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
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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");" ---
(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. ss. 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
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to any refund of (or actual credit for when and as actually realized)
Taxes for which it isliable under this SECTION 8.2(A)."
(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
SECTION 8.3(C), each Affected
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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 BILLING
PAYMENT") as an advance
7
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
8
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).
(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.
9
(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 this First
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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: __________________________________
Name:
Title:
ARAMARK CORPORATION
By: __________________________________
Name:
Title:
12
EXHIBIT C
INTERNATIONAL LICENSES
TERRITORY LICENSEE EXPIRATION DATE EXPIRATION OF RENEWAL PERIOD
- --------- -------- --------------- ----------------------------
Australia/New Zealand Spotless Group Limited N/A (NOTE: Assignment and
----
Assumption relates only to
certain obligations to
provide updates and
technical assistance, and
such obligations expire
July 1, 2015)
Brazil Tecser Facilities Management June 26, 2008 June 26, 2018
Ltda.
Chile Modern Service Concepts December 9, 2004 December 9, 2014
China Bright China Service March 6, 2011 March 6, 2021
Industries Ltd.
Czech Rep. Euroservis a.s. ServiceMaster April 1, 2011 N/A
Czechoslovakia
Egypt The Egyptian Company for May 24, 2018 N/A
Superior Support Services
(Healthcare, Education and
Business and Industry)
Guam Six D Enterprises December 10, 2007 December 10, 2017
Hong Kong United MediCorp Pte Ltd. October 28, 2008 N/A
Japan Duskin Co. Ltd. April 1, 2002 April 1, 2012
(Healthcare)
Duskin Co. Ltd. October 31, 2006 October 31, 2016
(Industrial Commercial/
Education)
Japan Sanko Inc. December 20, 2011 N/A
(Healthcare Food Service)
Japan N/A (NOTE: Partial Assignment N/A N/A
of Letter Agreement dated
September 30, 2000 executed by
Brian Oxley and Andrew Bratzel)
13
TERRITORY LICENSEE EXPIRATION DATE EXPIRATION OF RENEWAL PERIOD
- --------- -------- --------------- ----------------------------
Japan ServiceMaster Japan, Inc. Transitional license to N/A
(Industrial expire according to its
Commercial/Education) terms (NOTE: Includes
September 30, 2000 Letter
Agreement executed by
William Pollard and Brian
Oxley)
Jordan ServiceMaster Jordan January 20, 2009 N/A
Korea Hyundai Industrial Development March 31, 2003 March 31, 2013
and Construction Co., Ltd.
(Healthcare, Education and
Business and Industry)
Kuwait Al-Essa Medical & Scientific September 9, 2009 N/A
Equipment Co. (Healthcare,
Education and Business and
Industry)
Lebanon Ali Mohurrak and Hassam March 25, 2009 March 25, 2019
Mohurrak
Malaysia MHL ServiceMaster PTE April 2, 2016 N/A
Mexico Servicios Afilidades December 14, 2013 December 14, 2033
Pro-Salud (NOTE: Includes
accompanying Trademark
Agreement)
Philippines Facilities Management Inc. April 11, 2011 April 11, 2026
Qatar Al-Azbi Trading Contracting & November 5, 2008 N/A
Services
Saudi Arabia Al Majal Al Saudi July 30, 2018 N/A
Singapore United MediCorp Pte Ltd. October 28, 2008 N/A
South Africa Sirius Development Foundation April 24, 2010 April 24, 2020
Taiwan United MediCorp. Pte Ltd. October 28, 2008 N/A
Thailand Vuteq Asia Co., Ltd. December 31, 2010 December 31, 2020
Turkey 4 U Construction Company March 1, 2010 March 1, 2020
U.A.E. UTS ServiceMaster Emirates January 5, 2008 N/A
14
TERRITORY LICENSEE EXPIRATION DATE EXPIRATION OF RENEWAL PERIOD
- --------- -------- --------------- ----------------------------
Venezuela SM Services, C.A. June 28, 2010 June 28, 2020
15
Annex B
SCHEDULE 5.2
CAPITALIZATION
[Attached hereto]
16
SCHEDULE 5.5
FINANCIAL STATEMENTS
The page attached hereto amends, supplements and restates in its entirety the
unaudited consolidated balance sheet of the Companies contained in Schedule
5.5(ii).
17
SCHEDULE 5.9(D)
LEASED REAL ESTATE
Headquarters: Kowalski-Dickow Associates, Inc.
2300 & 2500 Warrenville Road 11402 N. Port Washington Road
Downers Grove, IL 60515 Mequon, WI 53092
East Unit Offices: CMI Group, Inc.
527 Plymouth Road, Suite 418 424 North 4th Street
Plymouth Meeting, PA 19462 Milwaukee, WI 53202
West Unit Offices: Halliwell Engineering Associates LLC
17310 Redhill, Suite 300 865 Waterman Avenue
Irvine, CA 92614 East Providence, RI 02914
Manufacturing Shop: Quantum Resource Corporation
2296 Cornell Avenue 300 Arboretum Place, Suite 500
Montgomery, IL 60538 Richmond, VA 23236
Storage Space: ServiceMaster Management Services of
Unit 135 Canada Inc.
1661 Quincy Avenue 6540 Tomken Road
Naperville, IL 60540 Mississauga, Ontario, LST 2E9 CANADA
18
SCHEDULE 5.11(A)
LIST OF INTELLECTUAL PROPERTY
The pages attached hereto amend, supplement and restate only the
following pages of SCHEDULE 5.11(A):
ServiceMaster Domestic Patent Applications and Registrations
United States Marks Utilized by Quantum Resource Corporation
United States Marks Utilized by ServiceMaster Management Services
Limited Partnership
Technical Development Marks Utilized in Canada and Mexico
Technical Development Marks Utilized Outside North America
19
SCHEDULE 5.11(C)
RIGHT, TITLE AND INTEREST IN INTELLECTUAL PROPERTY
DOMESTIC:
Domain Deluxe, a company that sells domain names, has obtained the registration
for the domain name www.QuantumCareers.com. It has priced this domain name at
$3,380, and has rejected offers for lower prices. The ServiceMaster Company
filed an application with the USPTO to register the QUANTUM CAREERS mark, Ser.
No. 78/060,590, on April 26, 2001. The mark was approved for publication on 5
August 2001, but has not yet been assigned a publication date by the PTO.
Prior to closing, The ServiceMaster Company and any predecessors of The
ServiceMaster Company will assign rights in each item of intellectual property
identified in Schedule 5.11(a), including federal applications and
registrations, to ServiceMaster Management Services, Inc.
INTERNATIONAL:
None.
20
SCHEDULE 5.14(A)
CONTRACTS
Section (vii) of Schedule 5.14(a) is amended, supplemented and restated in its
entirety as follows:
(vii) Transition License Agreement dated September 30, 2000 between The
ServiceMaster Company and ServiceMaster Japan, Inc.
Letter Agreement dated September 30, 2000 between The ServiceMaster
Company and Brian Oxley and Chris Oxley, principals of ServiceMaster
Japan, Inc.
Letter Agreement dated September 30, 2000 between The ServiceMaster
Company and Brian Oxley
Distributorship Agreement effective January 1, 1999 between The
ServiceMaster Company and GlobalServe L.L.C., as amended.
International Licenses:
TERRITORY LICENSEE EXPIRATION DATE EXPIRATION OF RENEWAL PERIOD
--------- -------- --------------- ----------------------------
Australia/New Zealand Spotless Group Limited N/A (NOTE: Assignment and
----
Assumption relates only to
certain obligations to
provide updates and
technical assistance, and
such obligations expire
July 1, 2015)
Brazil Tecser Facilities Management June 26, 2008 June 26, 2018
Ltda.
Chile Modern Service Concepts December 9, 2004 December 9, 2014
China Bright China Service March 6, 2011 March 6, 2021
Industries Ltd.
Czech Rep. Euroservis a.s. ServiceMaster April 1, 2011 N/A
Czechoslovakia
Egypt The Egyptian Company for May 24, 2018 N/A
Superior Support Services
(Healthcare, Education and
Business and Industry)
Guam Six D Enterprises December 10, 2007 December 10, 2017
21
TERRITORY LICENSEE EXPIRATION DATE EXPIRATION OF RENEWAL PERIOD
--------- -------- --------------- ----------------------------
Hong Kong United MediCorp Pte Ltd. October 28, 2008 N/A
Japan Duskin Co. Ltd. April 1, 2002 April 1, 2012
(Healthcare)
Duskin Co. Ltd. October 31, 2006 October 31, 2016
(Industrial Commercial/
Education)
Japan Sanko Inc. December 20, 2011 N/A
(Healthcare Food Service)
Japan N/A (NOTE: Partial Assignment N/A N/A
of Letter Agreement dated
September 30, 2000 executed by
Brian Oxley and Andrew Bratzel)
Japan ServiceMaster Japan, Inc. Transitional N/A
(Industrial license to expire
Commercial/Education) according to its
terms (NOTE:
Includes September
30, 2000 Letter
Agreement executed
by William Pollard
and Brian Oxley)
Jordan ServiceMaster Jordan January 20, 2009 N/A
Korea Hyundai Industrial Development March 31, 2003 March 31, 2013
and Construction Co., Ltd.
(Healthcare, Education and
Business and Industry)
Kuwait Al-Essa Medical & Scientific September 9, 2009 N/A
Equipment Co. (Healthcare,
Education and Business and
Industry)
Lebanon Ali Mohurrak and Hassam March 25, 2009 March 25, 2019
Mohurrak
Malaysia MHL ServiceMaster PTE April 2, 2016 N/A
22
TERRITORY LICENSEE EXPIRATION DATE EXPIRATION OF RENEWAL PERIOD
--------- -------- --------------- ----------------------------
Mexico Servicios Afilidades December 14, 2013 December 14, 2033
Pro-Salud (NOTE: Includes
accompanying Trademark
Agreement)
Philippines Facilities Management Inc. April 11, 2011 April 11, 2026
Qatar Al-Azbi Trading Contracting & November 5, 2008 N/A
Services
Saudi Arabia Al Majal Al Saudi July 30, 2018 N/A
Singapore United MediCorp Pte Ltd. October 28, 2008 N/A
South Africa Sirius Development Foundation April 24, 2010 April 24, 2020
Taiwan United MediCorp. Pte Ltd. October 28, 2008 N/A
Thailand Vuteq Asia Co., Ltd. December 31, 2010 December 31, 2020
Turkey 4 U Construction Company March 1, 2010 March 1, 2020
U.A.E. UTS ServiceMaster Emirates January 5, 2008 N/A
Venezuela SM Services, C.A. June 28, 2010 June 28, 2020
23
SCHEDULE 8.4(D)
POLICIES ENDORSED TO NAME ARAMARK AS ADDITIONAL INSURED
POLICY TYPE AND CARRIER PERIOD
- ------------------------------ -----------------
General Liability - Zurich 11/30/96-11/30/01
Automobile Liability - Zurich 11/30/96-11/30/01
Foreign "DIC" Liability - Zurich 11/30/96-11/30/01
Third party pollution - AIG 11/30/96-11/30/01
Fiduciary - Chubb 11/30/96-11/30/01
EPLI - Chubb 11/30/96-11/30/01
Fidelity and crime - Chubb 11/30/96-11/30/01
24
SCHEDULE 8.4(E)
RUN OFF ENDORSEMENTS
POLICY TYPE AND CARRIER PERIOD
- -------------------------------------------- -----------------
Umbrella policy relating to general and 12/1/01-12/1/06
automobile liability ($150 million excess of
$101 million) - XL
Umbrella policy relating to general and 12/1/01-12/1/06
automobile liability ($75 million excess of
$251 million) - ACE
25
SCHEDULE 8.4(F)
EXTENDED REPORTING PERIOD ENDORSEMENTS
POLICY TYPE AND CARRIER PERIOD
- ----------------------------------- -----------------
Directors and Officers - Chubb 12/1/01-12/1/07
Excess D&O - CNA 12/1/01-12/1/07
Fiduciary - Chubb 12/1/01-12/1/06
EPLI - Chubb 12/1/01-12/1/06
Punitive Damage Wraparound - Chubb Atlantic 12/1/01-12/1/06
26