activity or transaction (other than the
activities and transactions contemplated by this Agreement) that would
cause the transactions contemplated by this Agreement to be treated as a
purchase or sale of assets of any Company (other than HEA) for federal,
state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10)
Taxes) imposed on any Company, for which any Company may otherwise be
liable or with respect to the SMMSLP LP Interests as a result of actual
transactions not in the ordinary course of business occurring on the
Closing Date after the Closing, and (III) any Taxes shown as a liability or
reserve on the Closing Date Balance Sheet and not excluded as a liability
in determining Net Working Capital (the Taxes described in this proviso
being referred to as "Excluded Taxes"). Parent shall be entitled to any
refund of (or actual credit for when and as actually realized) Taxes for
which it is liable under this Section 8.2(a)."
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(gg) Sections 8.2(a)(ii) and (iii) are each hereby amended to delete "the
HEA Membership Interests or" from each place it appears therein.
(hh) Section 8.2(d) of the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"(d) Section 338(h)(10) Elections. SMDMC or Parent, as the case may
be, and Buyer shall file a joint election for each of CMIG, KDA, QRC, and
SMMS, Inc. under Section 338(h)(10) of the Code with respect to the
purchase by Buyer of all the outstanding shares of capital stock of CMIG,
KDA, QRC and SMMS, Inc. (collectively, the "Section 338(h)(10) Elections").
SMDMC or Parent, as the case may be, and Buyer shall exchange completed and
executed copies of Internal Revenue Service Form 8023, required schedules
thereto, and any similar state, local, foreign and other forms. If any
changes are required in these forms as a result of information which is
first available after these forms are prepared, the parties will promptly
agree on such changes. None of SMDMC, Parent or any other Seller makes any
warranty or representation with respect to the effectiveness of the Section
338(h)(10) Elections; provided, however, that, assuming the effectiveness
of the Section 338(h)(10) Elections, nothing in this sentence shall alter
the extent to which Parent is liable for Section 338(h)(10) Taxes in
accordance with the terms of Section 8.2."
(ii) The first sentence of Section 8.5(a) of the Purchase Agreement is
hereby amended to delete ", the HEA Membership Interests" therefrom.
(jj) Section 11.6(b) of the Purchase Agreement is hereby amended to delete
", the HEA Membership Interests" therefrom.
(kk) Exhibit G to the Purchase Agreement is hereby deleted in its entirety.
4. Amendment of Section 3.5 of the Purchase Agreement.
Section 3.5 of the Purchase Agreement is hereby amended and supplemented to
add a new paragraph (d) which shall read as follows:
"(d) On the Closing Date, Buyer shall reimburse Parent for all cash
security deposits paid by Parent under the Downers Grove Real Property
Contracts."
5. Amendment of Section 8.3 of the Purchase Agreement.
(a) Section 8.3(c) of the Purchase Agreement is hereby amended to
substitute the phrase "December 31, 2001" for the phrase "the Closing Date" as
it appears in the last sentence thereof and to add the following to the end
thereof:
"As of the Closing Date, and subject to Buyer's liability and
obligation for medical and other claims as heretofore provided in this
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Section 8.3(c), each Affected Employee and each former employee of a
Company who is then eligible for the continuation of group health care
coverage under Section 4980B(f) of the Code ("COBRA") (and each of their
"qualified beneficiaries" within the meaning of COBRA) shall be entitled to
continue participating in Parent's welfare benefit plans (including without
limitation disability, medical, dental and life) through December 31, 2001.
Parent shall have no obligation to charge or recover any premium payments
from such employees and former employees, or to remit any premium payments
to Buyer, with respect to such coverage, but shall fully cooperate with,
and provide all relevant information to, Buyer with respect to all affected
individuals. The administrative costs, if any, incurred by Parent with
respect to such continued coverage shall be treated as a "Service" provided
by Parent to Buyer within the meaning of and pursuant to the Transitional
Services Agreement."
(b) Section 8.3(d) of the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"(d) COBRA. As of January 1, 2002 and subject to Section
11.1(a)(viii), Buyer shall be responsible for providing any employee or
former employee of a Company whose "qualifying event," within the meaning
of COBRA, occurs prior to, on or after the Closing Date (and such
employees' "qualified beneficiaries" within the meaning of COBRA) with the
continuation of group health coverage required by COBRA."
(c) Section 8.3(i) of the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"(i) Flexible Spending Accounts. On and after the Closing Date,
Affected Employees shall be permitted to continue to contribute to, and
submit claims to be paid from, the flexible spending accounts maintained on
their behalf under Parent's plans qualified under Section 125 and 129 of
the Code for the reimbursement of medical and dependent care expenses
incurred prior to January 1, 2002."
(d) Section 8.3(j)(ii) of the Purchase Agreement is hereby amended to
substitute the phrase "January 1, 2002" for the phrase "the day after the
Closing Date" as it appears therein.
(e) Section 8.3(k)(i) of the Purchase Agreement is hereby amended to
substitute the phrase "January 1, 2002" for the phrase "the day after the
Closing Date" as it appears therein.
6. Amendment of Section 8.4 of the Purchase Agreement.
(a) Section 8.4(c) of the Purchase Agreement is hereby amended,
supplemented and restated in its entirety to read as follows:
"(c) (i) On the Closing Date and, thereafter, on the second to the
last business day of each month beginning December 2001, Buyer shall pay to
Parent by wire transfer an amount equal to $1,050,000 (the "Monthly Loss
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Billing Payment") as an advance payment for the estimated actual losses of
the Companies incurred in connection with general liability, automobile
liability and workers' compensation claims and other expenses to be paid by
Zurich Insurance Company ("Zurich"), Zurich Insurance Company/Fronted
("Zurich Fronted") and The Home Insurance Company/REM ("Home") during the
calendar month immediately following the due date for such payment.
(ii) On a bi-monthly basis beginning February 2002 (a "True-Up
Month"), Parent shall reconcile the Monthly Loss Billing Payment paid by
Buyer and the actual losses of the Companies paid by Zurich, Zurich Fronted
and Home in respect of the two-month period set forth below:
True-Up Month Months Included in True-Up Calculation
------------- --------------------------------------
February Preceding December and January
April Preceding February and March
June Preceding April and May
August Preceding June and July
October Preceding August and September
December Preceding October and November
No later than the 20th day of each True-Up Month (other than December
2001), Parent shall deliver to a person or office designated by Buyer a
report explaining Parent's reconciliation in reasonable detail. Such
report, which shall be reasonably satisfactory to Buyer, shall indicate the
amount (the "True-Up Amount") that Buyer shall reduce or increase the
Monthly Loss Billing Payment payable by Buyer to Parent on the second to
the last business day of such True-Up Month in accordance with Section
8.4(c)(i) above. If the True-Up Amount reduces the Monthly Loss Billing
Payment for three consecutive True-Up Months, or if the True-Up Amount
increases the Monthly Loss Billing Payment for three consecutive True-Up
Months, and in each case the True-Up Amount exceeds $200,000 for each such
True-Up Month, then Buyer and Parent shall negotiate in good faith to agree
upon a revised Monthly Loss Billing Payment to be paid by Buyer.
Parent shall deliver promptly after Parent's receipt thereof to a
person or office designated by Buyer a copy of the billings received by
Parent from Zurich, Zurich Fronted and Home in respect of the general
liability, automobile liability and workers' compensation insurance
policies.
(iii) The then applicable Monthly Loss Billing Payment shall be
adjusted annually beginning with the Monthly Loss Billing Payment to be
made on the second to the last business day of December 2002 (the "Adjusted
Monthly Loss Billing Payment"). The Adjusted Monthly Loss Billing Payment
for 2003 beginning with the payment to be made on the second to the last
business day of December 2002 shall be the monthly average of the actual
losses paid by Zurich, Zurich Fronted and Home for the 12-month period
ending November 30, 2002. The Adjusted Monthly Loss Billing Payment for
2004 and the years thereafter shall be the monthly average of the actual
losses paid by Zurich, Zurich Fronted and Home for the 12-month period
ending the prior November 30. The amount of the Adjusted Monthly Loss
Billing Payment shall be part of the report to be delivered during December
of each year (other than 2001) by Parent to a person or office designated
by Buyer pursuant to Section 8.4(c)(ii).
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(iv) Buyer shall reimburse Parent on a quarterly basis in arrears
beginning on the second to the last business day of April 2002 (for the
initial four-month period ending March 31, 2002 and, thereafter, for three-
month periods) for the cost incurred by Parent for maintaining letters of
credit and surety bonds as collateral in support of the Companies' general
liability, automobile liability and workers' compensation insurance
policies. The amount of such reimbursement paid by Buyer shall be based
upon the aggregate notional amount of the letters of credit and surety
bonds required by Zurich, Zurich Fronted and Home in respect of the
Companies for such period and shall be calculated by Parent using the
weighted average cost to Parent of all letters of credit and surety bonds
required by Zurich, Zurich Fronted and Home in support of general
liability, automobile liability and workers' compensation insurance
policies of Parent and the Companies. The amount of any such reimbursement
shall be paid by Buyer with the Monthly Loss Billing Payment to be paid by
Buyer to Parent pursuant to Section 8.4(c)(i).
(v) Any report that is due on a date that is not a business day shall
be delivered on the next business day."
(b) Section 8.4 of the Purchase Agreement is hereby amended and
supplemented to add new paragraphs (d), (e), (f), (g), (h), (i) and (j)
which shall read as follows:
"(d) Buyer has been named as an additional insured with respect to
the liability policies set forth in Schedule 8.4(d) (the "Additional
Insured Endorsements") for the period prior to the Closing Date set forth
on Schedule 8.4(d).
(e) A run off endorsement has been obtained in favor of Buyer with
respect to the liability policies set forth in Schedule 8.4(e) (the "Run
Off Endorsements") for the period set forth on Schedule 8.4(e).
(f) An extended reporting period endorsement has been obtained by
Parent with respect to the liability policies set forth in Schedule 8.4(f)
(the "Extended Reporting Period Endorsements") for the periods set forth in
Schedule 8.4(f).
(g) Parent shall maintain coverage on the Owned Real Property through
December 31, 2002 under the third party pollution policy issued to Parent
by AIG. Parent shall use its reasonable best efforts to acquire one or
more Tail Policies through the end of the four-year period commencing on
January 1, 2003 and ending on December 31, 2006 with respect to the third
party pollution policy issued to Parent by AIG to cover claims made after
December 31, 2002 which are based on acts, errors or omissions which occur
on or prior to November 30, 2001.
(h) An extended discovery endorsement has been obtained in favor of
Buyer with respect to the fidelity policy issued to Parent by Chubb for the
period commencing on December 1, 2001 and ending on November 30, 2002.
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(i) Parent and Buyer shall each pay one-half of the cost of (i) the
Additional Insured Endorsements, (ii) the Run Off Endorsements, (iii) the
Extended Reporting Period Endorsements and (iv) obtaining a retrospective
date (November 1, 1994) for the errors and omissions liability policy and
related punitive wraparound policy.
(j) Parent shall use its reasonable best efforts to (i) cause Buyer to
be named as an additional insured for the five-year period prior to the
Closing Date with respect to the following liability policies: (1) Canadian
General Liability and (2) Canadian Automobile Liability and (ii) acquire
for a period of five years after the Closing Date extended reporting period
coverage or a run off endorsement with respect to the following liability
policies: (1) Excess Fiduciary and (2) Excess EPLI."
7. Amendment of Exhibit C to the Purchase Agreement.
Exhibit C to the Purchase Agreement is hereby amended and supplemented as
set forth in Annex A attached hereto.
8. Amendment of Schedules to the Purchase Agreement.
(a) Schedules 5.2, 5.5, 5.9(d), 5.11(a), 5.11(c) and 5.14(a) to the
Purchase Agreement are hereby amended and supplemented as set forth in Annex B
attached hereto.
(b) Schedule 8.4 to the Purchase Agreement is hereby replaced with
Schedules 8.4(d), (e) and (f) as set forth in Annex B attached hereto.
9. Representations and Warranties of Parent.
Without limitation of Parent's representations and warranties contained in
Article V of the Purchase Agreement, Parent represents and warrants to Buyer as
follows:
Parent has the corporate power and corporate authority to execute, deliver
and perform this First Amendment. The execution, delivery and performance of
this First Amendment by Parent and the consummation by Parent of the
transactions contemplated hereby have been duly authorized and approved by all
requisite corporate action and do not require any further authorization or
consent of Parent or its stockholders. This First Amendment has been duly
authorized, executed and delivered by Parent and constitutes (assuming the valid
authorization, execution and delivery of this First Amendment by Buyer) the
legal, valid and binding obligation of Parent enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general application relating to or affecting creditors' rights and to
general equity principles.
10. Representations and Warranties of Buyer.
Without limitation of Buyer's representations and warranties contained in
Article VI of the Purchase Agreement, Buyer represents and warrants to Parent as
follows:
Buyer has the corporate power and corporate authority to execute, deliver
and perform this First Amendment. The execution, delivery and performance of
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this First Amendment by Buyer and the consummation by Buyer of the transactions
contemplated hereby have been duly authorized and approved by all requisite
corporate action and do not require any further authorization or consent of
Buyer or its stockholders. This First Amendment has been duly authorized,
executed and delivered by Buyer and constitutes (assuming the valid
authorization, execution and delivery of this First Amendment by Parent) the
legal, valid and binding obligation of Buyer enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general application relating to or affecting creditors' rights and to
general equity principles.
11. Miscellaneous.
(a) Except as expressly modified hereby, the Purchase Agreement remains in
full force and effect. Upon the execution and delivery hereof, the Purchase
Agreement shall thereupon be deemed to be amended and supplemented as
hereinabove set forth as fully and with the same effect as if the amendments and
supplements made hereby were originally set forth in the Purchase Agreement, and
this First Amendment and the Purchase Agreement shall henceforth be read, taken
and construed as one and the same instrument, but such amendments and
supplements shall not operate so as to render invalid or improper any action
heretofore taken under the Purchase Agreement.
(b) This First Amendment may be executed in counterparts, each of which
shall be considered an original instrument, but all of which shall be considered
one and the same agreement, and shall become binding when one or more
counterparts have been signed by each of the parties hereto and delivered to
Parent and Buyer.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed as of the day and year first above written.
THE SERVICEMASTER COMPANY
By: /s/ Jim Kaput
-----------------------------
Name: Jim Kaput
Title: Senior Vice President and
General Counsel
ARAMARK CORPORATION
By: /s/ Donald S. Morton
------------------------------
Name: Donald S. Morton
Title: Vice President
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